Petition for Writ of Certiorari — Hazardous Waste Treatment Council v. Environmental Protection Agency

88-1532,

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

HAZARDOUS WASTE TREATMENT COUNCIL.

Pe titio; CT.

ENVIRONMENTAL PROTECTION AGENCY,

Re sponde nt,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Of Counsel:

DAVID R. CASE

HAZARDOUS WASTE

TREATMENT COUNCIL

1440 New York Ave., N.W.

Suite 310

Washington, D.C. 20005

(202) 783-0870

CLIFTON S. ELGARTEN *

RIDGWAY M. HALL, JR.

LUTHER ZEIGLER

CROWELL & MORING

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2505

(202) 624-2500

* Counsel of Record

for the Petitione

WILSON - EPES PRINTING Co., INc.

- 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED FOR REVIEW

The Resource Conservation and Recovery Act of 1976

(“RCRA”), 42 U.S.C. §§ 6901 et seq., is intended, among

other things, to reduce the threat to the environment

posed by hazardous wastes. In these cases, Petitioner

Hazardous Waste Treatment Council, a national organi-

zation of firms in the business of treating hazardous

wastes, sought review of certain Environmental Protec-

tion Agency (“EPA”) rules on the ground, inter alia,

that those rules were too lax and, therefore, inconsistent

with the language and intent of RCRA.

In Clarke v. Securities Industry Association, 479 U.S.

388 (1987), this Court held that under the Administrative

Procedure Act, a party who has Article III standing

may obtain review to hold an agency to the require-

ments of a statute so long as his interests bear “a

plausible relationship to the policies underlying” the

statute in question. But detecting an “apparent anom-

aly” in business organizations seeking stricter environ-

mental regulation, the Court of Appeals ordered the

parties to address petitioner’s standing under RCRA to

take pro-environment positions, and ultimately held that

petitioner was barred from pursuing pro-environment

“competitor claims.” The question presented by this peti-

tion is:

Whether a trade association whose members provide

the services needed to fulfill Congress’ environmental

objectives, who have invested in and developed the

technology that Congress intended to promote as a

necessary step toward achieving its environmental

objectives, and whose businesses are directly injured

by EPA’s refusal properly to implement provisions

of RCRA that create the market for their services,

lacks standing to obtain judicial review of the inade-

quacy of EPA’s implementing regulations because it

is unable to show that Congress expressly intended

to benefit such firms or that it is an “unusually suit-

able champion” of Congress’ objectives.

(i)

ii

PARTIES TO THE PROCEEDINGS BELOW

Pursuant to Rule 19.4 of the Rules of this Court, this

petition seeks review of two judgments of the United

States Court of Appeals for the District of Columbia

Circuit. The United States Environmental Protection

Agency was the sole designated respondent in all of the

cases at issue in each judgment. In the case designated

No. 86-1143 below, the Hazardous Waste Treatment

Council was sole petitioner.* Edison Electric Institute,

National Rural Electric Cooperative Association, Amer-

ican Public Power Association, and their individual util-

ity members intervened in support of EPA. The Hazard-

ous Waste Treatment Council was the petitioner in the

cases designated Nos. 87-1548 and 88-1177, and Petro-

Chem Processing, Inc. was the petitioner in No. 87-

1487.** These latter three cases were consolidated by

the Court of Appeals.

* The Hazardous Waste Treatment Council is a national trade

association of firms and individuals engaged in, inter alia, the

high-technology treatment and recycling of hazardous wastes. Pur-

suant to this Court’s Rule 28.1, the Treatment Council states that

it is a nonprofit corporation with no parent or affiliate companies.

** Petro-Chem Processing, Inc. has informed counsel for peti-

tioner that it will not participate in proceedings before this Court.

A letter stating the same has been filed with the Clerk and served

on all parties to the proceeding below in compliance with this Court’s

Rule 19.6. Therefore, the Treatment Council is the sole petitioner.

ee

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

The Hazardous Waste Treatment Council

The Resource Conservation and Recovery

1976

No. 86-1143

Nos. 87-1487, 87-1548, and 88-1177

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CREATES A SIG-

NIFICANT BARRIER TO REVIEW OF

AGENCY ACTION, DIRECTLY CONTRARY

TO THE STANDARDS SET FORTH BY THIS

COURT IN CLARKE

A. The Court of Appeals Has Transformed the

Rule that there Need Be No Evidence of In-

tent to Benefit, and Petitioner Must Show

Only An Interest Having A Plausible Rela-

tionship to Statutory Policies, Into a Require-

ment that there be “Explicit Evidence of

Congressional Intent to Benefit” or a Show-

ing that Petitioner Is an “Unusually Suitable

Champion”

B. The Marketplace Injury that the Court of

Appeals Found to be a Questionable Basis

for Review of an Agency’s Failure to Imple-

ment the Law Provides a Sound Basis Upon

Which to Premise Review of Unlawful

Agency Action

rABLE OF AUTHORITIES—Continued

Page

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. § 1276a 13

28 U.S.C. § 1254 2

tegulations:

50 Fed. Reg. 49,164 (1985) (codified at 40 C.F.R.

Part 266 (1988) ) 1, 6

52 Fed. Reg. 34,779 (1987) (to be codified at 40

C.F.R. Part 270) l

52 Fed. Reg. 43,906 (1987) 17

52 Fed. Reg. 46,946 (1987) (to be codified at 40

C.F.R. Part 264) 2

40 C.F.R. Parts 260-70 (1988) 5

Legislative History:

H.R. Rep. No. 198, 98th Cong., Ist Sess. 82 (1983) 6, 15

S. Rep. No. 284, 98th Cong., Ist Sess. 19 (1983) ..5, 6, 15

H.R. Rep. No, 1133, 98th Cong., 29d Sess. 80 (1984),

reprinted in 1984 U.S. Code Cong. & Admin.

News 5649, 5651 5, lo

Resource Conservation and Recovery Act Reauthor-

‘sation: Hearings Before the Subcomm. on Com-

merce, Transportation, and Tourism of the

House Energy and Commerce Comm., 97th

Cong., 2d Sess. 505-530 (1982) 1

Solid Waste Disposal Act Amendment of 1988:

Hearings Before the Subcomm, on Environ-

mental Pollution of the Senate Environmental

and Public Works Comm., 98th Cong., 2d Sess.

187 (1983) 1

129 Cong. Rec. H6505 (daily ed. Aug. 4, 1983) 15

129 Cong. Rec. H8159 (daily ed. Oct. 6, 1983) 16

129 Cong. Rec. H8896-97 (daily ed. Oct. 31, 1983) 16

130 Cong. Rec. $9147-48 (daily ed. July 15, 1984) 15

130 Cong. Rec. $13818 (daily ed. Oct. 5, 1984) 6, 16

In T

i

Suprenwe Court of the United States

{ )i | VJ Us»

PETITION FOR A WRIT OF CERTIORARI TO THI

UNITED STATES COUR! OF APPEALS

FOR TH!

DISTRICT Ol COLUMBIA CIRCUTI

2

JURISDICTION

Pursuant to Rule 19.4 of the Rules of this Court, this

petition prays for issuance of the writ with respect to

two related judgments of a single court, the United States

Court of Appeals for the District of Columbia Circuit.

The opinion and judgment in No. 86-1143 below was en-

tered on October 7, 1988 and a timely petition for rehear-

ing denied on December 20, 1988. App. 28a. The opinion

and judgment in Nos, 87-1487, 87-1548, and 88-1177 be-

low was entered on January 13, 1989. This petition is

filed within 90 days of the denial of rehearing in the

earlier case. The jurisdiction of this Court rests on 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 10 of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 702, provides that

[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.

Section 7006(a) (1) of the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. § 6976(a) (1), pro-

vides that

[alny judicial review of final regulations promul-

gated pursuant to this chapter and the Administra-

tor’s denial of any petition for the promulgation,

amendment, or repeal of any regulation under this

chapter shall be in accordance with sections 701

through 706 of title5....

STATEMENT OF THE CASE

In these cases, the court below established a new test

of “prudential standing” to limit the ability of business

firms suffering commercial injury to press for stricter

review of portions of a final rule published at 52 Fed. Reg. 46,946

(1987) (to be codified at 40 C.F.R. Part 264).

3

enforcement of environmental laws. By denying a right

of judicial review to firms with an immediate financial

interest in developing the technology and treatment ca-

pacity that Congress recognized as a necessary step

toward meeting its environmental objectives, the deci-

sion below creates a substantial obstacle to the imple-

mentation of environmental laws. Because of the ‘m-

portance of this case to the enforcement of those laws in

particular, and the significance of the question whether

the lower courts are free to create new barriers to limit

review of administrative failures to implement statutory

directives where review is sought by firms whose com-

mercial interests are intertwined with Congress’ statu-

tory goals, the Treatment Council has petitioned for

certiorari.

The Hazardous Waste Treatment Council

The Hazardous Waste Treatment Council is the largest

association of hazardous waste treatment firms and man-

ufacturers of treatment technology in the country. The

Treatment Council represents over sixty companies with

operations in forty-eight states. As recounted by the

Court of Appeals, the Treatment Council’s member com-

panies

provide treatment or disposal services employing

both established and emerging technologies and

methods for treatment and management: incinera-

tion and other thermal destruction, reclamation,

biological and chemical treatment, land disposal

after pre-treatment, and hazardous site cleanups.

App. 5a-6a. The Council’s Articles of Incorporation de-

clare that among its purposes is

[tlo promote the protection of the environment

through the adoption of environmentally sound pro-

cedures and methods of destreying and treating haz-

ardous wastes and the proper managemert of resi-

dues of those treatment and destruction processes.

App. 6a.

4

The Treatment Council represents firms whose eco-

nomic interests and future viability depend largely on

the presence, not the absence, of appropriate regulations

for protection of the environment—regulations which

create the demand for their advanced waste treatment

technology and services. Accordingly, the Treatment

Council has a strong incentive to participate in the legis-

lative process in support of pro-environment positions, to

participate in EPA rulemaking, and, where necessary,

to vindicate Congress’ will through litigation if EPA

fails properly to implement and enforce the requirements

of RCRA.?

The Resource Conservation and Recovery Act of 1976

In the Resource Conservation and Recovery Act, Con-

gress sought to provide a comprehensive regulatory pro-

gram for the management and safe disposal of hazardous

waste. In particular, the 1984 amendments to RCRA set

forth restrictions on the management of hazardous waste,

including detailed requirements for hazardous waste gen-

erators, transporters and owners and operators of treat-

2 For example, during the 1984 reauthorization to RCRA, the

Treatment Council successfully adyocated amendments to close a

loophole in RCRA that allowed the burning of hazardous waste in

industrial boilers and furnaces where energy recovery was involved

—including specifically RCRA Section 3004(q)(2)(c), 42 U.S.C.

§ 6924(q)(2)(C), at issue in Nos. 87-1487 and 87-1548, which re-

quires among other things that big city cement kilns may not burn

fuel which contains hazardous waste unless such kilns fully comply

with EPA’s regulations for incinerators. See, e.g., Solid Waste

Disposal Act Amendments of 1983: Hearings on S. 757 Before the

Subcomm. on Environmental Pollution of the Senaie Environment

und Public Works Comm., 98th Cong., 2d Sess. 187, 195 (1983);

Resource Conservation and Recovery Act Reauthorization: Hear-

ings Before the Subcomm. on Commerce, Transportation, and Teur-

ism of the House Energy and Commerce Comm., 97th Cong., 2d

Sess. 505-530 (1982). In addition, the Treatment Council success-

fully testified in support of amendments creating land disposal

restriction, of which the salt dome prohibitions (at issue in No.

88-1177) were a part. See Senate Hearings, supra, at 189-95.

5

ment, storage and disposal facilities. See, ¢.g., 42 U.S.C.

§§ 6921-24: 40 C.F.R. Parts 260-270. With the 1984

amendments to RCRA, Congress tried to promote envi-

ronmentally sound waste management practices “by en-

couraging process substitution, materials recovery, prop-

erly conducted recycling and reuse, and treatment.” 42

U.S.C. § 6902 (a) (6).

The Conference Committee reports on the 1984 amend-

ments, for example, made clear that as a means of

achieving its ultimate goal of protecting the environment,

Congress consciously sought to promote the use of the

services and technology that Treatment Council members

provide and to create industrial treatment capacity ade-

quate to handle the Nation’s hazardous wastes. Thus,

the legislative history shows that “the Conferees intend

_. . that advanced treatment, recycling, incineration and

other hazardous waste control technologies should replace

land disposal”—such as salt domes, underground mines,

and caves. H.R. Rep. No. 1133, 98th Cong., 2nd Sess. 80

(1984), reprinted in 1984 U.S. Code Cong. & Admin.

News 564%, 5651. Specifically, to promote investment in

and expansion of capacity of the industry represented

by the Treatment Council, Congress expected EPA not to

create a climate where “the regulated community believes

that . . . deadlines will normally be extended and that

immediate investment in development of alternate capac-

ity will be premature and economically non-productive.”

S. Rep. No. 284, 98th Cong., Ist Sess. 19 (1983). The

Senate Environment and Public Works Committee

stressed that “[gliven consistent regulatory and economic

incentives, adequate [treatment] capacity will be quickly

developed,” and that “[wlith the elimination of cheap,

unsafe . . . alternatives, treatment capacity and inex-

pensive ‘milk-run’ style collection services will develop to

meet regional demands.” Jd. (emphasis added).

Thus, one of Congress’ goals in enacting and amend-

ing RCRA was the rapid development of a hazardous

6

waste treatment industry with sufficient capacity to

meet both present and future needs. Congress appre-

ciated that in order to create a “new market and in-

creased demand for new, safer treatment and disposal

technologies,” market incentives for the development of

such technologies and industrial capacity would have to

be strengthened.* Congress sought to encourage the de-

velopment of that technology and capacity by ensuring a

market for those services through strict and comprehen-

sive regulation requiring proper treatment of hazardous

waste.*

No. 86-1143

No. 86-1143 below was a petition for review of EPA

rules for the burning of hazardous wastes, including used

oil, as fuel. See 50 Fed. Reg. 49,164 (1985) (codified at

40 CFR pts. 261, 264-66, 271). The Court of Appeals

summarized that the “gist of [the Treatment Council’s]

complaint here is that EPA’s regulations are not compre-

hensive and strict enough to comply fully with the con-

trolling statute, RCRA.” App. 5a.

3130 Cong. Rec. 813818 (Oct. 5, 1984) (Statement of Sen.

Chafee). As Senator Chafee explained:

The problem presented by land disposal of hazardous wastes

is a classic example of the inability of the free marketplace to

provide for the public good .... We have the technology to

reduce the quantity of hazardous waste disposed of on the

land and to render the waste less harmful. What we do not

have, and will not have as long as cheap land disposal options

are available, is a viable market to support the development

and expansion of new, safer treatment and disposal tech-

nologies.

Id.

4See also S. Rep. No. 284, 98th Cong., Ist Sess. 6 (1983) (capac-

ity for “alternative technologies” can “be developed if a viable

market can be assured”); H.R. Rep. No. 198, 98th Cong., Ist Sess.

32 (1983) (“prudent public policy” would “encourage the develop-

ment of alternative treatment technology and capacity”).

a —— i

7

EPA did not initially challenge the Treatment Coun-

cil’s standing to raise these issues. Nonetheless, the

Court of Appeals was struck by what it saw as “the ap-

parent anomaly of regulated entities demanding stricter

regulation,” and sua sponte ordered the parties to brief

the issue. App. 5a. What followed was an exchange of

briefs and affidavits, including several affidavits submit-

ted by the Council and its members describing the pur-

pose of the organization and its members’ interest in the

implementation and enforcement of RCRA.

In approaching the standing issue, the Court of Ap-

peals did not, and could not, dispute that “the asserted

laxity of the regulations will diminish the market for

[the Treatment Council’s] high-tech control services,”

thereby causing economic injury.’ App. 6a. Neither did

‘t doubt that while the forms of hazardous waste disposal

which Treatment Council members employ are heavily

regulated under RCRA, the EPA regulations in question

exempted other forms of disposal from the same sorts of

regulations, affecting the ability of Treatment Council

members to compete with those methods. The Court of

Appeals panel referred to these types of claims as “com-

petitor claims.” ° App. 6a.

5 The fact that petitioner has suffered Article III “injury-in-fact”

was not questioned by the Court of Appeals. The question presented

is whether an entity suffering such injury-in-fact is to be barred

from review under a “prudential” rule like the one the Court of

Appeals created.

6 The Court of Appeals noted that at least one Treatment Council

member receives non-hazardous used oil from heavy manufacturing

industries for processing and resale as boiler fuel. Because these

firms would have to spend more to process adulterated or contami-

nated oils, “more stringent EPA regulation would tend to protect

it from this sort of injury.” The Court of Appeals termed these

“eonsumer claims” and held that this direct handling of an item

subject to regulation conferred standing on the organization to

present certain claims. App. 7a.

8

Addressing these “competitor claims,” the Court of

Appeals panel found “that tightening of environmental

standards will generally foster not only a cleaner envi-

ronment but also the member companies’ profits, as it

will expand the market for their services.” App. 9a. But

deeming this an “incidental benefit,” the Court of Ap-

peals held that this Court’s decision in Clarke v. Securi-

tics Industry Ass’n, 479 U.S. 388 (1987), left the “sta-

tus” of this type of commercial injury “somewhat un-

clear.” App. 10a.

Citing the “zone of interests’ test, the Court of Ap-

peals acknowledged this Court’s statement that the “test

is not meant to be especially demanding” and that “in

particular, there need be no indication of congressional

purpose to benefit the would-be plaintiff.” App. 10a,

quoting Clarke, 479 U.S. at 399-400. But noting that the

test “denies a right of review if the plaintiff’s interests

are so marginally related to or inconsistent with the pur-

poses implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit,”

(App. 10a, quoting Clarke, 479 U.S. at 399), the Court

of Appeals found the need to create a new test for “pru-

dential standing.” Under this test, a plaintiff like the

Treatment Council must show either a plainly expressed

congressional intent to benefit him or that he would be

an “unusually suitable champion” of Congress’ goals.

App. 10a-1la.

Here, the panel found it decisive that there was no

specific showing of intent “to benefit recycling and dis-

posal firms.” App. lla. The fact that these firms pro-

vide the technology indispensable to achieving Congress’

goal, and their business existence depends upon the effec-

tiveness of the agency’s regulatory activity, did not con-

fer “prudential standing” because: “in the absence of

either some explicit evidence of an intent to benefit such

firms, or some reason to believe that such firms would be

unusually suitable champions of Congress’s ultimate

|

9

goals, no one would suppose them to have standing to at-

tack regulatory laxity.” App. lla (emphasis added).

The Court of Appeals found itself unable “to picture

sych firms as suitable challengers of the agency,” (App.

12a), where the claim was that the agency was not im-

plementing the law with sufficient diligence.’

Nos. 87-1487, 87-1548, and 88-1177

These three cases were addressed in a single decision

and judgment by the Court of Appeals. In Nos. 87-1487

and 87-1548, the Treatment Council and an individual

company, Petro-Chem Processing, Inc. (not a member of

the Treatment Council), sought review of an EPA regu-

latory extension which enlarged by more than three

years the deadline for “big city” cement kilns to apply

for “interim status,” which would allow such kilns to

burn liquid hazardous waste without a permit. This ex-

tension adversely affected Treatment Council members

because it allowed competitor facilities to burn hazardous

waste derived fuels under standards which are substan-

tially more lenient than the standards which apply to

7The court below noted that “many cases allow[] standing to

firms whose sole concern is exposure to unwanted competition” and

cited several cases of this Court, including Clarke itself. App. 12a.

The court below also noted the cases of this Court which did not

require any showing of express intent by Congress to confer com-

petitive benefits on the plaintiff, although standing was allowed.

To explain those cases, the Court of Appeals reasoned that this

Court must have assumed, “without evidence, that entry-restricting

legislation is intended to shelter competitors” but that legislators

are reluctant to articulate that goal; therefore, in those cases, this

Court’s unarticulated assumptions about the unspoken legislative

goal sufficed to confer standing. App. 13a. The Court of Appeals

declined to apply that reasoning here, however, finding that to

allow the pecuniary beneficiaries of a regulatory program to seek

stricter enforcement of the regulatory program “would eliminate

the prudential standing requirement.” App. 14a. The Court of

Appeals, therefore, dismissed the Treatment Council’s “competitor

claims.”

10

fully permitted facilities, making that method of dis-

y } g

posing of wastes competitively more advantageous.

In No. 88-1177, the Treatment Council sought review

of EPA regulations which authorized the disposal of haz-

ardous waste in salt domes, salt bed formations, under-

ground mines and caves. Specifically, the Treatment

Council contended that these regulations were directly

contrary to RCRA’s flat prohibition on the “placement”

of hazardous wastes in these geologic formations without

a permit. See 42 U.S.C. § 6924(b) (2). Treatment Coun-

cil members were adversely affected by this rule because

the use of unprotective land disposal methods (such as

salt domes) avoided the need for Treatment Council

members’ services and frustrated the investment of

Treatment Council members in their high technology

solutions to the hazardous waste disposal problem—solu-

tions that Congress had expressly sought to encourage by

barring land disposal. See pp. 4-6 supra.

Considering itself bound by the decision of the panel

in No. 86-1143, the panel in these cases held that “the

prudential requirements for standing under RCRA” were

not met by the commercial injury that Treatment Coun-

cil members would suffer on account of the agency’s fail-

ure to implement the statutory directive. Review was

barred “fi]n the absence of any suggestion either of con-

gressional intent to improve the competitive position of

high tech recyclers, or of any reason to picture such

firms as suitable challengers of the agency.” App. 34a.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CREATES A SIGNIFI-

CANT BARRIER TO REVIEW OF AGENCY AC-

TION, DIRECTLY CONTRARY TO THE STAND-

ARDS SET FORTH BY THIS COURT IN CLARKE.

In Clarke v. Securities Industry Association, 479 U.S.

388, 399 (1987), this Court held that the APA sets forth

a “presumption in favor of judicial review of agency

a |

11

action.” In light “of Congress’ evident intent to make

agency action presumptively reviewable,” when a par-

ticular plaintiff (suffering injury-in-fact) seeks to chal-

lenge an agency’s implementation of a statute, there

“need be no indication of congressional purpose to bene fit

the would-be plaintiff.” Id. at 399-400 (emphasis added).

Expressly disapproving a prior line of cases from the

District of Columbia Circuit setting forth substantial

“prudential barriers” to review of administrative ac-

tion.* this Court held that the APA’s “generous review

provisions” should be construed “not grudgingly but as

serving a broadly remedial purpose. - . ” Id. at 395

(citations omitted). More particularly, the Court held

that so long as Congress has not manifested an intention

to preclude review, the APA’s standing requirements are

satisfied if the plaintiff’s interests bear a “plausible re-

lationship to the policies underlying” the relevant stat-

ute.® Id. at 403.

8 Specifically, the Court in Clarke expressly rejected the “intent

to benefit” requirement which had been applied by the D.C. Circuit

in Control Data Corp. v. Baldrige, 655 F.2d 283 (D.C. Cir.), cert.

denied, 454 U.S. 881 (1981), and which that court has resurrected

in these cases. See Clarke, 479 U.S. at 400 n.15.

9 Absent a direct indication of congressional intent to bar suit,

the presumption of review may only be rebutted in the following

circumstances :

In cases where the plaintiff is not itself the subject of the

contested regulatory action, the test denies a right of review

if the plaintiff’s interests are so marginally related to or in-

consistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to per-

mit the suit. The test is not meant to be especially demanding ;

in particular there need be no indication of congressional pur-

pose to benefit the would-be plaintiff.

Clarke, 479 U.S. at 399-400. The “so marginally related to or in-

consistent with the purposes implicit in the statute” standard is

encapsulated in the phrase “plausible relationship to the policies

underlying” the relevant statute.

a

12

A. The Court of Appeals Has Transformed the Rule

that there Need Be No Evidence of Intent to Bene-

fit, and Petitioner Must Show Only An Interest

Having A Plausible Relationship to Statutory Polli-

cies, Into a Requirement that there be “Explicit

Evidence of Congressional Intent to Benefit” or a

Showing that Petitioner Is an “Unusually Suitable

Champion.”

The opinions of the court below turn both the language

and the premises of Clarke on their head, restoring the

barriers to review of agency action that this Court ex-

pressly disapproved. Finding Clarke “somewhat unclear,”

the court below declared that a firm or group of firms

seeking review of an agency failure to implement the law

must shoulder the burden of demonstrating “some explicit

evidence of [congressional] intent to benefit” them com-

petitively, or that there is “some reason to believe that

such firms would be unusually suitable champions of

Congress’s ultimate goals.” App. lla (emphasis added).

This is precisely what this Court rejected in Clarke.

Instead of presuming that a business that will concededly

suffer financial injury from unlawful agency action has

standing to challenge that action unless his interests bear

no plausible relationship to the purposes of the statute,

as Clarke expressly held (479 U.S. at 403), the Court of

Appeals has transformed those standards for businesses

suffering market injury as a consequence of agency fail-

ures to enforce the law. The rule that there need be no

express intent to benefit but that the petitioner’s inter-

ests must bear a plausible relationship to the statutory

policies, has become a requirement for a showing of some

express intent to benefit the petitioner, or reason to be-

lieve that petitioner is an “unusually suitable champion.”

In contrast, other courts of appeals have had little

difficulty applying Clarke directly to the same kinds of

2

13

claims as were at issue here.’° They have found no need

for new “tests” to supplant the “plausible relationship”

standard set forth in Clarke itself. Without the creation

of such a new, review-limiting “test,” other courts have

reached results directly contrary to those reached by the

court below in this case. E.g., DeLoss v. Department of

Housing & Urban Development, 822 F.2d 1460 (8th Cir.

1987) : Foremost Sales Promotions, Inc. v. Director, Bureau

of Alcohol. Tobacco & Firearms, 860 F.2d 229 (7th Cir.

1988) : City of Milwaukee v. Block, 823 F.2d 1158 (7th

Cir. 1987). The effect of reversing the presumption and

revising the standard as the court below did here is de-

terminative—particularly where full enforcement of the

environmental laws, or other health and safety statutes,

‘< at issue. Congress’ primary articulated goal under

such laws is invariably to protect the health and safety

of many citizens. Switching the presumption requires

the court to disregard the fact that as a means of

achieving that ultimate goal it may be necessary to pro-

mote the development of certain industries along the

way. As shown below, that is precisely the case here.

Apart from the mischief done to this Court’s decision

in Clarke. and to Congress’ intent to assure agency com-

pliance with its statutory mandate through private re-

view actions, the “unusually suitable champion” test

embarks the courts upon a highly subjective inquiry.

That inquiry is not guided (as Clarke requires, 479

U.S. at 401) by analysis of the overall statutory context:

10 The decision of the United States Court of Appeals for the

District of Columbia Circuit has decisive importance for the effec-

tive implementation of the environmental laws because that court

has exclusive jurisdiction over the administrative implementation

of many federal environmental statutes, including RCRA. See, @.9.,

RCRA § 7006(a)(1), 42 U.S.C. § 6976(a)(1); Clean Air Act, 42

$7

U.S.C. § 7607(b) (1); Safe Drinking Water Act, 42 U.S.C. § 300)-

7(a)(1); Comprehensive Environmental Response, Compensation

and Liability Act (“Superfund”), 42 U.S.C. § 9613(a); Surface

Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1276(a).

14

In these cases, for example, the Treatment Council pro-

vides the technology, equipment and treatment capacity

that Congress sought to develop and encourage with

RCRA." The Treatment Council and its members are in

the very business of accomplishing what Congress sought

to accomplish in that statute. The special expertise of

the Treatment Council, born of the market, is precisely

the kind of expertise Congress would expect an agency

to rely upon in promulgating regulations.’? Nonetheless,

under its test, the Court of Appeals’ concluded, ipse

dixit, that there was “no reason to picture such firms

as suitable challengers” of the agency’s failure to imple-

ment regulations that would allow Congress’ environ-

mental goals to be achieved.

Because the court below was focusing upon the pres-

ence or absence of “some explicit evidence of an intent to

benefit” these firms (App. lla), rather than a “plausible

relationship” between their interests and the statute’s

objectives, it never considered the statute’s “overall con-

text,” as Clarke expressly requires. Had the court ap-

plied the standards of Clarke, it would have been clear

11 See 42 U.S.C. § 6902(a)(6) (RCRA’s goals include “encourag-

ing process substitution, materials, recovery, properly conducted

recycling, reuse and treatment”).

12 The kinds of pecuniary interests that the Court of Appeals

here demeaned are precisely the kinds of interests that the Framers

understood would inspire participation in the legislative process.

Through substantive administrative rulemaking, Congress has

shifted the arena in which these arguments are sifted, from the

legislature itself to administrative agencies—with a right of ju-

dicial review. But in changing the forum in which these matters

are resolved, there is no indication that Congress sought to restrict

the people who might be allowed to participate in, and influence

with their arguments, the process of making “quasi-legislative”

rules. On the contrary, there is every reason to believe that Con-

gress expected the right of participation in the rulemaking process

to be as broad as it would be in the legislative process. Judicial

review is necessary to ensure that the participation of a party in

the administrative process is taken seriously. See Part II infra.

.

16

Not surprisingly, Congress was aware that the market

could be mobilized to achieve RCRA’s aims and sought to

employ the market to develop the technology and treat-

ment capacity to ensure a safer environment. Business

was not outside the process, but part of it. Congress

knew that it could not rely on then-existing market

incentives to create a “new market and increased demand

for new, safer treatment and disposal technologies” if

RCRA’s objectives were to be achieved.’ Recognizing

that “[ijndividual entrepreneurs and small businesses

are frequently the source of new technologies and new

ideas that can become tomorrow’s innovative approaches

to hazardous waste treatment,” '* Congress intended the

1984 RCRA amendments to stimulate investment in these

new technologies by providing assurance that strict regu-

lations would ensure that the new technology would be

used.”

17130 Cong. Rec. S13818 (daily ed. Oct. 5, 1984). See note 3

supra.

18129 Cong. Rec. H8159 (daily ed. Oct. 6, 1983) (Statement of

tep. Skelton).

19 Congress specifically regarded the type of advanced treatment

technology offered by Treatment Council member companies as a

model for what it envisioned for the industry:

Aiternatives to land disposal exist. I know, because in York,

Ps, in my district, Envirite Corp. [a Treatment Council mem-

ber] operates a state-of-the-art facility that treats hazardous

metal finishing wastes and certain other wastes that are princi-

pally contaminated by inorganic constituents. Envirite's treat-

ment technologies and management methods convert toxic and

hazardous wastes to nonhazardous wastes prior to their ultimate

disposal. This kind of treatment process should serve as a

model to EPA in implementing the land disposal restrictions

of H.R. 2867.

129 Cong. Rec. H8896-97 (daily ed. Oct. 31, 1983) (Statement of

Rep. Goodling) (emphasis added).

|

; i | ] | ? rye J Ti¢ ] ‘ \\ | Tl

. ‘ }?? ‘ ) ‘ ++ y ‘

. ’ re ‘ rit l! it ri ny ~, cA . ‘ { } |

’ > ’

ar , : ‘ |

gress’ clear purposes n enacting RCRA ‘

I

‘ .

ry' O11S } T | 1] mare NL’ DOS VW ) TOSI )

‘ va ] A i ) « A ALLica } ai } ‘ y » I

; ] , y) ++ > 1 ae YY nao ry » + 4 he ] - neo Y)

aeveiopmen i VV SU ilix at cil wa | rVUiIUe y ali P i

nowetr } “ | — ; T +. + ) ‘ +} N

i is al IAS W 1 Sul cle! cadvacClry\ ) mee ‘ |

. ; - ¢ . ’ .

. » 4 . ‘ f

n’s needs. The means or spurring e development Ol

> > J > } }

? y , 7% , , y 7 |

it capaclLy Was f ssurance Oi rit ind evennanaed

+ . I< ‘ ‘ ’ ‘

enforcemen precisely wha e Treatment Council was

4 ‘ ‘ 4 + 1 +> . ?

ing ) nsis 1po! in ese review actions B

x ; +} hr ] » 4 213° ] r

Vi { ng Lit puraen o require an ¢ fit Snowilne i

‘ on | ‘ 1] tabi ’

nre Oo He t r al unuSually lita e cnamplo!l

. ‘ » +) Y . . sty . sh) yvolati lis ‘ +} "11?

n mer , DiaUuSIDit eiavlonsnlp ne |}

rf 4 ‘ ’ , .

PS { f ~ 1Lé iS ( 1? é requ re Cou! rye

4 ’ ’ ’ 14 4 ; }

+7 , .

\ iot l O! n ( onvress Ul in LUA + ALS { ‘ eX i

> , > ‘ >

’ T { t t A ry ] , ‘ ’ | ’

lS, I - rit il 0 ApDpDedIis rey A ]

" . : . 4

‘ ‘ f ‘ ‘

1S . K TO} Lhe I ina )

RB. The Marketplace Injury that the Court of Appeals

Found to be a Questionable Basis for Review of an

Agency’s Failure to Implement the Law Provides

a Sound Basis Upon Which to Premise Review of

Unlawful Agency Action.

: , ; , ; ‘ . ,

, ? ’ cy . sy * ‘7 ’ +?) , + . An tt

NWISnNINY | new rule, the Uoul I ppeals

y sna BB a i r\Y y* 7 , ’ ] ’ ’ Yr)

il 1CTiCeU | Lp t LPlULI ( tl

’ ’ y y y*} ’ ry" 1,5 ’ y ' ’

} j \ ~ ‘ pred iLt iti \y (

‘ * ‘ rm}

| ‘ ;

nro-environme! positions. 1! re ion ré

‘ ‘ ‘ +.1

{ ) ;

tr { yt Ay ’ , +} ‘ ; +} s) ( 114

, ‘ > |

i sé es T xT EPA ha ( T a e( |

hotween the Treatment ¢ roa ind t (

» DA a) > » ‘ ‘ ag | > ‘ ‘

CRA See 52 Fed. Reg. 43,906 (198% The pu f the

T'y ty nt r na the } et p f RCRA , ; ry? .

. :

} +} na ronment nrot t } ' , > @ j |

‘ sriuu * sat ‘ } ‘ " (

1

I na ra i t el I ng Ul I cling reuse and

18

a fundamental misperception of the significance with

which the law regards marketplace injury for purposes

of determining “prudential” standing.

The Treatment Council’s basis for seeking judicial

review to ensure that its views are taken seriously in the

administrative process follows conventional lines. With

respect to certain of the regulations cited as too lax, “the

market for the services of these members of the Council

will be smaller than it would have been if the EPA had

adopted the Council’s views.” App. 6a. With respect to

others, “the EPA ruling tends to enable . . . competitors

to undersell’ Treatment Council members because they

are allowed by EPA to avoid the stringent treatment

that Congress intended. App. 7a. A law requiring

stringent waste management induces firms to invest in

new facilities and develop new technologies—a classic

economic interest that is frustrated when the agency

fails to implement the law through regulations consistent

with Congress’ intent.

1. As the Court of Appeals itself recognized, standing

based on injuries of this type mirrors a long line of

eases “allowing standing to firms whose sole concern is

exposure to unwanted competition.” App. 12a, citing

Clarke, 479 U.S. at 403; Investment Co. Inst. v. Camp,

401 U.S. 617 (1971); Association of Data Processing

Serv. Org., Inc. v. Camp, 397 U.S. 150 (1970). See also

Sierra Club v. Morton, 405 U.S. 727, 733 (1972). Fol-

lowing Clarke, appellate decisions from other circuit

courts have uniformly held that such competitive injury

is sufficient so long as there is a plausible relationship

between those interests and some statutory objective,

whether incidental or intermediate. See DeLoss v. Dept.

of Housing & Urban Development, 822 F.2d 1460, 1463-

66 (8th Cir. 1987); Furemost Sales Promotions, Inc.

Director, Bureau of Alcohol, Tobacco & Firearms, 860

F.2d 229, 233-34 (7th Cir. 1988).

19

The Court of Appeals acknowledged that the decisions

of this Court in which persons competitively injured are

allowed to advance statutory interests that coincide with

their interests “have not rested on any showing of ex-

plicit intent to shelter plaintiffs or their like from the

hazards of competition.” App. 13a.7* Put simply, under

the Court of Appeals’ test, the cases of this Court were

wrongly decided. That court was thus left to explain

decisions by this Court that were rendered anomalous

under the standard it was announcing. The Court of

Appeals, therefore, hypothesized that the reason this

Court has not required evidence of an express congres-

sional purpose to protect petitioner companies from com-

petition was because this Court must have believed that

Congress would have been “reluctant to articulate” such

a protectionist goal, even if it was really an important

‘nfluence on Congress’ decision to enact the legislation.

App. 13a. In the Court of Appeals’ view, this Court

found standing in these cases on the basis of a presumed

hut unmentionable) congressional intention to benefit

private commercial interests. /d.

In fact. this Court has never dealt with the issue of

omnetitor standing in the terms that the Court of Ap-

ref peeaae ee a OO : ; j Be cans ee P

netitor standing, including standing based upon loss of a

y

] + + + le 4 +

For example, the Appeals d tha xposu! n-

" +

f ; 4 Y a ‘ }

Ins € ( } 40] U.S. 61% 197] NI I d

+ . | x

nail i" rn Giass-steaga At 4 hing I egis

, : 1} ’

+ . + + ] + + ;

ry ] G1lass-S yal ( rester na I nae

]

~ T) { ’ 7 T t r « . Sial t pl

t P I

etment < ar es from com] from banks On the «

Ips I LK

, 4

y is nis ¢ y r gey } da Cl y } I ) g f tha At

a toh revel +} tT earl aq + | id 1( }

sner lat ] d hv b ] S f ? stme! rposes

» P Y ,

\ 13a, quoting Clark Nonetheless, this ¢ rt had 1

1 ° . ‘ . : :

jing that investment companies, fearing Dank COI petition, nad

bandinaw 4 anata thet +) vrecilatorv nrogran hould hav | ,

Standaln Oo argue Ullal ne reguiatory program sould flav’ peen

, P ’

*, ila str a) |

strictiy enrorcead.

a i

20

market, rests on a simple premise. Congress is fully

aware of the workings of the market and the role that

market incentives may play in accomplishing its legis-

lative objectives. Those “whose [market] interests are

directly affected by a broad or narrow interpretation of

the Act are easily identifiable.” Clarke, 479 U.S. at 399

n.14, quoting Data Processing, 397 U.S. at 157. Con-

gress is generally not blind to those interests.

From Congress’ perspective, firms with a direct com-

mercial interest in the implementation of laws imposing

statutory requirements upon competitors ought to have

standing to participate in the administrative process, and

to obtain review to ensure that Congress’ statutory in-

tentions are vindicated, for the same reason that they

make good participants in—the legislative process. The

financial interests of those firms create a strong reason

for them to advocate forcefully positions of law and fact

that might have an influence on the decisionmakers.”

The fact that there is a pecuniary interest underlying

such arguments may cause them to be discounted—but

financial interest alone has never been thought to pre-

clude a party from asserting a position. Therefore, while

market beneficiaries of a statute may not have been

intended as the primary beneficiaries of regulatory pro-

grams, so long as their financial interest is an expectable

and direct consequence of the statute Congress enacts,

one can reasonably assume (and ought to assume under

Clarke) that Congress was aware of that impact. Where,

as here, the legislative history shows that the commercial

interest being asserted was a necessary step toward

achieving Congress’ ultimate objective (by causing the

development of new technology and capacity), there is no

basis to apply a test reflecting hostility to that market-

place injury.

22 To be sure, those arguments will rarely be phrased in the anti-

competitive form: “restrict other firms in order to benefit my

narrow competitive interest,” but rather in the form “this is

good for the Nation and we stand ready to fill the need.”

21

2. The Court of Appeals also had to overcome a

second line of cases of this Court involving another form

of marketplace injury. See App. 15a. Those cases find

“prudential standing for those who sell to regulated

parties and complain that a regulatory restriction will

curtail its oppportunities to sell to those parties.” /d.

(emphasis in original). See United States v. Storer

Broadcasting Co., 351 U.S. 192, 199-200 (1956) ; Colum-

bia Broadcasting Sys., Inc. v. United States, 316 U.S.

407, 422-23 (1942); Joint Anti-Fascist Refugee Comm.

v. McGrath, 341 U.S. 123 (1951). Im this case, the

regulatory actions of the agency seriously curtailed the

opportunity of the Treatment Council’s members to mar-

ket their waste treatment services and products.

The Court of Appeals explained these cases in terms of

the “non-statutory rights of such parties to deal freely

with the regulated firms,” embracing the “ ‘freedom to

interact with a third person.’” App. 15a (citations

omitted). The Court of Appeals found that the Treat-

ment Council

plainly lacks any such non-statutory interests. A

firm has no common law interest ... in having the

government drive business its way or in having gov-

ernment force competitors’ services to be of the same

quality (and cost!) as its own.

App. 16a. It is not at all clear, however, why there

is any greater common law interest in a “freedom to

interact with a third person,” than there is in the loss

of one’s investment, made in reliance on a statute de-

signed to encourage that investment, but which an admin-

istrative agency arbitrarily and capriciously fails to

implement.

In any case, this Court has never referred to “freedom

to interact with a third person” in finding standing. The

approach of this Court has been both mere practical and

more sensible. Where a party’s injury is suffered through

oor

ee ee re

22

dealings with a third-party that is subject to regulation,

the expectedness of that result, because it is direct and

immediate, may leave little doubt that that party was

arguably within the “zone of interests” affected by the

statute. In this case, of course, the interest that is often

implicit was explicit, for Congress was well aware of

market forces and the need to encourage investment in

the industry represented by the Treatment Council in

order to achieve Congress’ ultimate goal of protecting

the environment. Congress may properly rely upon such

firms to “challenge agency disregard of the law.” See

Block v. Community Nutrition Inst., 467 U.S. 340, 351

(1984).

II. THIS CASE RAISES IMPORTANT ISSUES ABOUT

THE USE OF PRUDENTIAL RULES TO BAR RE-

VIEW OF ADMINISTRATIVE FAILURES TO IM-

PLEMENT STATUTORY DIRECTIVES.

The fundamental premise of this Court’s decision in

Clarke was that whatever concerns might prompt a re-

strictive view of standing in other contexts, the generous

remedial provisions of the APA leave little room for the

Judicial Branch to create obstructions to review of agency

action. See Clarke, 497 U.S. at 394-95, 400 n.16. Con-

gress’ broad intentions are a reflection of the special

purpose that APA review fulfills as a means of assur-

ing the Executive Branch’s adherence to Congress’ in-

structions.**

A. For 150 years, laws were made almost exclusively

through the legislative process, the process contemplated

by the Constitution and well-understood by the Framers.

23 Thus, while one might be reluctant to hold, in statutory rights

cases, that Congress intended to confer the right to bring lawsuits

on persons beyond those whom Congress primarily sought to bene-

fit by enactment of a statute, a different presumption applies where

review of agency action is at stake. See Clarke, 479 U.S. at 400

n.16.

a

23

In that open process, the views of an organization like

the Hazardous Waste Treatment Council would be wel-

come. The Treatment Council’s financial interest in the

outcome of any dispute involving the environmental laws

would ensure its advocacy; that advocacy would be es-

pecially useful because it would bring expertise born

of the marketplace to describe the technical and practical

solutions to the problems that Congress perceived.

1. With the advent of administrative agencies and

“quasi-legislative” rulemaking, Congress has changed the

process for making many of the policy and practical de-

cisions involved in lawmaking as historically understood.

As part of the quid pro quo for that change of lawmak-

ing venue, Congress has established a procedure, which

includes not only a citizen’s right to participate in the

administrative process, but also a right of judicial re-

view for all those “adversely affected” by the agency’s

actions. 5 U.S.C. § 702. This element of review was

plainly designed by Congress to ensure that the agency’s

actions, under color of statutory authority, were not in

fact inconsistent with Congress’ will. And in substitut-

ing an administrative process for the legislative process,

Congress nowhere expressed any intention to restrict the

participants in the process. Thus, this Court has repeat-

edly referred to the “generous review provisions” of the

APA and has cautioned that its review provisions “should

be construed ‘not grudgingly but as serving a broadly re-

medial purpose.” Clarke, 497 U.S. at 399 (citations

omitted). For precisely the same reasons that business

groups like the Treatment Council are important partici-

pants in the legislative process, they are vital partici-

pants in the administrative process as well.

2. In a given case, Congress’ intent to preclude review

may be inferred from the statutory scheme considered

as a whole—for example, “when a statute provides a

detailed mechanism for judicial consideration of particu-

lar issues at the behest of particular persons, judicial

iy

24

review of those issues at the behest of other persons

may be found to be impliedly precluded.” Community

Nutrition Inst., 467 U.S. at 349. But it is apparent that

the basic presumption must go the other way: Consistent

with Congress’ intent, and with the important purpose

served by review of administrative rulemaking, the courts

ought to hear challenges to administrative rules by those

suffering injury from those rules, unless there is some

persuasive reason not to. See City of Milwaukee v. Block,

825 F.2d 1158, 1166 (7th Cir. 1987) (“Under Clarke,

we begin with the presumption that parties who meet

the requirements of Article III have standing to contest

actions by federal administrative agencies’).

The restrictive approach of the court below frustrates

the implementation of any statutory scheme to which it

might be applied. If the position denied a hearing is,

in fact, meritorious, then, by definition, the agency has

been allowed to flout Congress’ intentions. And because

the administrative process is an extension of the legisla-

tive process, any curtailment of standing tends to distort

the process of policymaking that the Framers contem-

plated, wherein diverse interests would vie against each

other through argument and debate.

3. Effective participation in the administrative process

by groups like the Treatment Council hinges not only on

the quality of their arguments, but on their ability to

obtain judicial review if their well-founded arguments

are ignored. It denies reality to believe that the Treat-

ment Council can remain a viable participant in the ad-

ministrative process once the courts have held that ad-

ministrative agencies are free to ignore its advice. But

the arguments and expertise provided by groups like the

Treatment Council—which, because they are in the busi-

ness of treating hazardous wastes, have knowledge vital

to fulfilling the goals that Congress set for the agency—

are precisely the arguments and expertise that the agency

needs in order to perform its statutory mission success-

a

25

fully. The courts should be reluctant to exclude from ju-

dicial review of agency action persons whose vigorous

participation in the administrative process is plainly

essential.

B. The test announced by the Court of Appeals in this

case tends to involve the courts in subjective judgments

about who should be allowed to argue what in the courts.

1. Of course, the first prong of the test—whether Con-

gress expressly intended to benefit the would-be plaintiff

__ig similar to the kinds of inquiries that courts ordi-

narily make. But as applied by the Court of Appeals

in this context, it leads to absurdly restrictive results—

as this Court’s rejection of the “express benefit” test in

Clarke recognized. As explained above, the Treatment

Council and its members, because of the business they are

in—-environmental protection—necessarily benefit when

Congress passes laws better to protect the environment.

Indeed, Congress has quite consciously promoted the de-

velopment of such an industry as a necessary step to the

accomplishment of its environmental goals. Yet, in this

ease, the Court of Appeals found the express intended

beneficiaries of the lofty environmental laws to be only

“eonsumers,” notwithstanding statutory language and leg-

islative history demonstrating that the waste treatment

industry was also to be enhanced and expanded to achieve

the legislative goals. At the same time, the Court of

Appeals recognized that even on silent legislative records,

in regard to other statutes, this Court has had little

difficulty finding that parties suffering competitive injury

would indeed have standing. The distinction is intuitive

at best. It would appear far more reasonable to presume

that an industry or group that would, in fact, directly

and predictably benefit from the passage of a statute

was at least among those that Congress sought to benefit.

9 The second prong of the test announced by the

Court of Appeals—whether the parties seeking review

26

“would be unusually suitable champions of Congress’s ul-

timate goals’”—is entirely subjective. The court below

found that the Treatment Council was not an “unusually

suitable champion” of Congress’ ultimate goals, despite

the facts that (1) Congress relied on, and sought to en-

courage the expansion of the treatment industry in order

to secure a safe environment; (2) Congress has his-

torically relied upon firms suffering competitive injury

to pursue challenges to administrative regulations; (3)

the Treatment Council’s interests in providing advanced

forms of hazardous waste treatment, and added capacity,

appear entirely congruent with the statutory objectives;

and (4) the Treatment Council and its members have the

incentive to advance their arguments informatively, and

the special expertise vital to intelligent decisionmaking

in the field. Under these circumstances, the court’s de-

termination that the Treatment Council did not meet its

burden of showing that it was an “unusually suitable

champion” demonstrates that this new test of standing

will invariably turn more upon the predisposition of ap-

pellate panels than upon Congress’ intent.

3. Apparent as well is the unseemly charade that this

type of ruling produces. The inevitable effect of a ruling

like this is to require an organization like the Treatment

Council to modify the composition of its membership so

that it can acquire “standing” to participate in the ad-

ministrative and judicial processes that are essential to

its economic survival. Predictably, injured organizations

which find themselves excluded by ill-conceived prudential

rules of standing will seek to bring within their member-

ship, or ride the coattails of, persons whose interest in

the outcome of particular disputes is more to the par-

ticular court’s liking.**

24 Excessive vigilance in applying prudential rules to forestall

review of agency laxity embroils the courts of appeals in pro-

cedures to which they are poorly suited. In both of these cases,

the orders of the court below required the submission of hosts

|

27

Commenting upon the search for sufficiently suitable

beneficiaries engendered by harsh “prudential” rules of

standing, this same Court of Appeals in Control Data

Corp. v. Baldrige, 655 F.2d 283 (D.C. Cir.), cert. denied,

454 U.S. 881 (1981), commented upon the process it was

creating:

We are not unmindful of the quality of fantasy or

play in the search for beneficiaries. “Litigants search

for a personality that will fit the demands of the

court, tailor their attributes, paint their faces, ma-

nipulate their identities . . . ”” We do not believe

it is our place, however, to eall a halt to this “masked

ball.”

655 F.2d at 297 n.28 (citation omitted).

With this Court’s express disapproval of the rule es-

tablished by the Court of Appeals in Control Data, this

Court seemed to put an end to the “masked ball.” See

Clarke, 479 U.S. at 395. The decision below restores it.

C. The same financial interests that provide the in-

centive to participate in administrative and judicial pro-

ceedings also create the financial ability to participate

effectively. The environmental organizations that the

Court of Appeals apparently viewed as “suitable champ-

ions” of Congress’ environmental objectives frequently

lack the financial resources to pursue all matters of con-

cern to them, no matter how important the issue is, or

how far from the requirements of law the agency has

strayed. Public interest groups frequently rely upon bus-

‘nesses with commercial interests coincident with their

own to take the laboring oar in helping to assure that the

environmental laws are properly and informatively en-

of affidavits and counter-affidavits designed to illuminate with pre-

cision the way in which the Treatment Council and its members

were affected by the agency’s regulations, as well as their relation-

ship to the overall objectives of the Act. The inappropriateness of

such evidentiary exchanges in the courts of appeals (in pursuit of

self-created prudential standards, rather than standards required

by the Constitution or by Congress) should be apparent.

28

forced. Indeed, similar reliance and alliances have been

formed throughout the Nation’s history in an effort to

influence public policy. Thus, an important means of en-

suring agency compliance with environmental law has

been cut off, to the detriment not only of the business

organizations that will suffer financial injury, but to the

detriment of the very consumer groups that even the

court below recognized were intended to be benefited by

these Acts.

ill. THE REJECTION OF PETITIONER’S INTEREST

AS A BASIS FOR OBTAINING JUDICIAL REVIEW

CREATES A SIGNIFICANT OBSTACLE TO THE

IMPLEMENTATION OF THE ENVIRONMENTAL

LAWS AND UNNECESSARY CONFUSION IN THE

LAW OF “STANDING.”

As demonstrated above, the decision of the Court of

Appeals in these cases is flatly inconsistent with the basic

premises of this Court’s recent cases. By purporting to

find internal tensions in Clarke sufficient to warrant the

creation of a special review-limiting test, the analysis of

the court below creates obstacles to judicial review that

a straightforward reading of Clarke precludes. Other

circuits have had little difficulty applying Clarke’s “plau-

sible relationship standard” in similar cases without any

need to reverse the presumption or to require the peti-

tioner to show he is an “unusually suitable champion” of

Congress’ goals. Applying Clarke directly, those courts

have reached results directly at odds with the decision

below. See, e.g., DeLoss, 822 F.2d at 1462-66: Foremost.

860 F.2d at 232-34; Block, 823 F.2d at 1164-67.

The obstacles to judicial review created by this de-

cision—directed to situations where businesses are seek-

ing more effective implementation of laws protecting the

health and safety of citizens—are of vital importance to

the overall scheme of enforcement of the environmental

laws. This ruling—by the court possessing exclusive ap-

pellate jurisdiction over many of the major federal en-

a