# Opposition Brief — Hazardous Waste Treatment Council v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1067%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1106 ## Text Supreme Court, USs FILED ALAY 15 15969 In the Supreme Court of the Unitey Bates OCTOBER TERM, 1988 No. 88-1532 OO ———— ee . HAZARDOUS WASTE TREATMENT COUNCIL, PETITIONER V. ENVIRONMENTAL PROTECTION AGENCY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUII BRIEF FOR THE RESPONDENT IN OPPOSITION WILLIAM C. BRYSON Acting Solicitor General DONALD A. CARR Acting Assistant Altorney General SCOTT A. SCHACHTER Attorney Depariment of Justice Washington, D.C. 20530 (202) 633-2217 BEST MILABLE COPY Ne QUESTION PRESENTED Whether the court of appeals properly concluded that petitioner’s interests are sO marginally related to or incon- sistent with the purposes of the Resource Conservation and Recovery Act of 1976 that petitioner lacks standing to pursue the challenges in this case. (1) ‘4 . “ } } ; - { )* ; . A ‘ . { { : “ ’ * ; x | ’ | | { ; ‘th, ’ i ; ; ' ; 4/ fy} | ; . . ; . ’ ; . , : ; Pe ‘ ’ . : > j : . : ; : 4 ; Jn the Supreme Court of the Cnited States OCTOBER TERM, 1988 No. 88-1532 HAZARDOUS WASTE TREATMENT COUNCIL, PETITIONER Vv. ENVIRONMENTAI PROTECTION AGENCY ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT! BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW [he opinions of the court of appeals (Pet. App. la-27a, 430a-40a) are reported at 861 F.2d 277 and 866 F.2d 433. JURISDICTION Ihe judgment of the court of appeals in No. 86-1143 below was entered on October 7, 1988. Petitions for rehearing were denied on December 20, 1988. Pet. App. 28a. The judgment of the court of appeals in Nos. 87-1487, 87-1548, and 88-1177 below was entered on January 13, 1989. The petition for a writ of certiorari was filed on March 17, 1989. The jurisdiction of this Court ts invoked under 28 U.S.C. 1254(1) STATEMENI [his case involves challenges by petitioner, an industry trade association, to three regulatory actions taken by the (1) ty Administrator of the United States Environmental Protec- tion Agency (EPA), pursuant to the Resource Conserva- tion and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 e7 seq. The first EPA action, which was the subject of the first opinion below, was the promulgation of final regulations establishing standards under Section 3004(q) of RCRA, 42 U.S.C. 6924(q), for used oil that is burned for energy recovery. The court of appeals dismissed part of peti- tioner’s challenge to those regulations for lack of standing and upheld the rule in all other respects. Pet. App. la-27a. The other two EPA actions are the subject of the second opinion below. EPA published a notice establishing the deadline for certain cement kilns burning hazardous waste fuel (HWE) to submit permit applications under Section 3005 of RCRA, 42 U.S.C. 6925 (1982 & Supp. IV 1986). EPA also promulgated final regulations establishing standards for the permitting of “miscellaneous units” under RCRA. The court of appeals dismissed petitioner's challenges to both of those EPA actions because petitioner lacked standing. Pet. App. 30a-40a. In both of its opin- ions, the court of appeals determined that petitioncr’s in terests in the lawsuits were not within the “zone of in terests” protected or regulated under RCRA. 1. In 1976, Congress enacted Subtitle C of RCRA, 42 U.S.C. 6921-6939b (1982 & Supp. IV 1986). Congress's aim was to create a comprehensive “cradle to grave” regulatory program to protect human health and the environment from the risks associated with the improper handling, storage, and disposal of hazardous waste. See H.R. Rep No. 1491, 94th Cong., 2d Sess. 3 (1976). To that end, EPA must identify and list those solid wastes that are hazard ous, and thus subject to regulation under Subtitle C. See ’ ' » ; + : ‘ ; ; . ; | ,* \ 2K) : ) ; ‘ : 7 : | . : , : ,* \ :\ 7 | tr) , | | ‘ : nf ; . 4 | we . ry | (at b- | 4 | " ' ; . a " | : ‘ | | . ° : ’ ‘ + ,;» xt KA 4 : s : at oy iyi ‘ a f ;™* On Septem! 5, 1987, EPA | | ' ip} | id : ' ne HW | | hy . ; ;™ | ’ a . . : RCRA } j j : ; ( ; { j . PAO} ; . rp 5 ‘ \ i r : 4 is 1 petitioner challenged. The legal basis tor the challenge was that the regulations were not sufficiently stringent or com prehensive to protect human health and the environment, and thus were inconsistent with EPA’s mandate under RCRA. Petitioner claimed standing to maintain the action based on injury to the commercial or economic interests of its members; it alleged that more restrictive regulations would have expanded the market for products and services provided by petitioner's members he court of appeals concluded that the commercial in terests represented by petitioner are not within the “zone of interests” protected by RCRA. Pet. App. 5a. Thus, petitioner lacks standing to represent member firms allegedly suffering economic injury resulting trom the failure of EPA’s regulations to force others to use the more costly methods or technology that petitioner's members employ or offer for sale. The court of appeals held, however, that petitioner does have standing to repre ent members allegedly suffering an environmental injury as a result of the alleged laxity of EPA regulations. Since one of petitioner’s members did allege an environmental injury, the court of appeals reached the merits of peti tioner’s petition for review. The court upheld the used-oil regulations challenged by petitioner as consistent with RCRA. /d. at 2la-27a.’ }. Petitioner also petitioned for review of the noti tablishing the permit deadline tor ment kilns (C.A No. 87-1548) and the regulations for miscellaneous unit ; ind T j ha EPA f | " i | r 6 (C.A. No. 88-1177).4 At the time the petitions for review were filed, petitioner alleged solely economic and com- petitive injury to its members as a result of EPA’s actions. The economic injury was a loss of potential treatment business and HWF supply as a result of the diversion of hazardous waste to less costly methods of hazardous waste management. Such diversion was allegedly encouraged by the EPA actions, which allowed certain cement kilns to burn HWF before receiving a permit, and the potential permitting of geologic repositories for disposal of hazard- ous wastes. The court of appeals held the petitions for review pend- ing the disposition of a petition for rehearing with sugges- tion of rehearing en banc concerning the holding in its earlier opinion that petitioner’s allegations of economic in- jury do not suffice for standing purposes. See Pet. App. 35a. On December 20, 1988, the court of appeals unanimously denied rehearing and rehearing en banc. /d. at 28a-29a. The court of appeals then disposed of the pending consolidated petitions for review based on its earlier opinion. The court of appeals held that the <.lleged competitive economic injuries are insufficent to bring peti- tioner within the zone of interests protected by RCRA. /d. at 32a. The court of appeals also rejected petitioner’s claim of standing on the basis of the interests of two new “members” of petitioner—individual private citizens allegedly suffering environmental injury — because those individuals were added as members after the statutory 90-day period (see 42 U.S.C. 6976(a)(1)) for challenging * The court of appeals consolidated those two petitions, and a similar petition filed by Petro-Chem Processing, Inc. (C.A. No. 87-1487), which is not 4 party here (Pet. 1i n.**), for disposition in a single Opinion. these actions under RCRA. Pet. App. 36a-39a. Finally, the court of appeals also held that the possibility that some of petitioner’s members might dispose of their treatment residues in geologic repositories that fail to contain the residues in the future, that those members might ultimate- ly be financially responsible for the resulting contamina- tion, Goes not provide standing. /d. at 39a-40a. Because petitioner’s members are not required to use any unsafe disposal methods, and the use of the geologic repositories would be entirely voluntary, the court found the alleged economic injury to be self-inflicted, and thus not fairly traceable to the challenged EPA regulations. ARGUMENI rhe standing “zone of interests” test concerns “the ques- tion whether the interest sought to be protected by the complainant is arguably within the zcne of interests to be protected or regulated by the statute * * * in question.” Association of Data Processing Service Orgs., Inc. v. Camp, 397 US. 150, 153 (1970). The test excludes plain- tiffs whose lawsuits “are more likely to frustrate than to further the statutory objectives.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 397 n.12 (1987). 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 inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. Id. at 399. The court of appeals properly applied this prudential “zone of interests” test to petitioner’s interests in the cases below. Petitioner’s fact-bound challenges to the straight forward analysis of the court of appeals do not merit this Court’s review. 1. Petitioner first argues (Pet. 10-22) that the ruling below is contrary to this Court’s decision in Clarke v. Securities Indus. Ass’n, supra. Petitioner contends that the court of appeals required an affirmative demonstration of congressional intent to benefit the petitioner in order to demonstrate standing, a proposition rejected by this Court in Clarke. That is incorrect. Instead, the court of appeals sought to find “operational meaning for a test that demands less than a showing of congressional intent to benefit but more than a ‘marginal[] rela[tionship]’ ic the Statutory purposes.” Pet. App. 10a. Under this Court’s decision in Clarke, whether a plain- tiff is within the “zone of interests” of a statute is a ques- tion of whether it should be reasonably inferred that Con- gress intended that a person with the interest of the par- ticular plaintiff be relied on to challenge an agency’s al- leged disregard for the law. Clarke v. Securities Indus. Ass’n, 479 U.S. at 403.° Under the principles set forth in Clarke, the prudential test for standing does not require an indication of a congressional purpose to benefit the plain- tiff. Jd. at 399-400. Rather, the zone of interests test is satisfied when “ ‘Congress ha[s] arguably legislated against the [injury] that [petitioner seeks] to challenge.’ ” Id. at 403 (quoting Investment Co. Inst. v. Camp., 401 U.S. 617, 620 (1971) (emphasis added)). See Arnold > Petitioner confuses two related, but separate issues: reviewability, or whether a particular agency action is subject to judicial review by any party (see Block v. Community Nutrition Inst., 467 U.S. 340 (1984)), and the standing zone of interests test, or whether a particular party should be heard to challenge a particular agency action. Pet. 10-11, 23-24. See Clarke v. Securities Indus. Ass’n, 479 U.S. at 399. The general presumption in favor of judicial review of agency action under the Administrative Procedure Act does not concern the issue of who are proper parties to challenge agency action. Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970); Data Proc- essing Service Orgs., 397 U.S. at 155-156. Petitioner’s members are not regulated by the provisions of the regulations that they challenged in the petitions for review. Nor does petitioner represent, or otherwise claim here an injury to‘its members with respect to, the human health or environmental interests that RCRA was in- disputably designed to protect.® Rather, petitioner’s sole interest in these challenges is the enhanced market position and profit to its members that may result from the applica- tion of more stringent or comprehensive environmental regulations to other members of the regulated community. Because the pecuniary interests of its members thus may coincide with more stringent hazardous waste regulation, petitioner asserted below that its interests are within the zone Of interests protected under RCRA. In assessing the standing of petitioner, the court of ap- peals determined that the treatment industry was not an intended beneficiary of the congressional purpose to pro- tect human health and the environment under RCRA. Pet. App. lla, 35a-36a. Rather, the financial benefit to peti- tioner’s members resulting from the statute and EPA regulations was an incidental result of the congressional objective in RCRA to promote safer management of hazardous waste by encouraging treatment and recycling over land disposal. As the court of appeals observed, the indisputable congressional intent to promote human health and the environment by encouraging the proper treatment and disposal of hazardous wastes Shows neither that Congress intended to benefit recycling and disposal firms nor that such firms’ in- ® See 42 U.S.C. 6902(a)(4) and (6) (Supp. IV 1986). See also H.R. Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976); H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 80-81 (1984). 10 terests are more than “marginally related” to Con- gress’s environmental purposes. Whenever Congress pursues some goal, it 1s inevitable that firms capable of advancing that goal may benefit. If Congress authorized bank regulators to mandate physical security measures for banks, for example, a shoal of security services firms might enjoy a profit potential. ** * fA] rule that gave any such plaintiff standing merely because it happened to be disadvantaged by a particular agency decision would destroy the require- ment of prudential standing; any party with constitu- tional standing could sue. Pet. App. lla. In applying the Clarke analysis to petitioner, the court of appeals found that petitioner’s interests were no More than marginally related to the purposes of RCRA. Pet. App. 10a-lla. That is because petitioner was before the court of appeals not as a protector of the environment, but as a representative of a group of entrepreneurs promoting business expansion and seeking protection from alleged economic injury caused by increased competition. /d. at 9a. Thus, the court of appeals properly determined that petitioner’s competitive interests were only incidentally related to RCRA’s environmental goals.’ ’ Contrary to petitioner's argument that the court of appeals created a new test or barrier for standing by requiring an affirmative demonstration of congressional intent to permit sult, the court of ap- peals expressly stated that the prudential zone of interest test “demands less than a showing of congressional intent to benefit but more than a ‘marginal[] reia[tionship]’ to the statutory purposes.” Pet. App. 10a. The court of appeals’ formulation of the test takes into ac- count circumstances — which the court of appeals found to be present in the cases below — where a petitioner’s interests “are more likely to frustrate than to further statutory objectives.” Clarke v. Securities In- dus. Ass’n, 479 U.S. at 397 n.12. Accordingly, the court of appeals ac- } } j | ) i C | . \ | \ iT * ’ . ‘ ’ | . } } ‘ iit iil ‘ i } ‘ CU ‘ \ \ i : S < | } | 1 | | | | ~ ACU « \ bihuiiLa Wi * 4 , ~ if ; f i) ‘ ‘ . i i es" i La bic . } ’ j +} . ( . . y iL DCTITit bit . " , , , } if ’ i S . . SiS | With ¢ UTAé ; ‘ ‘ } } ; + «) : " + . ‘ WC i AC c OllC U iil , , t i] h t 4 . Ca S | ‘ ext) all that tne ; ; ; = | ] lof } iis . Uy Ss gia iit should dete! + } t 7. . i . ~ A> | LI1LIONHe! he i ' . ¢ y C < J ~ C LTickIicy i ADI ii ; rt t att ‘ j 1 LLLC AL, AS petl ) | lhe | ) +} . eh : ‘ ‘ ’ . iSSC (Pe Plage Rather, the court Ol appeals t the statutory g f RCRA, Pet. A ed that the Statulrory EOdals VO! RCRA, Pet. App , ; — | , " et | | ‘1 i" ' ‘ Mt ~ ina P relevant legisialtive NISLOTS id. al 3a 36a, " , ’ } congressional intent to encourage propel disposal aste. The court of appeals ‘ver, that such mn intent does not emonstrate that the competitive and financial interests of hazardous waste treatment firms have more than a arginal relationship to Congress's en\ ronmental goals inder RCRA. /bid court of appeals perceived a significant i r [nal netitioner s challenges undel R ¢ R \ could pro /the “inconsistent with 12 — duce results inconsistent with the environmental goals of the statute. Pet. App. 1la-12a. The court of appeals deter- mined that the outcome of judicial review initiated to pro- mote petitioner’s competitive interests, while it might benefit the profits of petitioner’s members, could lead to environmentally harmful results. Jd. at 12a. That is because the increased cost of more stringent regulations might lead to the substitution of more environmentally harmful waste management methods. /bid. The same risk was also present in Nos. 87-1487 and 87-1548 below, wherein petitioner sought to limit the num- ber of facilities burning HWF in competition with peti- tioner’s members. If successful, petitioner’s challenge would have fostered the use of rural cement kilns, which are totally unregulated under RCRA, and the associated transportation of hazardous waste over long distances to those kilns. Another result of petitioner’s challenge might be that fewer facilities would be qualified to treat hazard- Ous waste, contrary to congressional intent to promote en- vironmentally protective process substitutfon, materials recovery, properly conducted recycling and reuse, and treatment. See 42 U.S.C. 6902(a)(4) and (6) (Supp. IV 1986). The court of appeals’ ruling was thus a direct appli- cation of Clarke to the standing of petitioner under RCRA. Petitioner concedes here (Pet. 17) that the protection of its economic and competitive interests was “obviously not the ultimate purpose” that Congress intended to further in enacting RCRA.® Rather, Congress was legislating to pro- tect human health and the environment. Congress was not ’ ’ To support its argument that EPA has “openly acknowledged’ consistency between petitioner’s interests and the goals of RCRA, petitioner cites a Federal Register notice in an unrelated administrative proceeding in which EPA restated allegations of fact that petitioner has made. Pet. 17 n.20; see 52 Fed. Reg. 43,906 (1987). The statement in the Federal Register notice, however, was merely a recitation of an 13 regulating economic competition in RCRA.’ Consequent- ly, Congress has not “ ‘arguably legislated against the [in- jury] that [petitioner seeks] to challenge.’ ” Clarke v. Securities Indus. Ass'n, 479 U.S. at 403 (quoting /nvest- ment Co. Inst. v. Camp, 401 U.S. at 620). The court of ap- peals reasonably concluded that a number of factors preclude any reasonable inference that Congress intended to rely on commercial interests such as petitioner’s to vin- dicate environmental claims under RCRA. 2. Petitioner contends (Pet. 13, 28) that the decision below conflicts with 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); and City of Milwaukee v. Block, 823 F.2d 1158 (7th Cir. 1987). No such conflict exists The present case turns on whether Congress has ‘*arguably legislated against the [injury] that [petitioner seeks] to challenge,’¢ Clarke v. Securities Indus. Ass’n, 479 U.S. at 403, an inquiry that naturally will vary in its application trom statute to statute. The court of appeals, faithfully carrying out the inquiry mandated by Clarke, studied the provisions and purposes of RCRA and deter- as-yet-unsubstantiated allegation by petitioner in administrative pro ceedings that have not yet been completed. See 53 Fed. Reg. 32,899 (1988) * In the cases where this Court has found competitor standing, the Statutes al issue contained provisions protecting parties from unlawtul competion. See, e.g., Hlardin vy. Kentucky Uulities Co., 390 U.S. 1, $-7 (1968): Chicago \ iichison, ] A S./ R\ . 3§7 U S 77, 83 &4 (1958). RCRA contains no such provisions that make competition unlawtul. Thus, the court of appeals properiy concluded that the cases involving commercial competition and market entry restrictions do not apply to the zone of interests inquiry under RCRA. Pet. App l2a-l4a 14 mined that it would be inconsistent with the purpose of the relevant statute to allow the suit. See also Sacilor, Acieries et Laminoirs de Lorraine v. United States, 815 F.2d 1488, 1491 (Fed. Cir.), cert. denied, 108 S. Ct. 285 (1987). The cases that petitioner cites involve the construction of Statutes whose provisions and purposes do not remotely resemble those of RCRA—in DeLoss, statutes providing support for low-income housing; in Foremost, a statute regulating the economic relationship between distributors and retailers of alcoholic beverages; and in Milwaukee, Statutes regulating the preferences among various shippers of agricultural commodities. To hold that “competitors” of those who are primarily regulated by those statutes have standing is hardly to say that any decision denying “com- petitors” standing under any statute is wrong. The decision below in no sense conflicts with the decisions that peti- tioner cites. 3. Petitioner also asserts (Pet. 22-30) that the court’s ruling represents a significant restriction on judicial review of agency action allegedly inconsistent with statutory directives, particularly EPA actions under environmental statutes. The ruling below is very narrow, however. The question addressed by the court was not whether commer- cial injury is a basis for standing in challenges to en- vironmental regulations, whether the treatment industry has standing to participate in administrative actions, or whether petitioner may be a party to a challenge alleging unlawful laxity in EPA regulations. Rather, the court below merely held that petitioner’s commercial or com- petitive economic interests fail to meet prudential standing requirements as a protected interest under a statute in- disputably designed to promote human health and en- vironmental interests. Thus, under the ruling of the court of appeals, a firm or its trade association representative ~ may not initiate a challenge to environmental regulations under RCRA that do not apply to the firm where the sole alleged injury is that the rules do not sufficiently maintain or enhance market position or profits. Commercial firms alleging economic injury would generally have standing to challenge rules under which they are regulated and that injure their interests, commer- cial or otherwise.'® The vast majority of challenges by in- dustry members to EPA regulations are of this type. Moreover, the firm may be a party to a challenge to al- leged laxity in environmental regulation if another plain- iff Or petitioner meets the applicable prudential standing requirements. Indeed, the court of appeals recognized this in the companion case to petitioner’s challenge to the used- oil regulations, where petitioner was a co-petitioner with an environmental organization. Hazardous Waste Treat- ment Council vy. EPA, 861 F.2d 270, 273 (D.C. Cir. 1988) (challenge to EPA decision not to list certain used oil as hazardous waste). Finally, the, firm may, of course, con- tinue tO pursue its interests by administrative means (e.z., by petitioning EPA for a rulemaking) and by legislative means. Accordingly, this case —invelving only a particular application of settled legal principles — fails to raise an im- portant question that merits review by this Court. See Pet. App. 8a (“That the injury is commercial is no obstacle ‘[Sineering at [commercial] gains by adding “mere” to them does not ; ‘ . CONCLUSION [he petition for a writ Of certiorari should t Respectfully submitted MAY 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1067%3A3. Public record. Not legal advice.