Petition for Writ of Certiorari — Concerned Citizens for Nuclear Safety, Inc., Petitioner v. Environmental Protection Agency, et al.

No. ______

In the

Supreme Court of the United States

__________________

CONCERNED CITIZENS FOR NUCLEAR SAFETY, INC.,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; UNITED STATES DEPARTMENT OF ENERGY;

TRIAD NATIONAL SECURITY, LLC,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

RICHARD H. DOLAN

Of Counsel

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, NY 10004

(212) 344-5400

LINDSAY A. LOVEJOY, JR.

Counsel of Record

LAW OFFICE OF

LINDSAY A. LOVEJOY, JR.

3600 Cerrillos Road, Unit 1001A

Santa Fe, NM 87505

(505) 983-1800

lindsay@lindsaylovejoy.com

Counsel for Petitioner

November 19, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

Members of petitioner, Concerned Citizens for

Nuclear Safety (CCNS), live in and have visited the Rio

Grande and its riparian areas near, and downgradient

from, the Los Alamos National Laboratory (LANL)

Radioactive Liquid Waste Treatment Facility

(RLWTF). They previously used and enjoyed this area

for recreation and farming. The RLWTF is a hazardous

waste facility, but it has no Resource Conservation and

Recovery Act, 42 U.S.C. 6921 et seq. (RCRA), hazardous

waste permit. In violation of the Clean Water Act, 33

U.S.C. 1251 et seq. (CWA), the Environmental

Protection Agency (EPA) issued a CWA permit for the

RLWTF, and that permit confers exemption from

RCRA regulation. The CCNS members are now

deterred from visiting the area, and their experience is

diminished, by the risks presented by the unlicensed

RLWTF. CCNS members would participate in RCRA

permitting proceedings, were they conducted.

Questions presented are:

1. Does petitioner CCNS have Article III

substantive standing to challenge the CWA permit?

2. Does petitioner CCNS have Article III

procedural standing to challenge the CWA permit,

where EPA’s action violated CWA and blocked the

entire RCRA permitting process?

ii

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings to this petition.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

STATEMENT OF RELATED PROCEEDINGS . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE WRIT. . . . . . . . 10

A. The Tenth Circuit Wrongfully Rejected

Petitioner’s Standing. . . . . . . . . . . . . . . . . . . 10

B. Procedural Standing . . . . . . . . . . . . . . . . . . . 17

C. This Case Merits the Court’s Review . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDIX

Appendix A Order Dismissing for Lack of

Jurisdiction in the United States

Court of Appeals for the Tenth Circuit

(April 23, 2020) . . . . . . . . . . . . . . . App. 1

iv

Appendix B F i n a l

Decision

Before the

Environmental Appeals Board

United States Environmental

Protection Agency Washington, D.C.

(March 14, 2018) . . . . . . . . . . . . . App. 12

Appendix C Letter, U.S. EPA, re: Request to

Terminate NPDES Permit

#NM0028355 as to Outfall #051 for

Radioactive Liquid Waste Treatment

Facility

(August 16, 2017) . . . . . . . . . . . . App. 42

Appendix D Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Tenth Circuit

(June 23, 2020) . . . . . . . . . . . . . . App. 48

Appendix E Statutory Provisions Involved . . App. 50

33 U.S.C. 1342(a)-(b). . . . . . . . . . App. 50

42 U.S.C. 6925(a) . . . . . . . . . . . . App. 55

v

Cases

TABLE OF AUTHORITIES

Allen v. Wright,

468 U.S. 737 (1984). . . . . . . . . . . . . . . . . . . . . . . 11

American Bottom Conservancy v. U.S. Army Corps

of Engineers, 650 F.3d 652 (7th Cir. 2011) . . . . 14

American Canoe Association v. City of Louisa Water

& Sewer Commission,

389 F.3d 536 (6th Cir. 2004). . . . . . . . . . . . . . . . 14

American Rivers & Alabama Rivers Alliance

v. FERC, 895 F.3d 32 (D.C. Cir. 2018). . . . . . . . 22

Animal Welfare Institute v. Martin,

623 F.3d 19 (1st Cir. 2010) . . . . . . . . . . . . . . . . . 13

Benham v. Ozark Materials River Rock, LLC,

885 F.3d 1267 (10th Cir. 2018). . . . . . . . . . . . . . 14

Center for Biological Diversity v. EPA,

861 F.3d 174 (D.C. Cir. 2017) . . . . . . . . . . . . . . . 18

Chicago v. EDF,

511 U.S. 328 (1994). . . . . . . . . . . . . . . . . . . . . . . . 3

Duke Power Co. v. Carolina Envtl. Study Grp.,

438 U.S. 59 (1978). . . . . . . . . . . . . . . . . . . . . . . . 12

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018). . . . . . . . . . . . . . . . . . . . . 18

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 629 F.3d 387 (4th Cir. 2011) . . 13

Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167 (2000) . . . passim

vi

Friends of the Santa Clara River v. United States

Army Corps of Eng’rs,

887 F.3d 906 (9th Cir. 2018). . . . . . . . . . . . . . . . 21

Heartwood, Inc. v. United States Forest Serv.,

230 F.3d 947 (7th Cir. 2000). . . . . . . . . . . . . . . . 20

Hunt v. Washington State Apple Ad. Comm’n,

432 U.S. 333 (1977). . . . . . . . . . . . . . . . . . . . . . . . 2

Interfaith Community Org. v. Honeywell Int’l, Inc.,

399 F.3d 248 (3d Cir. 2005) . . . . . . . . . . . . . 13, 16

Kisor v. Wilkie,

139 S.Ct. 2400 (2019) . . . . . . . . . . . . . . . . . . . . . . 6

Kuehl v. Sellner,

887 F.3d 845 (8th Cir. 2018). . . . . . . . . . . . . . . . . 4

La. Envtl. Action Network v. EPA,

955 F.3d 1088 (D.C. Cir. 2020) . . . . . . . . . . . . . . 15

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992). . . . . . . . . . . . . . 11, 17, 19, 25

Maine People’s Alliance v. Mallinckrodt, Inc.,

471 F.3d 277 (1st Cir. 2006) . . . . . . . . . . . . . . . . 13

Massachusetts v. EPA,

549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . . . . . 19

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010). . . . . . . . . . . . . . . . . . . . . . . 12

Montgomery Environmental Coalition v. Costle,

646 F.2d 568 (D.C. Cir. 1980) . . . . . . . . . . . . . . . 17

vii

Morton v. Mancari,

417 U.S. 535 (1974). . . . . . . . . . . . . . . . . . . . . . . 18

Murray Energy Corp. v. McCarthy,

2016 U.S. Dist. LEXIS 143404 (N.D.W.Va.

2016), rev’d on other grounds, 861 F.3d 529 (4th

Cir. 2017), cert. denied, 138 S. Ct. 649 (2018) . . 20

National Parks Conservation Association v.

Manson, 414 F.3d 1 (D.C. Cir. 2005) . . . . . . . . . 18

National Pork Producers Council v. U.S. EPA,

635 F.3d 738 (5th Cir. 2011). . . . . . . . . . . . . . 4, 18

New York Public Interest Research Group

v. Whitman, 321 F.3d 316 (2d Cir. 2003) . . . 13, 20

NRDC v. U.S. EPA,

542 F.3d 1235 (9th Cir. 2008). . . . . . . . . . . . 19, 22

NRDC v. Southwest Marine, Inc.,

236 F.3d 985 (9th Cir. 2000). . . . . . . . . . . . . . . . 14

Nuclear Energy Inst., Inc. v. EPA,

373 F.3d 1251 (D.C. Cir. 2004) . . . . . . . . . . . . . . 13

Nuclear Info. & Res. Serv. v. Nuclear Regulatory

Comm’n, 457 F.3d 941 (9th Cir. 2006) . . . . . . . . 21

Nulankeyutmonen Nkihtaqmikon v. Impson,

503 F.3d 18 (1st Cir. 2007) . . . . . . . . . . . . . . . . . 19

Riverkeeper v. United States EPA,

938 F.3d 1157 (11th Cir. 2019). . . . . . . . . . . 21, 23

Robert Wood Johnson Univ. Hosp., Inc.

v. Thompson, 2004 U.S. Dist. LEXIS 8498

(D.N.J. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

viii

Sierra Club v. Franklin County Power, LLC,

546 F.3d 918 (7th Cir. 2008). . . . . . . . . . . . . . . . 14

Sierra Club v. Johnson,

436 F.3d 1269 (11th Cir. 2006). . . . . . . . . . . 15, 21

Sierra Club, Lone Star Chapter v. Cedar Point Oil

Co., 73 F.3d 546 (5th Cir. 1996) . . . . . . . . . . . . . 13

Sierra Club v. Morton,

405 U.S. 727 (1972). . . . . . . . . . . . . . . . . . . . . . . . 9

Sierra Club v. U.S. Army Corps of Engineers,

645 F.3d 978 (8th Cir. 2011). . . . . . . . . . . . . . . . 21

Sierra Club v. U.S. EPA,

774 F.3d 383 (7th Cir. 2014). . . . . . . . . . . . . . . . 14

Sierra Club v. U.S. EPA,

793 F.3d 656 (6th Cir. 2015). . . . . . . . . . . . . . . . 14

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976). . . . . . . . . . . . . . . . . . . . . . . . 11

Simsbury-Avon Pres. Soc’y v. Metacon Gun Club,

Inc., 2006 U.S. Dist. LEXIS 60376

(D. Conn. Aug. 23, 2006). . . . . . . . . . . . . . . . . . . 16

Sugar Cane Growers Cooperative v. Veneman,

289 F.3d 89 (D.C. Cir. 2002). . . . . . . . . . . . . . . . 19

Texas v. United States,

809 F.3d 134 (5th Cir. 2015),

aff’d, 136 S.Ct. 2271 (2016) . . . . . . . . . . . . . . . . 20

Texas Independent Producers & Royalty

Owners Association v. EPA,

410 F.3d 964 (7th Cir. 2005). . . . . . . . . . . . . . . . 22

ix

Trustees for Alaska v. EPA,

749 F.2d 549 (9th Cir. 1984). . . . . . . . . . . . . . . . 17

Valley Forge Christian Academy v. Americans

United for Separation of Church and State,

454 U.S. 464 (1982). . . . . . . . . . . . . . . . . . . . . . . 10

Waterkeeper Alliance, Inc. v. U.S. EPA,

399 F.3d 486 (2d Cir. 2005) . . . . . . . . . . . . . . 4, 18

Wildearth Guardians v. U.S. BLM,

870 F.3d 1222 (10th Cir. 2017). . . . . . . . . . . . . . 21

Wright v. O’Day,

706 F.3d 769 (6th Cir. 2013). . . . . . . . . . . . . . . . 20

Statutes and Regulations

28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

33 U.S.C. 1251 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . i

33 U.S.C. 1251(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

33 U.S.C. 1342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. 1342(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

33 U.S.C. 1342(b)(1)(C)(iii) . . . . . . . . . . . . . . . . . . 5, 6

33 U.S.C. 1369(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6

40 C.F.R. § 122.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

40 C.F.R. § 122.64(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5

40 C.F.R. § 122.64(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 6

40 C.F.R. § 124.5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

x

40 C.F.R. § 124.5(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

40 C.F.R. § 260.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

40 C.F.R. § 264.1(g)(6) . . . . . . . . . . . . . . . . . . . . . . . . 3

40 C.F.R. §§ 264.110-.120 . . . . . . . . . . . . . . . . . . . . . 4

40 C.F.R. § 264.18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

40 C.F.R. §§ 264.190-.199 . . . . . . . . . . . . . . . . . . . . . 4

40 C.F.R. § 270.10(f). . . . . . . . . . . . . . . . . . . . . . . . 3, 4

40 C.F.R. § 270.14(b)(11) . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. 6903(27) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. 6921-6934. . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. 6921 et seq. . . . . . . . . . . . . . . . . . . . . . . i, 18

42 U.S.C. 6925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. 6961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. 6961(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. 9601 et seq. . . . . . . . . . . . . . . . . . . . . . . . . 23

42 U.S.C. 7621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

New Mexico Hazardous Waste Act, § 74-4-1 et seq.

NMSA 1978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1

PETITION FOR A WRIT OF CERTIORARI

Counsel for CCNS, petitioner herein, respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Tenth

Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1) is

an unreported order. The order of the court of appeals

denying rehearing and rehearing en banc (Pet. App. 48)

is unreported. The decision of the EPA Environmental

Appeals Board (EAB) is reported at 17 E.A.D. 586

(EAB 2018), Pet. App. 12. The decision of EPA Region

6 is unreported and appears at Pet. App. 42.

JURISDICTION

The court of appeals had jurisdiction under 33

U.S.C. 1369(b). The judgment of the court of appeals

was entered on April 23, 2020. (Pet. App. 1). A timely

petition for rehearing was denied on June 23, 2020.

(Pet. App. 48). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent provisions of RCRA and CWA appear in

the Appendix to the Petition. (Pet. App. 50-56).

2

STATEMENT

A. Background.

This case concerns the standing of CCNS1 to assert

that respondent EPA violated the CWA in issuing a

CWA permit for the RLWTF to respondents U.S.

Department of Energy (DOE) and Triad National

Security, LLC (Triad), and that DOE and Triad have

violated RCRA in operating the RLWTF. Standing is

a threshold jurisdictional requirement under Article III

of the Constitution.

Under the Tenth Circuit’s

erroneous decision, persons who live and use lands

downgradient from the RLWTF, and whose use and

enjoyment of those lands are diminished by the

RLWTF’s RCRA noncompliance, lack standing to

question its unlicensed operation.

CCNS is a nonprofit organization based in Santa Fe,

New Mexico. LANL is owned by DOE and operated by

DOE and Triad. LANL’s functions include design and

development of nuclear weapons. That work uses

radioactive and hazardous materials, the release of

which is dangerous to human health and the

environment.

The dispute here involves whether the RLWTF

must comply with RCRA. The RLWTF is a hazardous

waste management facility, recently reconstructed,

which normally would need to have a RCRA permit. 42

U.S.C. 6925. The Court has explained:

1

There is no issue concerning CCNS’s ability to represent the

interests of affected members under Hunt v. Washington State

Apple Ad. Comm’n, 432 U.S. 333, 343 (1977).

3

RCRA is a comprehensive environmental statute

that empowers EPA to regulate hazardous

wastes from cradle to grave, in accordance with

the rigorous safeguards and waste management

procedures of Subtitle C, 42 U.S.C. §§ 69216934.

Chicago v. EDF, 511 U.S. 328, 331 (1994). A RCRA

permit functions to prevent accidental releases of

hazardous waste, e.g., by imposing a detailed sitespecific permit, developed in a public process. 40

C.F.R. § 270.10(f). RCRA exemptions are read strictly.

See: Chicago, 511 U.S. at 338-39. Federal facilities are

specifically subject to RCRA. 42 U.S.C. 6961. The

President may exempt a federal facility if it is

determined to be in the “paramount interest” of the

United States.

42 U.S.C. 6961(a).

No such

determination has been made as to the RLWTF.

But the RLWTF has no RCRA permit. LANL has

instead obtained from EPA a CWA permit under 33

U.S.C. 1342, authorizing the RLWTF to discharge

pollutants via the RLWTF’s “Outfall 051,” and asserts

that, by statute and regulation, the CWA permit

exempts the RLWTF and its discharge from RCRA as

a “waste water treatment unit” and a CWA discharge.2

A CWA permit regulates the intentional discharge of

pollutants from an outfall, but it does not regulate the

construction or operation of the RLWTF, as RCRA

would, to prevent accidental leaks. The protections and

2

See 42 U.S.C. 6903(27); 40 C.F.R. § 260.10 (Tank system,

Wastewater treatment unit), and § 264.1(g)(6).

4

safety standards imposed by a RCRA permit are not

available under a CWA permit.3

Moreover, under its “zero-liquid-discharge”

program, LANL installed evaporation equipment, and

the RLWTF’s discharges ended in November 2010. For

many years, there has been no discharge from the

RLWTF,4 and LANL has stated no present intention to

discharge from the RLWTF. A CWA permit cannot

lawfully be issued for a non-discharging facility.

National Pork Producers Council v. U.S. EPA, 635 F.3d

738 (5th Cir. 2011); Waterkeeper Alliance, Inc. v. U.S.

EPA, 399 F.3d 486 (2d Cir. 2005).

However, LANL told EPA in 2012 that, if its two

evaporation systems were somehow both disabled, the

RLWTF might discharge pollutants.

EPA then

reissued the CWA permit, continuing the RCRA

exemption. Since there are no planned discharges, the

CWA permit functions only to exempt the RLWTF from

RCRA.

3

Under RCRA regulation, the RLWTF would be subject, inter alia,

to detailed protective requirements, calling for, e.g., a public

permitting process for any new construction (40 C.F.R. § 270.10(f)),

examination of the site’s compliance with seismic risk standards

(40 C.F.R. §§ 264.18, 270.14(b)(11)), assurances of the integrity of

tank systems, of which there are many at the RLWTF (40 C.F.R.

§§ 264.190-.199), and completeness of closure planning (40 C.F.R.

§§ 264.110-.120). Seismic compliance in particular has presented

problems for nearby LANL facilities, such as the Chemistry and

Metallurgy Research Replacement Building.

4

After the Record closed, LANL made one discharge, purportedly

to establish operational readiness.

5

As a result, CCNS members must live in the

shadow of the RLWTF, a hazardous waste facility that

has not been required to meet the environmental and

safety conditions that RCRA permitting would impose.

The unlicensed RLWTF presents risks to downgradient

residents and visitors. CCNS members’ use and

enjoyment of the downgradient land is diminished by

the risks of the RLWTF’s unlicensed operation.

Further, the CCNS members wish to participate in

RCRA permitting procedures, but the unlawful CWA

permit blocks all RCRA proceedings.

B. Proceedings Below.

CCNS asked EPA to terminate the CWA permit for

the RLWTF on the basis of a “change in any condition

that requires either a temporary or permanent

reduction or elimination of the permitted discharge” (33

U.S.C. 1342(b)(1)(C)(iii)) to allow RCRA to apply.

Request to Terminate at 16, June 17, 2016.5 EPA

Region 6 denied the Request to Terminate. Pet. App.

42, AR0000178-180. EPA stated that “EPA generally

defers to an owner/operator’s determination that a

discharge could occur and that permit coverage is

needed.”

Pet. App. 45.

EPA emphasized that

5

Under 40 C.F.R. § 124.5(a), a NPDES permit may be terminated

“for the reasons specified in § 122.62 or § 122.64.” Pursuant to 40

C.F.R. § 124.5(d), CCNS’s Request sought an agency proceeding to

determine whether the Permit should be terminated as to Outfall

051 for reasons set forth in 40 C.F.R. § 122.64(a) and 33 U.S.C.

1342(b)(1)(C)(iii), viz., “A change in any condition that requires

either a temporary or permanent reduction or elimination of any

discharge . . .” Id. A list of attachments to the Request, Exhibits

A through UU, is at AR0000257-259. The Exhibits are at

AR0000260-1089.

6

consideration of the RCRA exemption that results from

a CWA permit was

outside the scope of our decision

and

has no bearing on EPA’s NPDES permitting

decisions, which must be made based on the

requirements of the CWA and implementing

regulations.

Pet. App. 46, AR0000180 (emphasis supplied). CCNS

appealed to the EPA EAB. AR0001664-1665. The EAB

denied relief, deeming CCNS’s Request untimely.6

CCNS appealed to the Tenth Circuit under 33

U.S.C. 1369(b). At that point, the Government raised

an issue about standing, and CCNS presented

6

In reviewing the Tenth Circuit’s ruling on standing, there is no

occasion for the Court to consider the EAB’s decision, which the

court of appeals did not address. In any case, the EAB read 40

C.F.R. § 122.64(a)(4) to require that a “cause” for termination must

have occurred, and the request for termination must be submitted,

during the current permit term (which began in 2014).

AR0001665. These conditions are not contained in the rule or the

statute. The EAB’s construction of 40 C.F.R. § 122.64(a)(4) could

not be sustained, because the rule restates language from 33

U.S.C. 1342(b)(1)(C)(iii), which contains none of the conditions

imposed by the EAB. Kisor v. Wilkie, 139 S.Ct. 2400, 2417 n. 5

(2019) (no deference where agency interprets rule that parrots the

statutory text.). The EAB stated that it did not deem CCNS’s

request untimely; rather, it held that CCNS did not prove a

“change in condition.” AR0001667 n.15. But it is undisputed that

evaporators were installed, and discharges stopped. The EAB held

that CCNS did not present the issue at the right time—i.e., that

the Request was untimely.

7

affidavits of two members, Joni Arends and J. Gilbert

Sanchez, answering it. (CCNS Reply Brief, Jan. 25,

2019, Attachments). They stated, first, that pollution

from various LANL facilities has degraded the Rio

Grande and its shores, diminishing their experience of

the area:

8. . . . Since it has become public knowledge

that LANL has released hazardous chemicals to

the Rio Grande and to the ground water flowing

towards the Rio Grande, my appreciation for the

river and its shores, and my use of that land and

water have sharply declined. I no longer regard

the Rio Grande and its riparian area as a

desirable location for recreation and enjoyment.

This is difficult for me, because I grew up on the

shores of this river and regard it as my home.

9. Riverside property such as mine is now

considered undesirable on account of its

proximity to the Rio Grande, which is generally

known to be contaminated by releases from

LANL and considered unsuitable for swimming,

drinking, fishing, and recreation.

Sanchez Aff. ¶¶ 8, 9.

Next, Mr. Sanchez described specifically his

concerns about the RLWTF:

15. While one cannot be certain that the LANL

RLWTF is currently releasing contamination

that goes to the river, it is known that that

RLWTF manages waste that is hazardous under

the New Mexico Hazardous Waste Act (“HWA”)

and that the RLWTF is not operated in

8

accordance with regulations under the HWA,

which are intended to effectuate the Resource

Conservation and Recovery Act (“RCRA”) in New

Mexico and to protect human health and the

environment. In this situation, I am concerned

and fearful that the management of LANL will

allow the release of hazardous constituents from

the RLWTF, as they have allowed the release of

contaminants in the past, to the detriment of

nearby residents and users of the Rio Grande

such as me.

*

*

*

17. If a public permitting process under the

HWA were conducted for the RLWTF, it would

result in the application of the HWA safety

regulations to all of the operations of the

RLWTF, including regulations that cover the

operation of tanks, tank systems, pipes and pipe

connections; monitoring and inspections; and

characterization of hazardous wastes. If a HWA

permit were adopted for the RLWTF, and were

administered by the New Mexico Environment

Department, conditions on San Ildefonso Pueblo

near the RLWTF and along the Rio Grande

down-gradient from LANL would improve, and

I would be more willing to use the riparian areas

as I have used them in the past.

Ms. Arends made similar statements. Arends Aff.

¶¶ 16, 17, attached to CCNS Reply Brief, Jan. 25, 2019.

Both witnesses stated that they would participate in

9

RCRA permitting proceedings7 and would consider

returning to the area if the RLWTF had a RCRA

permit. Sanchez Aff. ¶ 18; Arends Aff. ¶ 17.

The Tenth Circuit dismissed the case based on an

asserted lack of standing. The court’s unreported

Order (April 23, 2020, Pet. App. 1, rehearing denied,

June 23, 2020, Pet. App. 48) quoted language from

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 183 (2000) (quoting from

Sierra Club v. Morton, 405 U.S. 727, 735 (1972)), that

states:

Environmental plaintiffs adequately allege

injury in fact when they aver that they use the

affected area and are persons for whom the

aesthetic and recreational values of the area will

be lessened by the challenged activity.’ Benham

v. Ozark Materials River Rock, LLC, 885 F.3d

1267, 1273 (10th Cir. 2018).

Order at 5, Pet. App. 5. The court acknowledged that

the CCNS members claimed injury in their “diminished

use and enjoyment of the Rio Grande River.” (Pet. App.

6).

But, critically, the court then misstated the injury,

asserting incorrectly that CCNS contended that the

RCRA exemption “enable[d] the Lab to discharge waste

into the Rio Grande River” (Pet. App. 8) (emphasis

supplied). The court continued, stating that CCNS

7

RCRA is applied in New Mexico by the state Environment

Department under the New Mexico Hazardous Waste Act, § 74-4-1

et seq. NMSA 1978.

10

“has not offered a single example of a Lab activity that

has contributed to increased contamination” of the river

and would be prohibited under RCRA (Pet. App. 8)

(emphasis supplied). The court stated that CCNS

“presents no evidence that any Lab activity would be

prohibited under either RCRA or the HWA.” (Pet. App.

9) (emphasis supplied). Such statements misstated

CCNS’s claims about the injury sustained by its

members and misconceived CCNS’s burden where

there is a failure to apply RCRA.

CCNS also asserted that it had procedural standing

(CCNS Reply Brief at 6-9, Jan. 25, 2019), since EPA’s

unlawful issuance of the CWA permit blocked the

entire RCRA permitting process. The Tenth Circuit

disagreed, stating that CCNS’s “injury flows directly

from the EPA’s decision to issue the NPDES permit; it

does not result from any failure by the EPA to follow

the proper decision-making procedure in issuing this

permit” (Pet. App. 10)—even though CCNS had

contended that a CWA permit may not issue for a nondischarging facility, EPA had ignored the impact of a

CWA permit on RCRA enforcement, and the CWA

permit plainly blocked the RCRA process.

REASONS FOR GRANTING THE WRIT

A.

The Tenth Circuit Wrongfully Rejected

Petitioner’s Standing.

Standing is an “irreducible minimum” requirement

for access to a federal court. Valley Forge Christian

Academy v. Americans United for Separation of Church

and State, 454 U.S. 464, 472 (1982). Standing is

“perhaps the most important” condition of justiciability,

11

Allen v. Wright, 468 U.S. 737, 750 (1984). A showing of

standing “is an essential and unchanging” predicate to

Article III jurisdiction. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). The three elements of

standing are injury-in-fact, traceability, and

redressability. Lujan, 504 U.S. at 560; Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 38-39 (1976).

Laidlaw explains the injury requirement in an

environmental case:

The relevant showing for purposes of Article III

standing, however, is not injury to the

environment but injury to the plaintiff. To insist

upon the former rather than the latter as part of

the standing inquiry . . . is to raise the standing

hurdle higher than the necessary showing for

success on the merits in an action alleging

noncompliance with an NPDES permit.

528 U.S. at 181. Under Laidlaw, injury is established

where the plaintiff is deterred from use of a certain

area, or his or her enjoyment of such area is

diminished, by concern about unlawful contamination:

Focusing properly on injury to the plaintiff, the

District Court found that FOE had

demonstrated sufficient injury to establish

standing. . . . For example, FOE member

Kenneth Lee Curtis averred in affidavits that he

lived a half-mile from Laidlaw’s facility; that he

occasionally drove over the North Tyger River,

and that it looked and smelled polluted; and that

he would like to fish, camp, swim, and picnic in

and near the river between 3 and 15 miles

downstream from the facility, as he did when he

12

was a teenager, but would not do so because he

was concerned that the water was polluted by

Laidlaw’s discharges.

Id. 181-82. The Court required no more to uphold

standing. 528 U.S. at 183. Here, the CCNS members

similarly state that their concerns about the operation

of the unlicensed RLWTF—violative of numerous

RCRA requirements—diminished their use and

enjoyment of the Rio Grande and its riparian areas.

Standing is established when a plaintiff is subjected

to the risks of an environmental violation: Monsanto

Co. v. Geertson Seed Farms, 561 U.S. 139, 153 n.3

(2010), finds injury-in-fact when deregulation “pose[d]

a significant risk of contamination to respondents’

crops” (emphasis supplied).

Duke Power Co. v.

Carolina Envtl. Study Grp., 438 U.S. 59, 73-74 (1978),

bases standing upon the risks of radiation from nuclear

facilities. A resident near a proposed waste disposal

site has standing to challenge its regulation based on

the risk:

Although radionuclides escaping from the Yucca

repository may not reach Goedhart’s community

for thousands of years, his injury is “actual or

imminent,” for he lives adjacent to the land

where the Government plans to bury 70,000

metric tons of radioactive waste—a sufficient

harm in and of itself. See La. Envtl. Action

Network v. United States EPA, 335 U.S. App.

D.C. 247, 172 F.3d 65, 67-68 (D.C. Cir. 1999)

(holding that an environmental group

established constitutional standing where its

members lived near a landfill into which an EPA

13

regulation allegedly would permit certain

hazardous wastes to be deposited).

Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266

(D.C. Cir. 2004). The Tenth Circuit’s erroneous

position on standing conflicts with holdings in other

circuits.8

8

First Circuit: Animal Welfare Institute v. Martin, 623 F.3d 19,

25-26 (1st Cir. 2010) (Plaintiffs’ interest in observing Canada lynx

in the wild supports suit to compel application for incidental take

permit under Endangered Species Act); Maine People’s Alliance v.

Mallinckrodt, Inc., 471 F.3d 277, 285 (1st Cir. 2006) (“Mallinckrodt

has created a substantial probability of increased harm to the

environment. That increased risk, in turn, rendered reasonable

the actions of the plaintiffs’ members in abstaining from their

desired enjoyment of the Penobscot.”).

Second Circuit: New York Public Interest Research Group v.

Whitman, 321 F.3d 316, 325-26 (2d Cir. 2003) (PIRG members’

“allegations about the health effects of air pollution and of

uncertainty as to whether the EPA’s [permitting] actions expose

them to excess air pollution are sufficient to establish injury-infact, given that each lives near a facility subject to Title V

permitting requirements.”).

Third Circuit:

Interfaith Community Organization v.

Honeywell Int’l, Inc., 399 F.3d 248, 257 (3d Cir. 2005) (“The

individual Plaintiffs, in establishing injury-in-fact, have shown

sufficiently direct and present concerns, neither general nor

unreasonable, that constitute a legally cognizable injury . . .”).

Fourth Circuit: Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 629 F.3d 387, 395 (4th Cir. 2011) (“[T]he plaintiffs

were not required to present evidence of actual harm to the

environment so long as a direct nexus existed between the

plaintiffs and the ‘area of environmental impairment.’”).

Fifth Circuit: Sierra Club, Lone Star Chapter v. Cedar Point

Oil Co., 73 F.3d 546, 556 (5th Cir. 1996) (“All of the affiants

14

expressed fear that the discharge of produced water will impair

their enjoyment of these activities because these activities are

dependent upon good water quality.”).

Sixth Circuit: Sierra Club v. U.S. EPA, 793 F.3d 656, 663-65

(6th Cir. 2015) (EPA’s erroneous designation of Clean Air Act

attainment area creates risk constituting injury); American Canoe

Association v. City of Louisa Water & Sewer Commission, 389 F.3d

536, 541 (6th Cir. 2004) (“Kash’s averments are virtually

indistinguishable from those that the Court found sufficient to

establish an injury in fact in Laidlaw.”).

Seventh Circuit: Sierra Club v. U.S. EPA, 774 F.3d 383, 392

(7th Cir. 2014) (“[T]he increased probability of injury to Sierra

Club members creates standing here . . .”); American Bottom

Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652, 658

(7th Cir. 2011) (“even a small probability of injury is sufficient to

create a case or controversy—to take a suit out of the category of

the hypothetical—provided of course that the relief sought would,

if granted, reduce the probability.”); Sierra Club v. Franklin

County Power, LLC, 546 F.3d 918, 925 (7th Cir. 2008) (“This ‘likely

exposure’ to pollutants is ‘certainly something more than an

“identifiable trifle” even if the ambient level of air quality does not

exceed [certain national limits].’”).

Eighth Circuit: Kuehl v. Sellner, 887 F.3d 845, 850-51 (8th Cir.

2018) (Plaintiffs have standing where injured by mistreatment of

endangered species in captivity).

Ninth Circuit: NRDC v. Southwest Marine, Inc., 236 F.3d 985,

994 (9th Cir. 2000) (“Here, members of the plaintiff organizations,

and individual plaintiff Kenneth Moser, testified that they have

derived recreational and aesthetic benefit from their use of the Bay

(including areas of the Bay next to Defendant’s shipyard), but that

their use has been curtailed because of their concerns about

pollution, contaminated fish, and the like.”).

Tenth Circuit in 2018: Benham v. Ozark Materials River Rock,

LLC, 885 F.3d 1267, 1273 (10th Cir. 2018) (“Here, Mr. Benham has

shown injury in fact by maintaining that he regularly swims and

fishes in Saline Creek and that his ability to do so has been

15

The Tenth Circuit ignored the holdings of this Court

and other circuits, demanding proof that the Rio

Grande had been polluted by unlawful discharges from

the RLWTF. (Pet. App. 8, 9). That ruling erroneously

shifts the focus away from injury to the CCNS

members and onto environmental damage, and it

“raise[s] the standing hurdle higher than the necessary

showing for success on the merits,” contrary to

Laidlaw’s holding that standing does not require proof

of ultimate liability. Laidlaw, 528 U.S. at 181. The

court below invoked the traceability requirement (Pet.

App. 8), but

the ‘fairly traceable’ requirement ‘does not mean

that plaintiffs must show to a scientific certainty

that defendant’s [actions], and defendant’s

[actions] alone, caused the precise harm suffered

by plaintiffs . . . . The fairly traceable

requirement . . . is not equivalent to a

requirement of tort causation.’ [Pub. Interest

diminished by Ozark’s discharge of material into the creek and its

surrounding wetlands.”).

Eleventh Circuit: Sierra Club v. Johnson, 436 F.3d 1269, 1279

(11th Cir. 2006) (“Judge Doremus’ affidavit brings him within that

[Laidlaw] description, assuming that reduced aesthetic and

recreational values stemming from concern about pollution

qualifies. It does.”).

D.C. Circuit: La. Envtl. Action Network v. EPA, 955 F.3d 1088,

1095 (D.C. Cir. 2020) (Standing found where “All of the members

allege that they experience various symptoms that they attribute

to emissions from neighboring pulp mills, and each alleges having

curtailed favored activities accordingly.”).

16

Research Grp. v. Powell Duffryn Terminals, 913

F.2d 64, 72 (3d Cir. 1990)].

Interfaith Community Org. v. Honeywell Int’l, Inc., 399

F.3d 248, 257 (3d Cir. 2005).

Again:

Thus, plaintiffs in this case . . . need not show

violation of the Clean Water Act permitting

requirements, nor actual damage to the

Farmington River from lead pollution, to

establish standing.

Simsbury-Avon Pres. Soc’y v. Metacon Gun Club, Inc.,

2006 U.S. Dist. LEXIS 60376, at *9 (D. Conn. Aug. 23,

2006).

The Tenth Circuit ignored these established rules.

The decision below would require plaintiffs to establish

that a facility, operating illegally without any permit,

and causing risks to its neighbors, has, in addition,

actually leaked contaminants, and those contaminants

have reached public land or water—just to establish

standing.

No justification was offered for this

expansive enlargement of standing requirements.9

9

This case is not moot. The Tenth Circuit stated that this case is

moot because the CWA permit has expired. Pet. App. 2 n. 1. The

permit has not expired. DOE and Triad have filed a renewal

application, extending the permit until the end of the renewal

process. 40 C.F.R. § 122.6. Moreover, the proposed renewal

permit also authorizes discharges through Outfall 051, thus

presenting the same legal issue as the present permit. The issue

is capable of repetition yet evading review—an established

17

B.

Procedural Standing.

The Tenth Circuit also misstated, and wrongfully

rejected, procedural standing. It is established that

The person who has been accorded a procedural

right to protect his concrete interests can assert

that right without meeting all the normal

standards for redressability and immediacy.

Thus, under our case law, one living adjacent to

the site for proposed construction of a federally

licensed dam has standing to challenge the

licensing agency’s failure to prepare an

environmental impact statement, even though

he cannot establish with any certainty that the

statement will cause the license to be withheld

or altered, and even though the dam will not be

completed for many years.

Lujan, 504 U.S. at 572 n. 7. The Tenth Circuit’s ruling

rejecting procedural standing is flatly inconsistent with

Lujan. The court below stated that CCNS’s

injury flows directly from the EPA’s decision to

issue the NPDES permit; it does not result from

any failure by the EPA to follow the proper

decision-making procedure in issuing the permit.

(Pet. App. 10).

But CCNS asserted numerous

violations underlying EPA’s issuance of a CWA permit,

and, as in Lujan, CCNS was not required to “establish

exception to mootness. Trustees for Alaska v. EPA, 749 F.2d 549,

555-56 (9th Cir. 1984); Montgomery Environmental Coalition v.

Costle, 646 F.2d 568, 578-79 (D.C. Cir. 1980).

18

with any certainty that . . . the license [will] be

withheld or altered . . .”.

Thus, CCNS alleged that EPA erroneously issued a

CWA permit for a non-discharging facility. The remote

possibility of a discharge in the unlikely event that

both evaporation systems fail is plainly not the

statutorily required “discharge of [a] pollutant.” 33

U.S.C. 1342(a). EPA disregarded decisions holding

that a CWA permit may not issue for a non-discharging

facility. National Pork Producers Council v. U.S. EPA,

635 F.3d 738 (5th Cir. 2011); Waterkeeper Alliance, Inc.

v. U.S. EPA, 399 F.3d 486 (2d Cir. 2005).

And EPA, despite being charged with application of

both CWA and RCRA (33 U.S.C. 1251(d); 42 U.S.C.

6921), explicitly refused to consider the impact of a

CWA permit on RCRA enforcement, forgetting that it

has no authority to “pick and choose” the federal law

that it will apply and, instead, must give effect to both.

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018);

Morton v. Mancari, 417 U.S. 535, 551 (1974). Under

EPA’s decision, neither statute is effective: The CWA

permit regulates nothing, because there is no

discharge. But it blocks the RCRA process, thwarting

RCRA’s preventive purposes—a direct and “connected”

result of the CWA permit. Center for Biological

Diversity v. EPA, 861 F.3d 174, 184 (D.C. Cir. 2017); see

also National Parks Conservation Association v.

Manson, 414 F.3d 1, 4 (D.C. Cir. 2005). EPA, by

issuing the unlawful CWA permit, denied CCNS

members the “procedural right to protect [their]

concrete interests,” Lujan, 504 U.S. at 572 n. 7—the

19

definition of procedural standing. See Massachusetts v.

EPA, 549 U.S. 497, 517-18 (2007).

The Tenth Circuit objected that CCNS had not

shown what contamination a RCRA permit would have

prohibited (Pet. App. 8, 9). But it is not CCNS’s burden

to establish what a RCRA permit would prohibit, if one

were issued. NRDC v. U.S. EPA, 542 F.3d 1235, 124546 (9th Cir. 2008). All that is required is “some

possibility that the requested relief will prompt the

injury-causing party to reconsider the decision that

allegedly harmed the litigant.” Massachusetts v. EPA,

549 U.S. at 518. Thus:

A plaintiff who alleges a deprivation of a

procedural protection to which he was entitled

never has to prove that if he had received the

procedure the substantive result would have

been altered. All that is necessary is to show

that the procedural step was connected to the

substantive result.

Sugar Cane Growers Cooperative v. Veneman, 289 F.3d

89, 94-95 (D.C. Cir. 2002).

The court below departed from the many decisions

holding that procedural omissions confer standing on

persons exposed to consequent environmental risks.10

10

Examples are as follows:

First Circuit: Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18, 29 (1st Cir. 2007) (Plaintiffs “clearly established a

demonstrable risk to their interests in Split Rock as a result of

BIA’s alleged failure to adequately assess the dangers associated

with the lease as required by federal law.”).

20

Second Circuit: N.Y. Pub. Interest Research Grp. v. Whitman,

321 F.3d 316, 326 (2d Cir. 2003) (Members of environmental

organization establish standing based on uncertainty as to

whether they are exposed to harmful pollutants under Clean Air

Act permits allegedly arising from “administrative failure.”).

Third Circuit (district court): Robert Wood Johnson Univ.

Hosp., Inc. v. Thompson, 2004 U.S. Dist. LEXIS 8498 (D.N.J. 2004)

(Plaintiff hospital corporation has standing to challenge HHS

approval of demonstration project without consideration of

statutory prohibitions.).

Fourth Circuit (district court): Murray Energy Corp. v.

McCarthy, 2016 U.S. Dist. LEXIS 143404 (N.D.W.Va. 2016), rev’d

on other grounds, 861 F.3d 529 (4th Cir. 2017), cert. denied, 138 S.

Ct. 649 (2018) (Energy companies asserted EPA’s failure to

perform its duties under 42 U.S.C.S. § 7621, which required EPA

to evaluate potential loss or shifts of employment from the

administration or enforcement of the Clean Air Act).

Fifth Circuit: Texas v. United States, 809 F.3d 134, 150-51 (5th

Cir. 2015), aff’d, 136 S.Ct. 2271 (2016). (“When a litigant is vested

with a procedural right, that litigant has standing if there is some

possibility that the requested relief will prompt the injury-causing

party to reconsider the decision that allegedly harmed the

litigant.”).

Sixth Circuit: Wright v. O’Day, 706 F.3d 769, 773 (6th Cir.

2013) (Plaintiff has procedural standing where he seeks “to enforce

a procedural requirement that if disregarded would impair his

concrete interests.”).

Seventh Circuit: Heartwood, Inc. v. United States Forest Serv.,

230 F.3d 947, 952 (7th Cir. 2000) (“[W]here the Service fails ‘to

permit [plaintiffs] to participate in the public review of the

decision’ to establish a categorical exclusion and forego

performance of an EA, and this decision affects plaintiffs’ ability to

use and enjoy Service land, this is enough to show Article III

standing.”).

21

Eighth Circuit: Sierra Club v. U.S. Army Corps of Engineers,

645 F.3d 978, 987 (8th Cir. 2011) (“The Hunting Club, whose

property lies adjacent to the plant site and some of whose members

reside on it, challenged among other things the Corps’ failure to

prepare an EIS. See Hunting Club Complaint at ¶¶ 200-01. The

Hunting Club alleged an adequate injury in fact under the Lujan

standard.”).

Ninth Circuit: Friends of the Santa Clara River v. United

States Army Corps of Eng’rs, 887 F.3d 906, 918 (9th Cir. 2018) (“In

order to establish an injury in fact in the context of a claimed

procedural error in an agency’s decisionmaking process, a plaintiff

must show that “(1) the [agency] violated certain procedural rules;

(2) these rules protect [a plaintiff’s] concrete interests; and (3) it is

reasonably probable that the challenged action will threaten their

concrete interests.” Haugrud, 848 F.3d at 1232 (alterations in

original) (quoting Nuclear Info. & Res. Serv. v. Nuclear Regulatory

Comm’n, 457 F.3d 941, 949 (9th Cir. 2006)).”).

Tenth Circuit in 2017: Wildearth Guardians v. U.S. BLM, 870

F.3d 1222, 1231 (10th Cir. 2017) (“Here, the Plaintiffs pointed out

that the increased risk of environmental harm is directly tied to

BLM’s inadequate alternatives comparison. ‘[T]he normal

standards for redressability are [also] relaxed’ in the NEPA

context. Id. at 452 (quoting Defenders of Wildlife, 504 U.S. at 572

n.7). “[A] plaintiff need not establish that the ultimate agency

decision would change upon [NEPA] compliance” but “rather . . .

that its injury would be redressed by . . . requiring the [agency] to

comply with [NEPA]’s procedures.” Id.).

Eleventh Circuit: Riverkeeper v. U.S. EPA, 938 F.3d 1157, 1163

(11th Cir. 2019) (“Those statements are enough to establish injury

in fact. . . . [S]ee also Sierra Club v. Johnson (Johnson I), 436 F.3d

1269, 1279 (11th Cir. 2006) (concluding that the plaintiff’s “injury

in fact exists as a result of concerns about pollution, concerns that

arise because the failure to use one of the mandated public

participation procedures leaves him uncertain about whether

pollution is being emitted in illegal quantities.”).

22

A failure to regulate (as, here, EPA has blocked RCRA)

is a procedural violation, properly asserted by a person

injured by that failure. NRDC v. U.S. EPA, 542 F.3d at

1245 (Standing exists to challenge EPA’s failure to

regulate stormwater discharges under CWA; “[T]he

members’ statements that their use of specific

waterways has been diminished due to their concerns

about discharge from a particular source (here, the

construction sites) are sufficient to establish injury in

fact.”). Again:

Even though the NRDC members cannot

establish the immediacy of an injury from

construction activities operating under the

General Permit, the NRDC nonetheless has

standing to challenge the EPA’s failure to

mandate public availability of the NOI and the

SWPPP, and its failure to provide the

opportunity for a public hearing related to the

NOI and the SWPPP.

Texas Independent Producers & Royalty Owners

Association v. EPA, 410 F.3d 964, 977 (7th Cir. 2005).

Yet again:

The declarations are also adequate to show that

the EPA’s decision not to commence withdrawal

D.C. Circuit: American Rivers & Alabama Rivers Alliance v.

FERC, 895 F.3d 32, 42 (D.C. Cir. 2018) (“Requiring the

Commission to prepare an Environmental Impact Statement

might cause the Commission to gather more information that could

improve the conditions in the license and the conditions of the

Coosa River. Under these circumstances, the Conservation Groups

have established standing to challenge the Coosa River Project

license.”).

23

proceedings is a cause of the alleged injuries.

“The proper focus on causation is not harm to

the environment, but harm to the plaintiffs.”

Jacobs, 463 F.3d at 1172.

Riverkeeper v. United States EPA, 938 F.3d 1157, 1163

(11th Cir. 2019).

C.

This Case Merits the Court’s Review.

The ruling below limits standing in environmental

cases by imposing, without explanation, conditions that

this Court has rejected. Unless it is reversed, it will

inevitably cause dismissal of challenges to

environmental violations at DOE facilities within the

Tenth Circuit and beyond. The ruling would apply to

RCRA violations at New Mexico DOE facilities, e.g.,

Sandia National Laboratories, the Waste Isolation Pilot

Plant, and LANL—all major federal facilities that

present numerous environmental challenges. Eight

additional federal facilities hold RCRA permits in New

Mexico.11 The Tenth Circuit’s new tests for standing

will also apply to disputes under other environmental

statutes, such as the CWA and the Comprehensive

Environmental Response, Compensation, and Liability

Act, 42 U.S.C. 9601 et seq. Moreover, the decision

would bear upon standing in litigation against private

entities; New Mexico has 12 outstanding permits for

private RCRA facilities.12 The decision would be

11

New Mexico Environment Department web site, Oct. 13, 2020,

https://www.env.nm.gov/hazardous-waste/permitted-facilities.

12

New Mexico Environment Department web site, Oct. 13, 2020,

https://www.env.nm.gov/hazardous-waste/permitted-facilities.

24

immediately applicable to cases in other states in the

Tenth Circuit and will certainly be argued in states

outside the circuit.

If the decision below remains uncorrected,

remediation of environmental violations would be

artificially restricted to cases distinguished only by the

appearance of visible contaminants, despite the

occurrence of injury-in-fact to plaintiffs. The Tenth

Circuit offers no justification for the major changes it

makes in the law of standing. The Court should grant

the writ so that its changes in standing law can be

examined and rejected.

The questions raised by this petition were timely

presented below and have been preserved for this

Court’s review. The issue of petitioner’s standing was

considered and decided by the Tenth Circuit’s ruling.

There is no procedural or other bar to this Court’s

consideration and disposition on the merits of the

questions presented in this petition.

CONCLUSION

The CCNS members here demonstrated diminished

use and enjoyment of the Rio Grande and its riparian

areas, caused by their concerns over the undisputed

operation of the RLWTF in violation of

RCRA—satisfying this Court’s precedents on

environmental standing.

The Tenth Circuit’s

additional demands depart utterly from the holdings of

this Court and the courts of appeals. The decision

below, shaded from public view in an unpublished

order, negates the pronouncements of Congress. It

defies the principles set forth in Laidlaw, Lujan, and

25

legions of appellate decisions. Its demands exceed

constitutional requirements and prevent the

enforcement of federal rights. The decision is not

amenable to legislative remedy. To restore the

consistency of the constitutional law of standing, this

Court should grant certiorari to review and reverse the

decision below.

Respectfully submitted,

LINDSAY A. LOVEJOY, JR.

Counsel of Record

LAW OFFICE OF LINDSAY A. LOVEJOY, JR.

3600 Cerrillos Road, Unit 1001A

Santa Fe, NM 87505

(505) 983-1800

lindsay@lindsaylovejoy.com

RICHARD H. DOLAN

Of Counsel

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, NY 10004

(212) 344-5400

Counsel for Petitioner