# Petition for Writ of Certiorari — Mallinckrodt, Inc. v. Maine People's Alliance (No. 06-1540) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0494%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text No. 06-°° ae ir) IN THE Supreme Court of the United States MALLINCKRODT INC. Petitioner. ai MAINE PEOPLE’S ALLIANCE AND NATURAL RESOURCES DEFENSE COUNCIL, INC. Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit PETITION FOR WRIT OF CERTIORARI J. ANDREW SCHLICKMAN CARTER G. PHILLIPS* JOHN M. HEYDE JOSEPH R. GUERRA SIDLEY AUSTIN LLP NoRINA |. EDELMAN One South Dearborn SIDLEY AUSTIN LLP Chicago, IL 60603 1501 K Street. N.W. (312) 853-7000 Washington, D.C. 20005 (202) 736-8000 Counsel for Petitioner May 16. 2007 * Counsel of Record ——— ee WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002 QUESTIONS PRESENTED 1. Whether a mere non-imaginary risk that someone or something may be exposed to harm in the future can confer Article III standing when no federal or state agency has deemed the risk unacceptable and where a multi-year, multi- million dollar study must be conducted to determine whether prior releases of a hazardous substance are “posing an unacceptable risk to human health.” 2. Whether the Resource Conservation Recovery Act’s (RCRA) citizen suit provision, which authorizes suit only where a hazardous waste “may present an imminent and substantial endangerment to the health or the environment,” authorizes a finding of liability and imposition of judicial relief based merely on a showing that such waste gives rise to a non-imaginary risk that someone or something may be exposed to harm. li PARTIES TO THE PROCEEDINGS In addition to the parties named in the caption, HoltraChem Manufacturing Company, L.L.C. was initially a defendant in this action. HoltraChem dissolved as a corporate entity in March 2001, and has not participated in this litigation since that time. Petitioner Mallinckrodt LLC is a wholly-owned subsidiary of its parent, United States Surgical Corporation (“USSC”). USSC is not publicly held, but its ultimate parent, Tyco International Ltd., is publicly held. TABLE OF CONTENTS QUESTIONS PRESENTED..............cssccesssseseereeeeceeseeeee PARTIES TO THE PROCEEDINGGB............0.-:cscsseseeseeees TABLE OF AUTHORITIEG. ...............sccccsssseorserssceescseoes CI I sc siusicassesanipcasnbaniiohen JURISDICTION scscccessccsscsrssnssresccosasscsennsosnqnsonsnonsneonasonnes CONSTITUTIONAL AND STATUTORY PROVIS- PETE TN VOLVED vn cvcssescncenosonssonsennsensncnnsnonsanenasonsncsnene STATEMENT OF THE CASE...............:.scccsecsssessseeseeees A. The Underlying Dispute ...................:csssesseseeees B. Proceedings And Rulings Below..................:+++ REASONS FOR GRANTING THE PETITION...........:. I. WHETHER AND THE EXTENT TO WHICH Il. THE THREAT OF FUTURE HARM CAN GIVE RISE TO STANDING IN THE ABSENCE OF ANY INDEPENDENT AGENCY ACTION IS A RECURRING AND VITAL QUESTION OF CONSTITUTIONAL LAW. ..............ccccseeesersersceeres THE PROPER INTERPRETATION OF THE CITIZEN-SUIT PROVISION OF THE RE- SOURCE CONSERVATION AND RECOVERY ACT IS AN IMPORTANT QUESTION OF FEDERAL LAW ......0-....eccsscssscoserccseresecevevessnesosenss A. The Lower Court’s Interpretation Is Inconsis- tent With The Statute’s Allocation Of Policy- Making And Enforcement Authority.................. (i11) Page iV TABLE OF CONTENTS—continued B. The Decision Below Misconstrues RCRA And Violates Fundamental Rules Of Statutory I itis acpertisstcinictbccteteensccncncien 1. The First Circuit Failed To Give Meaning To RCRA’s Hierarchy Of Risks And I a icsisiasiscvsisiensiniatiiendcehaieditiovaniiccbibinishs 2. The First Circuit’s Interpretation Renders § 7002(a)’s Bifurcation Of Citizen Suits RE ACERT I eT 3. The Lower Court’s Interpretation Fails To Give The Same Words In Different Parts Of RCRA The Same Meaning .....................c0e00 C. The Lower Court’s Error Is An Issue Of Significant National Importance Because It Will Have A Significant Adverse Effect On Industrial Development And Will Interfere With Agency Enforcement Decisions................. aga ikaih ceinatsinnicrsacsssteshsisabteldsbubiiesideesehucsiehaiaacint Vv TABLE OF AUTHORTIES CASES Page Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)... 15, 25 Chicago & S. Air Lines v. Waterman S.S. Corp., PRES Te 8 5. Maneneon tenets ete eve seseas meron e CVTOn 15 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)... 21 Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d USEF ey Te stein sinevcosesnsitnnseasesiasipeatuisanete 11 Environmental Def. Fund v. EPA, 598 F.2d 62 CR a casks ceicnstsiniecssgspintolaciseteasieess 11 Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)... 21 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)............00 12, 13, 14 Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000)... 12 FTC v. Mandel Bros., Inc.., 359 U.S. 385 (1959)... 19 FTC v. Standard Oil Co., 449 U.S. 232 (1980) ...... 25 Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 19 Gustafson v. Alloyd Co., 513 U.S. 561 (1995)...... 19, 21 Holmes v. Securities Investor Prot. Corp., 503 Fe A Ce ices cacvaciceictivanrsesmaicnyshaspireenishenasang’ 21 Industrial Union Dep’t v. American Petroleum Pree A a OT CTS) vac icivnscnicecstatnsasesvennecy 11,24 International Paper Co. v. Ouellette, 479 U.S. BE CIE iasiiiiccivsechiestdssiincecdigetinasacbtnnsnsnpnkiinirs 23 Japan Whaling Ass’n v. American Cetacean Soe y, BIBI B. 221 GIG GB) on oicascesnnce sn csecstntrstvessns 21 Jarecki v. G.D. Searle & Co., 367 U.S. 303 ip, | RRR ie On ERNE ONC AMPLE EONS PER 20 King v. St. Vincent’s Hospital, 502 U.S. 215 CRIED is discs cetnstiseienacenscinsbiuctiiasineniaiaaianipapianign 19 Lujan v. Defenders of Wildlife, 504 U.S. 555 Oise sacistincessivesinansbiiinccotamecevasbanbpaibiabininbieaii 9 vi TABLE OF AUTHORTIES—continued Page Meghrig v. KFC W., Inc., 516 U.S. 479 (1996)....... 3, 16 National Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Ee IE 2 ais ss cxtdsncscscsicheh sbcess slate chbiarhaniecdhascouneabinnodle 11 O’Melveny & Myers v. FDIC, 512 U.S. 79 EN ciaicastaclicaidavisncouasdexoeorihasaciiuninentshelnaonscveniinss 15 Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Rim Mr Fed cissiiaiiastochaniicsats eievidesiaolentebeliges teveeabenstnees 21 Sierra Club v. Morton, 405 U.S. 727 (1972) ........ 13, 14 Steel Co. v. Citizens for a Better Env't, 523 U.S. eI ickssiccnishiieiminhatndhddehliosaiivansasanssionsksbinasaie 12 Texas Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005).................. 14 Texas Indus., Inc. v. Radcliff Materials, Inc., 451 Fai A AE Pickcis dein gioeseuticdbinisicicsvnscatnlavyerscanwmins 15 STATUTES AND CONSTITUTION Stee Se Is Os MEE. poiincinscsnsniccsennsisncannssbenadiossinses 1 Ie Sane as ihehiti da edonciiesannticswiiatedinsenainoni 17 eI isis disliasisaiendesieancanincnbonasniedalaites 17 ihe as nce casentcinion anda 17 Se Sa Sicha dcebibdiiedediniiilecnicnschiniitnsedeondlatics 17 IU iii a Oia spci klik caiahcehcpiababanbaebtink 4,22 SN isis asiuninsisesinischanitivnkaiosshdiiagieis cae 18 NID iki disanihccadiconiesncnnasntiniiele 18 IIE ehiicnsdickssanctnctninasineciionians 1,5, 17, 20 SU alii ince dnseencics stun tianensniacanabuasaions 2,18 LEGISLATIVE HISTORY S. Rep. No. 94-988 (1976) .....csccscccsssecscscssescsssseseeen 21 Vii TABLE OF AUTHORTIES—continued SCHOLARLY AUTHORITIES Joseph F. Brodley, Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals, 94 Mich. L. WW: F FIDE, BG iasccakcs iricscesinecsiotenapreiaconeonssiivice Frank B. Cross, Rethinking Gusenia Citizen Suits, 8 Temp. Envtl. L. & Tech. J. 55 (1989)..... William N. Eskridge, Jr. & Philip P. Frickey, Forward: Law as Equilibrium, 108 Harv. L. REV, 26 (1994) ...-.cocssecconseorsrrernreesessonsonassereessorosors 1A Norman J. Singer, Sutherland Statutes and Statutory Construction (2006) .........ssecceresecereeees Page PETITION FOR CERTIORARI Petitioner Mallinckrodt LLC respectfully seeks a writ of certiorari to the United States Court of Appeals for the First Circuit in this case. OPINIONS BELOW The opinion of the First Circuit (Pet. App. la-36a) was entered on December 22, 2006, and 1s reported at 471 F.3d 277 (ist Cir. 2006). The order denying the Petition for Panel Rehearing and Rehearing en Banc (Pet. App. 70a-71la) was entered on January 16, 2007, and is unreported. The opinion of the United States District Court for the District of Maine (Pet. App. 40a-69a) was entered on July 29, 2002, and is reported at 211 F. Supp. 2d 237 (D. Me. 2002). The district court’s orders entered August 10, 2005 (Pet. App. 37a-38a) and July 29, 2005 (Pet. App. 39a) are unreported. JURISDICTION The First Circuit entered its judgment in this case on December 22, 2006, and denied the Petition for Rehearing en Banc on January 16, 2007. On April 10, 2007, Justice Souter granted petitioner’s timely application and extended the time for filing the petition to and including May 16, 2007. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article fit, Section 2 of the United States Constitution provices that “The judicial Power shall extend to all Cases... {and} Controversies.” Section 6972(a)(1)(B) of Title 42 of the United States Code provides, in part, that a person may commence a civil suit 2 against any person . . . including any past or present generator, past or present transporter, or past or present Owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. This and other relevant laws, including 42 U.S.C. § 6973 are reproduced in Pet. App. 72a-78a. STATEMENT OF THE CASE This case raises important questions about the scope of federal judicial power and the role of private citizens to enforce federal environmental laws. The court of appeals concluded that federal courts have the authority—under both Article II of the Constitution and the Resource Conservation Recovery Act (“RCRA”)—to compel a party to undertake a multi-year, multi-million dollar study to ascertain the very facts necessary to determine whether plaintiffs are suffering a cognizable injury and whether mercury release “may present an imminent and substantial endangerment.” These extraordinary holdings impermissibly broaden federal judicial power and afford private citizens an enforcement authority under RCRA that is co-equal with that of the executive branch. Unless corrected, the First Circuit’s decision will fundamentally alter Congress’s allocation of policy-making authority, permitting citizens freely to second-guess EPA’s policy and enforcement choices. Ultimately, these errors will intrude upon the autonomy of the executive branch and will injure the Nation’s economy. The First Circuit held that plaintiffs established Article III standing because previously discharged chemicals gave rise to a non-fanciful fear of future injury. The court below found that a sufficient injury had been established even though 3 respondents could not show that petitioner’s discharges of hazardous wastes exceeded any governmental safety standards; federal and state environmental officials believed that site-specific remedial efforts were sufficient to protect the public health; and the district court did not determine that the discharges were causing any downstream harms or that a downriver cleanup was necessary or feasible. This holding incorrectly resolves a pressing issue of national importance; namely, whether the Constitution recognizes an increased probability of risk as a cognizable injury where no politically accountable body has deemed that level of risk unacceptable. In addition, the First Circuit’s flawed interpretation of the liability standard of one of RCRA’s citizen suit provisions permits citizens to sue for injunctive relief whenever they deem the actions of the Environmental Protection Agency or state regulators inadequate. As this Court has recognized, Congress assigned “[c]hief responsibility for the implemen- tation of RCRA [to EPA],” Meghrig v. KFC W., Inc., 516 U.S. 479, 483-84 (1996). In doing so, Congress authorized EPA to make scientific policy judgments about when solid or hazardous wastes pose unacceptable risks, and prescribed different standards for citizen suits depending on whether citizens sought to enforce an EPA policy judgment or to sue in the absence of such a judgment. In addition, Congress prescribed a clear hierarchy of environmental risks, and assigned EPA different remedial powers for each type. The decision below makes a hash of this careful scheme. The lower court’s lenient interpretation of the standard renders RCRA’s bifurcation of citizen suits pointless, as it effectively permits citizens to sue to enjoin all msks EPA deems unacceptable, and any other non-imaginary risks. Moreover, the court’s interpretation of “imminent and substantial endangerment” likewise gives no independent meaning to Congress’s specification of three different—and clearly hierarchical—risk standards, treating them instead as inadvertent synonyms. 4 Most importantly, the lower court’s reading undermines EPA’s primacy in policy-making and enforcement. Under the lower court’s lenient interpretation, private citizens can serve as unelected roving policy-makers, free to second guess the judgments of EPA and state environmental agencies. Because the proper interpretation of RCRA’s citizen-suit provision determines whether responsibility for preventing environmental risks rests primarily with the executive branch or is shared equally by private citizens, it is a critically important issue to every entity subject to RCRA. A. The Underlying Dispute. From 1967 to 1982, Mallinckrodt owned and operated a chlor-alkali plant (“the Facility”) that operated along the banks of the Penobscot River in Orrington, Maine. Pet. App. 2a. The Facility used mercury in the chlorine production process and, during the operation of the plant, mercury was released into the water and sediments of the Penobscot. /d. at 2a-3a. Mallinckrodt sold the Facility in 1982. Jd. at 2a. In 1970, the United States sued Mallinckrodt over the discharge of mercury into the Penobscot River from a chemical plant Mallinckrodt owned. Pet. App. 44a. Over the next two decades, a series of federal and state regulatory and enforcement actions reduced mercury discharges and remediated prior discharges. In this effort, EPA invoked its authority under RCRA' and eventually obtained entry of a 1993 consent decree that required a site investigation and corrective measures study. See id. at 3a. Although it no longer owned the plant, Mallinckrodt funded part of the costs ' Under RCRA, EPA may order the owner or operator of a facility that treats, stores or disposes of hazardous waste to abate any release of such waste into the environment and to take such clean-up steps as it “deems necessary to protect human health or the environment.” 42 U.S.C. § 6928(h)(1). EPA need not find, or prove, that the wastes so released pose an “imminent and substantial endangerment” prior to issuing such an administrative order. 5 of complying with the consent decree, and submitted site- investigation reports in 1995 and 1998. See id. at 47a. It also agreed to perform a series of interim clean-up measures at the facility, and committed to dredge mercury-contaminated sediments in the Southern Cove, an area of the River adjacent to the facility. See id. at 41a. In addition, Mallinckrodt later agreed to study downriver environmental conditions, and provided a report to EPA and the Maine Department of Environmental Protection (MDEP) in 2001. Joint Ex. 42, Maine People’s Alliance v. Holtrachem Mfg. Co., 211 F. Supp. 2d 237 (D. Me. 2002) (No. Civ. 00-69-B-C); see also Pet. App. 47a. By the time of trial in this case, these agencies had proposed a set of “media protection standards,” or clean-up levels designed to protect public health and the environment. Tr. Vol. 2-B, at 26-28, 47-48. Among these standards was a proposed maximum mercury concentration for downriver sediment that did not require a downriver clean-up. /d. at 47- 48; see also Pet. App. 47a. Under this proposed standard, only the Southern Cove would require clean-up. Tr. Vol. 2-B, at 47-48; see also Pet. App. 47a. At trial, the EPA and MDEP project managers for the site both testified that they believed that the proposed standards would adequately protect human health and the environment. Tr. Vol. 2-B, at 61; Vol. 3-B, at 76. As the First Circuit acknowledged, had these media protection standards been adopted at the time of trial, no remediation would have been required for the area with which this litigation is concerned. Pet. App. 4a. B. Proceedings And Rulings Below. At the same time that EPA and MDEP requested the downriver study in writing, plaintiffs commenced this suit under RCRA, alleging that mercury discharged from the Facility “may present an imminent and _ substantial endangerment,” 42 U.S.C. § 6972(a)(1)(B). Acknowledging that remediation might prove unnecessary or infeasible, the plaintiffs requested that Mallinckrodt be ordered to fund a 6 study to determine the nature and extent of endangerment. Pet. App. 4a. The plaintiff organizations based their standing on four members, who testified that they had stopped eating fish or shellfish from the Penobscot and had refrained from fishing, swimming, or boating on the Penobscot due to their concerns about mercury levels. Pet. App. 64a-65a. These witnesses did not claim that they had suffered any adverse health effects as a result of such mercury. JAQ113? (Galland); JA0Q129 (Reymore); JA0150 (Woods); JA0066 (Judd). All four, moreover, were aware that Maine had issued a fish consumption advisory that counsels sport fishers to limit or avoid entirely eating fish caught in any water of Maine statewide; they testified that they do not eat any fish from waters covered by that advisory. JA0114 (Galland); JA0130 (Reymore); JA0151 (Woods); JA0065 (Judd). Although the plaintiffs submitted evidence that mercury downriver from the Facility is entering biota and magnifying, plaintiffs’ own expert conceded that he did not know “if there is a problem.” He admitted “[w]le don’t know what the problem is .... [T]he only way to do remediation is to do a proper study, find out if there is a problem, if there is, what it is, and remediate it.” JA0250-51. The district court did not find that a clean-up of the estuary was necessary. Instead, it concluded that the conditions in the Penobscot raised a “reasonable medical concern” and a “reasonable scientific concern,” Pet. App. 62a, and that this is sufficient to establish liability under § 7002(a)(1)(B). The court concluded that solid or hazardous wastes “may present an imminent and substantial endangerment” within the meaning of RCRA if there is “‘some reasonable cause for concern that someone or something may be exposed to risk or ? Citations to the “JA” refer to materials included in the Joint Appendix filed in the First Circuit in Holtrachem Manufacturing Co. v. Maine People’s Alliance, 471 F.3d 277 (ist Cir. 2006) (No. 05-2331). 7 harm.’” Jd. at 54a. Under this interpretation, any risk of harm that is not “‘remote in time, completely speculative in nature, or de minimis in degree’” is sufficient to establish liability. Jd. Based on this vague and extremely lenient standard, the district court found petitioner liable to fund an “independent study to determine if remediation of the conditions existing in the area south of the [Facility] is required and/or feasible and, if so, the precise content of the appropriate remediation plan.” Jd. at 69a. In an accompanying order, the district court required the parties to propose plans for a study to determine the effects of mercury on the Penobscot River and Bay south of the plant site. Pet. App. 69a. After the parties submitted proposed plans, the court issued an order creating a three-person study panel. JA0273-81. The November 25, 2003 order set out a series of questions for the study panel to answer, including: (C) Is any mercury in the Penobscot River/Bay system having significantly adverse effects on populations of organisms in the lower Penobscot River/Bay system? (D) Is any mercury in the Penobscot River/Bay system posing an unacceptable risk to human health? (E) Do the scientific data lead to the conclusion that a mercury remediation program is necessary and feasible to effectively remediate the effects of any such harm caused by mercury contamination in the Penobscot River/Bay system? JA0274-75. On August 10, 2005, the district court entered an order approving the study plan and ordering the study panel to begin implementing the study. Pet. App. 37a-38a. The study plan “is designed to determine the extent of contamination downriver from the [Facility] and whether such contamination endangers human health or the environment.” JA0287 (emphasis added). 8 Petitioner appealed the order authorizing the study plan. Relying on decisions from other circuits, the First Circuit concluded that plaintiffs had Article III standing and that RCRA permits citizen suits so long as there is a “reasonable prospect of future harm . . . so long as the threat is near-term and involves potentially serious harm.” Pet. App. 31a. As to standing, the court held that “probabilistic harms are legally cognizable” if there is “a substantial probability that harm will occur.” Pet. App. 9a, 1la. Based on this standard, the appellate court upheld the district court’s finding that petitioner created a substantial probability of increased harm to the environment and that this increased risk rendered the plaintiffs’ fears reasonable. Jd. at 12a. The First Circuit dismissed petitioner’s argument that when courts base standing on an increased risk of harm that no politically accountable body has deemed unacceptable, courts are improperly relying on what are essentially legislative or political judgments as the predicate for an exercise of judicial power. /d. at 12a-13a. The lower court believed that Congress had made the choice to “create a cause of action for affected citizens notwithstanding the absence of any EPA- sponsored activity,” and that Article III’s requirements had been met /d. at 13a-14a. The First Circuit also upheld the district court’s interpretation of RCRA, finding that the district court “read the statute’s adjectival elements in line with the breadth of the authority granted.” Pet. App. 18a. Turning first to case law construing the liability standard of § 7002 expansively, the Court stated that prior courts had “emphasized the preeminence of the word ‘may’ in defining the degree of risk needed to support RCRA § 7002(a)(1)(B)’s liability standard.” Pet. App. at 17a. Imminence had generally been read to require only that the harm poses a near-term threat; “there is no corollary requirement that the harm necessarily will occur or that the actual damage will manifest itself immediately.” Jd. 9 The Court dismissed the textual and structural problems petitioner identified in this expansive reading. Petitioner argued that, under RCRA’s hierarchy of risks and remedies, “an imminent and substantial endangerment” was the most stringent risk standard, yet the lower court’s lenient interpretation made it impossible to give RCRA’s less stringent risk standards any non-absurd independent meaning. Although the panel admitted that this hierarchy was “not easily disproved,” it dismissed Congress’s handiwork in devising these differing standards as “more a product of fortuity than a product of purposeful legislative initiative.” Pet. App. 23a. The panel also relied on differences in enactment dates to dismiss similarities in statutory terms. When Congress gave EPA authority in § 7003 to sue to enjoin an “imminent and substantial endangerment,” this phrase had already been construed, in other environmental laws, to denote a heightened risk standard. But the panel concluded that the meaning the phrase had when it was added to RCRA was irrelevant. In its view, “the relevant question is how that term was understood in 1984 (when section 7002(a)({1)(B) was enacted).” Pet. App. 20a. REASONS FOR GRANTING THE PETITION The First Circuit’s construction of Article III represents an unwarranted extension of standing doctrine, one that is unsupported by prior decisions of this Court. In reaching its conclusion that the plaintiffs’ fear of future harm was a cognizable injury-in-fact, where suit was brought against a private party that had not violated a regulatory standard and where the possibility of future harm was uncertain, the First Circuit disregarded a core principle of Article III, to “‘identify those disputes which are appropriately resolved through the judicial process,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The decision below will result in 10 overextending the reach of the federal judiciary in a large class of cases, improperly requiring courts to make fundamentally political determinations. In addition, the court’s broad interpretation of RCRA is a fundamental misconstruction of the statute’s text and structure. The breadth of the liability standard enunciated by the First Circuit confers on private citizens an enforcement power co-equal with that of the executive branch, contrary to Congress’s identification of the EPA as the primary enforcer of RCRA. It also renders meaningless Congress’s careful bifurcation of citizen suits and its specification of a hierarchy of three distinct risks, and associated remedies, treating virtually all of these statutory distinctions as the product of congressional sloppiness or inadvertence. Accordingly, the Court should grant the petition and reverse the decision below in order to delineate the proper limits of federal judicial power and to protect the enforcement power entrusted primarily to the executive by Congress. I. WHETHER AND THE EXTENT TO WHICH THE THREAT OF FUTURE HARM CAN GIVE RISE TO STANDING IN THE ABSENCE OF ANY INDEPENDENT AGENCY ACTION IS A RECURRING AND VITAL QUESTION OF CONSTITUTIONAL LAW. This case presents a question that has not yet been resolved by this Court: whether any non-de minimis risk of future harm can suffice as a cognizable injury-in-fact when no politically accountable entity has deemed the risk unacceptable and when plaintiffs are not suing under a statute that gives them the right to judicial review of an agency’s refusal to address a risk of harm. Plaintiffs’ members claim that they are injured by a loss of enjoyment of the Penobscot due to their concerns over mercury levels in the river. It is undisputed that virtually all bodies of water in Maine have some level of mercury and that il there are numerous other sources of mercury in the Penobscot in addition to discharges from the Facility. Thus, plaintiffs’ injury-in-fact consists of their allegedly reasonable medical concern that the discharges from the Facility expose them to an increased probability of harm. This is not a cognizable Article III injury. At the outset, it is essential to recognize that, because “ 15 asking the courts to make the inherently legislative or political judgment that their medical concerns should be deemed reasonable notwithstanding the absence of any agency or governmental action. In other words, they are asking the courts to rule, in the absence of any finding by the expert agency primarily responsible for enforcing the nation’s environmental laws, that the medical and_ scientific uncertainties created by mercury in the Penobscot create an unacceptable increased risk of harm. The First Circuit’s finding of injury-in-fact in these circumstances, therefore, is a significant and unwarranted extension that compels courts to make judgments for which they lack institutional competence and _ constitutional authority.? Indeed, this case illustrates why courts should not make such legislative decisions. The courts below made their own policy judgments about unacceptable risks, then used those judgments to exercise judicial power to compel the type of investigation that EPA would conduct before, not afier, deciding whether a risk is unacceptable. See infra. Thus, while plaintiffs’ expert conceded that “we don’t know if there is a problem,” JA0250, the district court nonetheless decided that plaintiffs’ concerns over mercury in 3 O'Melveny & Myers v. FDIC, 512 U.S. 79, 89 (1994) (weighing and appraising policy considerations is a task “for those who write the laws, rather than for those who interpret them”) (internal quotation marks omitted); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (“[t]he responsibilities for assessing the wisdom of .. . [environmental] policy choices . . . are not judicial ones”); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 647 (1981) (policy choices must be resolved “within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot”) (internal quotation marks omitted); cf. Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (complex decisions that affect the safety or security of the nation “should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility”). 16 the Penobscot were “reasonable” and, based on this policy decision, has now ordered an expensive study to determine whether there is any reality to the injury plaintiffs fear. But it should have been plaintiffs’ burden to show that they have properly invoked the jurisdiction of the federal court. The district court’s order merely confirms that they did not discharge that burden. Review of the decision below is thus necessary to ensure that federal courts respect the limits established by Article III. For this reason, the petition should be granted and the decision below vacated. II. THE PROPER INTERPRETATION OF THE CITIZEN-SUIT PROVISION OF THE RESOURCE CONSERVATION AND RECOVERY ACT IS AN IMPORTANT QUESTION OF FEDERAL LAW. This Court should also review the First Circuit’s erroneous construction of the liability standard of RCRA’s citizen-suit provision. While petitioner acknowledges that there is no split of Circuit Court authority on this issue, the lenient liability standard the First Circuit and others have adopted compels courts to make questionable policy decisions about whether particular risks are unacceptable, and undermines EPA’s policy-making primacy under RCRA. The petition should be granted to address these critically important issues and to restore the balance of authority Congress mandated. A. The Lower Court’s Interpretation Is Inconsistent With The Statute’s Allocation Of Policy-Making And Enforcement Authority. Because the task of determining whether a particular risk of environmental harm is societally unacceptable is an inherently political task calling for normative judgments, Congress assigned “[cjhief responsibility for the implementation of RCRA [to EPA],” Meghrig, 516 U.S. at 483-84. Throughout RCRA, Congress vested EPA with broad authority to issue permits, regulations and orders based 17 on EPA’s policy determinations of what risks to health and the environment are unacceptable. See, e.g., 42 U.S.C. §§ 6922(a), 6923(a), 6924(a), (b), (d), (e), 6925. RCRA’s citizen-suit provisions serve as adjuncts to EPA’s over- arching enforcement role. One such provision authorizes citizens to sue to enforce the policy judgments embodied in EPA permits, rules, regulations or orders without any showing of harm. Jd. § 6972(a)(1)(A), (a)(2). In the absence of such judgments, however, citizens can sue only where they establish that wastes may present an “imminent and substantial endangerment.” Jd. § 6972(a)(1)(B). Interpreting this endangerment standard to require a showing that a grave risk of harm is more likely than not to occur is consistent with Congress’s allocation of responsibility: it ensures that primary policy-making and enforcement authority rests with EPA, that citizens cannot freely second-guess EPA’s policy decisions, and that courts make policy choices only in limited situations, where a risk of grave harm is likely. The First Circuit’s interpretation, however, implausibly treats the phrase “imminent and substantial endangerment” in § 7002(a)(1)(B) as a grant of co-equal policy-making responsibility to judges and private citizens. Citizens can sue, and courts may issue injunctions, based on any increased risk of harm that cannot be deemed de minimis or irrational. Indeed, in this case, plaintiffs and the district court used this provision to second-guess EPA’s actions. EPA ordered the clean-up of the plant and nearby cove, compelled a downriver study and proposed media protection standards that it thought sufficient to protect health and the environment. Tr. Vol. 2-B, at 26-28, 47-48, 61. Plaintiffs deemed this inadequate, and are using § 7002(a)(1)(B) so that they and the district court can decide whether and what more should be done. RCRA’s overall structure and allocation of responsibilities to EPA make clear that Congress did not intend any such result. 18 B. The Decision Below Misconstrues RCRA And Violates Fundamental Rules Of Statutory Interpretation. 1. The First Circuit Failed To Give Meaning To RCRA’s Hierarchy Of Risks And Remedies. Neither the First Circuit nor any other court of appeals that has adopted the lenient interpretation of § 7002(a)(1)(B)’s liability standard has reconciled that standard with RCRA’s — hierarchy of risks and remedies. Under § 3019(b), if EPA finds that a landfill “poses a substantial potential risk to human health,” it may ask another federal entity to conduct a “health assessment.” 42 U.S.C. § 6939a(b)(2) (emphasis added). Under § 3013, if EPA determines that the release of hazardous waste “may present a substantial hazard to human health or the environment,” it may order “monitoring, testing, analysis, or reporting.” Jd. § 6934(a), (d) (emphasis added). And, under § 7003, if EPA determines that hazardous waste “may present an imminent and substantial endangerment to health or the environment,” it may seek injunctive relief. Jd. § 6973(a) (emphasis added). These provisions describe three distinct risk levels—“a substantial potential risk,” “a substantial hazard,” and “an imminent and substantial. endangerment”—and prescribe three distinct remedial responses—a government-funded risk analysis; a government-compelled analysis; and immediate injunctive relief. This graduated scale of risks and responses makes clear that “an imminent and substantial endangerment” is the most significant potential risk, one so grave and likely that it warrants immediate preventive action. Interpreting this highest of risk standards to mean “any risk” that gives rise to a “reasonable medical concern,” however, leads to the absurd conclusion that Congress used the lesser risk standards of “substantial potential risk” and “substantial hazard” to authorize actions based on unreasonable medical concerns. 19 Unable to disprove this hierarchy, the First Circuit simply brushed it off by stating that its interpretation of § 7002 “sives full effect to the ‘imminent and substantial endangerment’ language; it merely eschews the mechanical cross-referencing, not mandated by Congress.” Pet. App. 22a. But, as just noted, that interpretation” of § 7002 does not give any non-absurd meaning to RCRA’s other risk standards. And, giving independent meaning to all three risk standards is not an exercise in “mechanical cross-referencing”; it is the fulfillment of the court’s duty to interpret RCRA as a “symmetrical,” “coherent” and “harmonious whole.” Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995); FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959). Citing King v. St. Vincent's Hospital, 502 U.S. 215, 222 (1991), the First Circuit stated that, “[i]f Congress actually wants a delineated hierarchy of risks and remedies, it will have to say so more distinctly.” Pet. App. 23a-24a. Clear statement rules, however, apply in areas of constitutional concer.’ Congress has no duty to speak “distinctly” when exercising its core constitutional power to create environmental risk standards, and King does not suggest otherwise. Indeed, it is the judiciary that has the duty to harmonize all parts of the statute. That duty, moreover, applies even when provisions are adopted at different times. See 1A Norman J. Singer, Sutherland Statutes and Statutory Construction §§ 22:34, 22:35 (2006) (provisions introduced by amendment “should be read together with . . . the original section . . . as if [both] had been originally enacted as one section. Effect 1s to be given to each part, and they are to be interpreted so that * See Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (clear statement rules apply “““[iJn traditionally sensitive areas, such as legislation affecting the federal balance”’”). See generally William N. Eskridge, Jr. & Philip P. Frickey, Forward: Law as Equilibrium, 108 Harv. L. Rev. 26, 81-82 (1994). 20 they do not conflict.” (footnotes omitted)). To conclude that three separate risk standards are merely inadvertent synonyms adopted by different Congresses, Pet. App. 23a-24a, is a complete abdication of that duty. Here, harmonization is entirely possible: construing “imminent and _ substantial endangerment” to mean a risk of grave harm that is more likely than not to occur gives independent meaning to all of RCRA’s risks standards. Courts simply cannot reject a coherent interpretation that harmonizes all statutory provisions in favor of a reading that fails to give independent meaning to distinct provisions, then attribute the incongruity to congressional sloppiness. Instead, in such circumstances, they must choose the coherent, harmonious reading. 2. The First Circuit’s Interpretation Renders § 7002(a)’s Bifurcation Of Citizen Suits Superfluous. In addition, the First Circuit’s interpretation renders RCRA’s careful bifurcation of citizen suits meaningless. As noted above, Congress authorized citizens to enforce the policy judgments in EPA permits, rules, or regulations without any showing of risk of harm in one provision, 42 U.S.C. § 6972(a)(1)(A), (a)(2), but required citizens to show that wastes “may present an imminent and _ substantial endangerment” when they sue in the absence of such EPA judgments, id. § 6972(a)(1)(B). Under the First Circuit’s interpretation, however, citizens can sue to enjoin (1) all risks EPA deems unacceptable and (2) all other non-de minimis risks. See, e.g., Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) (“‘[i]f there is a big hole in the fence for the big cat, need there be a small hole for the small one?’”). Once again, the First Circuit’s reason for dismissing this problem cannot be squared with cardinal rules of interpre- tation. Because Congress adopted the second category of citizen suits eight years after providing for permit-violation suits, the court below thought it “‘obvious’” that, when Congress ce cut a second hole in the fence, . . . [it] wanted to 21 increase the ease with which cats of all sizes could come through the fence.” Pet. App. 27a. The problem is that Congress did not repeal the first category of suits and replace it with a broad catch-all citizen suit provision. Instead, it simply added a provision, and courts must, if possible, give meaning to both provisions. This is not possible, however, under the First Circuit’s interpretation. That impossibility renders the interpretation invalid; it cannot be brushed aside as mere inadvertence by a later Congress. 3. The Lower Court’s Interpretation Fails To Give The Same Words In Different Parts Of RCRA The Same Meaning. In pre-RCRA environmental statutes, the phrase “‘will endanger” was construed to require a “‘significant risk of harm,” Ethyl Corp. v. EPA, 541 F.2d 1, 20 n.36 (D.C. Cir. 1976) (en banc), and the modifier “‘imminent and substantial’”” was “used . . . to mandate more certain endangerment.” Jd.; see also Reserve Mining Co. v. EPA, 5 14 F.2d 492, 528 (8th Cir. 1975) (en banc) (the phrase “‘[is] endangering” “connotes a lesser risk of harm than the phrase ‘imminent and substantial endangerment”). Thus, when Congress used the words “imminent and substantial endangerment” in § 7003 of RCRA, it presumably “intended them to have the same [stringent] meaning that courts had already given them” in earlier environmental laws. Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 268 (1992). That presumption is confirmed by the legislative history, which described EPA’s right to sue under § 7003 as an “emergency authority.” S. Rep. No. 94-988, at 16-17 (1976). Because “‘identical words used in different parts of the same act are intended to have the same meaning,’” Gustafson, 513 U.S. at 570, the phrase “imminent and substantial endangerment” in § 7002(a)(1)(B) must have the same stringent meaning Congress intended it to have in § 7003. Indeed, “{t]he interrelationship and close proximity of these provisions . . . presents a classic case for application of” this eee 22 presumption, Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (internal quotation marks omitted), which, in such circumstances, can be overcome only by “strong evidence” of a contrary intent. Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 238-39 (1986). The panel’s interpretation of § 7002(a)(1)(B) is flatly inconsistent with these principles. The First Circuit concluded that, although the 1984 Congress that added § 7002(a)(1)(B) to RCRA intended it to operate the same as § 7003, the 1984 Congress understood § 7003 differently than “how Congress viewed 7003 at the time of its original passage,” and the 1984 Congress’s understanding of § 7003 controls the meaning of § 7002(a)(1)(B). Pet. App. 28a; see also id. at 20a. This is not evidence that Congress intended the same words to have different meanings in adjoining provisions. Rather, it is a ruling that the 1984 Congress misunderstood the liability standard an earlier Congress had enacted in § 7003. Because the 1976 Congress’s intent controls the meaning of “substantial and imminent endangerment” in § 7003, the panel’s interpretation leads to the untenable conclusion that identical words in different parts of the same law have different meanings due to congressional inadvertence. Indeed, the untenable nature of the First Circuit’s interpretation is underscored by § 3008(e) of RCRA. This provision, entitled “Knowing Endangerment,” makes it a crime to handle or dispose of hazardous waste in violation of — various permitting or related requirements if the person “knows at that time that he thereby places another person in imminent danger of death or serious bodily injury.” 42 U.S.C. § 6928(e). Because “endangerment” in this provision means a “danger of death or serious bodily injury,” an “imminent and substantial endangerment” cannot mean simply any “reasonable medical concern.” The appellate court below suggested that the “divergent concerns” of criminal provisions made this discrepancy unsurprising. Pet. 23 App. 22a. But criminal laws diverge from civil provisions in their concern with moral culpability, and that concern is addressed by § 3008(e)’s mens rea requirement. Section 3008(e)’s criminal nature, therefore, does not explain the incongruous discrepancy in meaning between the same word in two provisions of the same law. C. The Lower Court’s Error Is An Issue Of Significant National Importance Because It Will Have A Significant Adverse Effect On Industrial Development And Will Interfere With Agency Enforcement Decisions. The First Circuit’s erroneous and expansive reading of RCRA’s citizen-suit provision threatens to undermine the balance between environmental protection and industrial development. Cf. International Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987) (recognizing that certain application of state law against a private party would “upset[] the balance of public and private interests so carefully addressed by the [Clean Water] Act”). Congress has expressly granted the EPA the right to determine safe levels of discharge and has granted citizens the right to bring suit in only two instances: to enforce agency standards or to abate serious risks of grave injury. By allowing citizens to sue for all non-de minimis risks, the First Circuit’s interpretation plainly and impermissibly upsets the legislative choice that EPA should determine appropriate levels of risk, not courts or private parties. Upsetting this balance will skew incentives toward over-deterrence and under-development, thwarting the will of Congress and affecting the Nation’s economy. The expansive reading the lower courts have given RCRA’s citizen-suit provision exposes any business that discharges at all to the risk of a suit whenever citizens are disappointed with the pace of State or EPA progress or whenever there is any concern about a potential future harm. The high risk of litigation in this broad class of cases alters the manner in which businesses evaluate the cost of industrial development 24 and inhibits beneficial production throughout the United States. Businesses must consider a significant risk of facing litigation by private parties, who can sue, even in the absence of any violation of any objective standard. This absence of standards makes it difficult for businesses to discern how to comply with the law; compliance is a roving target, leaving industry to guess at what level of protection is enough. To protect against the possibility of litigation, businesses must over-invest in environmental safeguards. And even that over- investment may not be sufficient. Both protection of the environment and the development of industry are public goods. The expansive interpretation adopted by the lower courts alters the balance between them, inhibiting production. Allowing citizens to sue under such a lenient standard also risks irrational enforcement of RCRA. Citizens are not constrained by the kind of considerations that regulators take into account. Individual citizens generally have one concern: their own protection. Cf. Joseph F. Brodley, Antitrust Standing in Private Merger Cases: Reconciling Private Incentives and Public Enforcement Goals, 94 Mich. L. Rev. 1, 15 (Oct. 1995) (“[P]rivate enforcers, driven by their own self-interest, may deviate from antitrust goals ....”). Single- focused citizens do not consider the costs of that protection, and whether such costs are warranted. Citizens instead generally desire complete safety—something that environmental regulations cannot ensure. Cf. Industrial Union Dept., 448 U.S. at 664 (Burger, C.J., concurring) (“Perfect safety is a chimera... .”). The lack of a balanced consideration of appropriate levels of safety (as opposed to complete safety) will result in irrational enforcement of the Statute, and companies will be forced to over-invest in protection, stymieing beneficial development. Cf. id. (“[R]egulation must not strangle human activity in the search for the impossible.”’). Finally, as this case proves, the judicial intrusion required under the broad statutory reading interferes with federal and 25 state regulation. Such intrusion hinders “the proper functioning of the agency” and “denies the agency an opportunity to correct its own mistakes and apply its expertise.” Cf. FTC v. Standard Oil Co., 449 U.S. 232, 242 (1980). This case amounts to a complaint about what the federal and state regulators should have done. Allowing such a collateral challenge of agency action necessarily interjects judges into the sphere of executive and legislative power. See Chevron U.S.A, Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 865 (1984) (“Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.”). Searching judicial review of administrative action is contrary to clearly established legal principles. See id. at 843-45. The increased number of citizen suits and increased judicial involvement ultimately “may have the effect of misdirecting the EPA’s own enforcement efforts.” See Frank B. Cross, Rethinking Environmental Citizen Suits, 8 Temp. Envtl. L. & Tech. J. 55, 68 (1989). The First Circuit’s broad interpretation of RCRA’s citizen suit provision will have significant and far-reaching affects, stymieing industry and interfering with agency action. * * %*« * In short, the proper interpretation of RCRA’s “imminent and substantial endangerment” standard is a profoundly important question of federal law. The lower court's erroneous interpretation undermines EPA’s enforcement and policy-making primacy under RCRA, and forces courts to make essentially legislative decisions about whether environmental risks are societally acceptable. Courts have neither the institutional aptitude nor constitutional responsibility to make such judgments, and the text and structure of RCRA make unmistakably clear that Congress did not confer such authority on them. The Court should grant the petition to address these critically important issues. 26 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, J. ANDREW SCHLICKMAN CARTER G. PHILLIPS* JOHN M. HEYDE JOSEPH R. GUERRA SIDLEY AUSTIN LLP NORINA I. EDELMAN One South Dearborn SIDLEY AUSTIN LLP Chicago, IL 60603 | 1501 K Street, N.W. (312) 853-7000 Washington, D.C. 20005 (202) 736-8000 Counsel for Petitioner May 16, 2007 * Counsel of Record APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS FIRST CIRCUIT No. 05-2331 MAINE PEOPLE’S ALLIANCE and NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs, Appellees, Vv. MALLINCKRODT, INC., Defendant, Appellant. Heard Oct. 5, 2006 Decided Dec. 22, 2006 Before’ SELYA and HOWARD, Circuit Judges, and SMITH,” District Judge. SELYA, Circuit Judge. In the teeth of two decades of contrary precedent from four circuits, defendant-appellant Mallinckrodt, Inc. asks us to restrict the role of private citizens in the abatement of imminent and substantial threats to the environment and public health. In support of this entreaty, Mallinckrodt pre- sents a gallimaufry of new, hitherto unconsidered arguments. After careful consideration of this asseverational array, we conclude that our sister circuits have adroitly distilled the meaning of section 7002(a)(1)(B) of the Resource Conserva- tion and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B)— the so-called citizen suit provision. Correctly interpreted, this provision allows citizen suits when there is a reasonable * Of the District of Rhode Island, sitting by designation. 2a prospect that a serious, near-term threat to human health or the environment exists.’ In such situations, the provision permits remedies consistent with the scope of a district court’s equitable discretion. The district court read the statute in this manner and faithfully applied the law to the facts. Its supportable liability finding, coupled with a choice of remedy that comes within the encincture of its discretion, leads us to reject Mal- linckrodt’s appeal. I. BACKGROUND We rehearse here only those facts that are directly relevant to the issues on appeal, referring readers who hunger for more information to the district court’s initial opinion. See Me. People’s Alliance v. HoltraChem Mfg. Co., 211 F.Supp.2d 237 (D.Me.2002). This narrative credits the factual findings of the district court to the extent that those findings are not clearly erroneous. See Fed. Refinance Co. v. Klock, 352 F.3d 16, 27 (1st Cir.2003). From 1967 to 1982, Mallinckrodt, then called International Minerals and Chemicals Corporation, owned and operated a chlor-alkali plant (the Plant) situated on the banks of the Penobscot River in Orrington, Maine. Thereafter, the Plant continued operations under other owners, namely, Hanlin Group, Inc. and HoltraChem Manufacturing Co.,” until it closed in 2000. During the period of its operation, the Plant ' We use the phrase “near-term threat” advisedly. It is the threat that must be close at hand, even if the perceived harm is not. For example, if there is a reasonable prospect that a carcinogen released into the envir- onment today may cause cancer twenty years hence, the threat is near- term even though the perceived harm will only occur in the distant future. ? Hanlin Group declared bankruptcy in 1991 and was never named as a defendant in this action. HoltraChem dissolved in 2001 and, although originally a party, did not participate in the critical district court proceedings. 3a deposited tons of mercury-laden waste into the Penobscot River. See Me. People’s Alliance, 211 F.Supp.2d at 253. While there have been a number of other significant con- tributors to mercury in the Penobscot, “Mallinckrodt has been a dominant source.” Jd. at 255. In 1986, the Plant’s continuous release of mercury led the Environmental Protection Agency (EPA) to file an admin- istrative RCRA action against Hanlin (the Plant’s quondam owner). That action resulted in an agreement for corrective _ measures. Deeming turnabout fair play, Hanlin sued Mal- linckrodt for contribution. In a 1991 settlement, Mallinckrodt agreed to pay a portion of the compliance costs imposed by the agreement. A subsequent enforcement action led to a 1993 consent decree that superseded the earlier agreement. Although not a party to this consent decree, Mallinckrodt, consistent with the Hanlin settlement, paid its share of the compliance costs and participated in ongoing negotiations with government regu- lators.” That included working with both EPA and Maine’s Department of Environmental Protection (MDEP). The 1993 consent decree contemplated a wipartite process comprising site investigation, evaluation of possible correc- tive measures, and remediation. In line with the first phase of this process, Mallinckrodt compiled and submitted a site investigation report. In March of 1997, EPA and MDEP, acting in concert, issued a draft notice of disapproval. Mal- linckrodt countered with a supplemental site investigation report but, in 2000, EPA and MDEP again disapproved. Among other things, the regulators instructed Mallinckrodt to study the effects of mercury downriver from the Plant. 3 HoltraChem was inveived with Mallinckrodt in much of the pretrial activity. For ease of exposition, however, we henceforth will refer to the Plant owners collectively as “Mallinckrodt.” This rhetorical device has no bearing on the outcome of this appeal. 4a Within a matter of months, Mallinckrodt commissioned a study aimed at examining downriver mercury contamination. It conducted a second downriver study during the summer of 2001. Notwithstanding the submission of these studies, how- ever, the district court supportably found that Mallinckrodt made only minimal efforts to pursue the designated line of inquiry and that the decision to forgo more vigorous efforts was deliberate. Jd. at 244 & n. 9. In the midst of this sparring, two environmental groups— the National Resources Defense Council and the Maine People’s Alliance—joined forces to commence a citizen suit under RCRA § 7002(a)(1)(B). The plaintiffs alleged that mercury contamination downriver from the Plant “may present an imminent and substantial endangerment to health or the environment.” Acknowledging the possibility that remediation might eventually prove to be either unnecessary or infeasible, their principal prayer for relief was that Mallinckrodt be ordered to fund an “independent, compre- hensive, scientific study to determine the precise nature and extent of the endangerment.” Mallinckrodt tried on several occasions to derail the suit on the ground that EPA, not the courts, had primary jurisdiction. The district court demurred, holding that the suit would not present any conflict with agency action due to EPA’s ap- parent lack of interest in the lower Penobscot. The case was reached for trial in March of 2002. By that time, EPA and MDEP had made public, but had not adopted, preliminary media protection standards, potentially applicable to the lower Penobscot. Had those standards gone into effect, no remediation would have been required for the region with which this litigation is concerned. iii 5a During a nine-day bench trial,’ one of the plaintiffs’ principal experts was Dr. Robert Livingston. The district court found Livingston, an aquatic biologist, to be “partic- ularly credible and persuasive.” Jd. at 251. Drawing on three main sources—the data gathered under the EPA-ordered site studies, some limited field work, and the scientific lit- erature concerning mercury in aquatic systems—Livingston opined that there might be a serious endangerment to both human health and the environment resulting from mercury contamination in the lower Penobscot. Although believing it “highly likely” that these harms would prove to be both real and severe, he cautioned that he had not yet “done the right research to determine that.” Due to the absence of sufficient research, no one could know with certitude “if there is a problem” or “what the problem is.” When all was said and done, however, he thought it “highly likely” that localized and targeted remediation would be both necessary and desirable. The plaintiffs also adduced testimony from other experts, from individuals within their respective memberships, and from EPA and MDEP representatives. A number of defense experts testified as well. After both sides had rested and submitted briefs, the district court issued a thoughtful rescript. The court found that mercury in aquatic systems is susceptible to being transformed by microscopic organisms into its organic form (known as methylmercury). Jd. at 244. “ We need not recount the trial testimony in endless detail. The critical facts are laid out in the district court’s rescript. Even though many of the facts are undisputed, the parties have woven them into widely dissimilar tapestries. On the plaintiffs’ telling, Mallinckrodt is an unrepentant polluter, which consistently flouted governmental enforcement efforts and finally wore down the regulators. On Mallinckrodt’s telling, the plaintiffs are overzealous environmentalists attempting an end run around the reasoned policymaking of an Executive Branch agency. These pejorative portrayals do little to aid the resolution of the issues before us. er ee en ne ee 6a Methylmercury is a highly toxic substance which, even in low dosages, is inimical to human health; for example, it “attacks the nervous system, the kidneys, the immune system, and the reproductive system” and is especially damaging to a de- veloping fetus. Jd. at 245. Methylmercury is especially pernicious because it is the most bioavailable form of mercury and therefore, is readily accumulated in humans and animals alike. Jd. at 244. Next, the court found that mercury concentration in sediments extracted from the lower Penobscot runs five times higher than in the Kennebec River (which Mallinckrodt’s expert identified as an appropriate comparator). Jd. at 248. Despite this high concentration, the court wisely recognized that “the mere presence of mercury contaminated sediments is alone not enough to constitute an imminent and substantial endangerment,” id., so it proceeded to examine the available data concerning mercury contamination in various species in the lower Penobscot, including benthos, killfish (minnows), lobsters, blue mussels, cormorants, osprey, and eagles. This examination led the court to conclude that “mercury is methylating downriver” and that “methylmercury is bioavail- able, entering biota, and biomagnifying throughout the food web.” Id. at 251. The court expressed heightened concern about a region known as Frankfort Flats, which displayed extraordinarily high mercury readings in both sediments and biota. Jd. at 252. Frankfort Flats receives drainage from a marsh system, and marshes are considered to be hotbeds of methylation. See id. When the district court turned to the legal standard for citizen suits under RCRA § 7002(a)(1)(B), it characterized that standard as “lenient.” 211 F.Supp.2d at 246. It cited with approval case law emphasizing that RCRA allows such a suit when the putative polluter “may” have caused an im- minent and substantial endangerment. Jd. at 246-47 (collect- 7a ing cases). On this basis, the court concluded that the statute’s “imminent and substantial endangerment” standard would be satisfied by a “reasonable medical concern for public health and a reasonable scientific concern for the environment.” Jd. at 252. Applying this interpretation of the statute to the facts as found, the court determined that Mallinckrodt’s disposal activities may have created an imminent and substantial danger and that, therefore, the plaintiffs had carried their burden of proof anent liability. Jd. at 251-52. Then, having found liability, the court directed the parties to make a good- faith effort to agree on a study plan. Jd. at 256. The parties complied and, on August 10, 2005, the court approved a plan which, if carried out, probably will require Mallinckrodt to spend around $4,000,000 for laboratory analyses, indepen- dent of all other costs. The purpose of the study is to learn whether, in actuality, mercury contamination in the lower Penobscot adversely affects either human health or the envir- onment, and if so, to devise a feasible remedial approach. Mallinckrodt now appeals, asserting that the plaintiffs lacked standing to sue in the first place; that the lower court set the bar too low for RCRA citizen suits; and that, in all events, the court abused its discretion in fashioning relief. We address these assertions one by one. Il. STANDING As a threshold matter, Mallinckrodt alleges that the plaintiffs lack standing to sue because they have not suffered an injury in fact.? The existence vel non of standing is a legal 5 Mallinckrodt also makes a weak argument that the claimed injury — cannot be redressed by the relief requested. This argument focuses on the uncertainty attendant to the study’s outcome (for example, the study may find that there is no endangerment or, if endangerment exists, that it cannot be rectified). But even in the absence of a demonstrated need for remediation, the information that the study will provide is adequate 8a question and, therefore, engenders de novo review. See N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (ist Cir.1996). When, however, the trial court’s standing determination rests on findings of fact, we must honor those factual findings unless they are clearly erroneous. See Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (Sth Cir.2002). We start our inquiry into standing with the undisputed fact that both of the plaintiffs are associations. In order to ground a claim of associational standing (that is, standing to bring suit on behalf of its membership), an association must show three things: (i) that individual members would have stand- ing to sue in their own right; (ii) that the interests at Stake are related to the organization’s core purposes; and (iii) that both the asserted claim and the requested relief can be adjudicated without the participation of individual members as named plaintiffs. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The plaintiffs in this case plainly have made the latter two showings. Hence, the inquiry reduces to whether the organizations’ individual members would have had stand- ing to proceed in their own right. Because there is nothing in RCRA’s text or history that suggests a congressional intent to erect statutory standing barriers beyond those imposed by Article III of the Con- stitution and because Mallinckrodt has not identified any prudential standing concerns, we focus on what is essential to establish Article III standing. Those requirements are expressed in a familiar three-part algorithm: a would-be plaintiff must demonstrate a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendant’s actions, and a likelihood redress because it will allow the plaintiffs to tailor their behavior to the actual condition of the lower Penobscot. Consequently, Mallinckrodt’s redressability argument is untenable. 9a that prevailing in the action will afford some redress for the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Pagan v. Calderon, 448 F.3d 16, 27 (ist Cir.2006). These requisites must be proved “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. When, as now, standing is reviewed after trial, the facts establishing standing “must be supported adequately by the evidence adduced at trial.” Jd. (internal quotation marks omitted). The ultimate quotient of proof is a preponderance of the evidence. See Perry v. Vill. of Arling- ton Heights, 186 F.3d 826, 829 (7th Cir.1999). We first dispose of an argument that verges on the spec- ious. Mallinckrodt protests that the plaintiffs cannot have established a cognizable injury since the district court thought it appropriate to order a remedy—the study—that would determine whether mercury in the Penobscot is “having significant adverse effects” on the environment or “posing an unacceptable risk to human health.” This protestation con- flates the district court’s finding of liability with its choice of remedy. As we shortly shall explain, probabilistic harms are legally cognizable, and the district court made a support- able finding that a sufficient probability of harm exists to satisfy the Article III standing inquiry. See Me. People’s Alliance, 211 F.Supp.2d at 253. The fact that the court chose a remedy that aspires to furnish a degree of determinacy before fashioning further relief speaks only to the court’s cautious use of discretion in selecting remedies; it does not speak to the plaintiffs’ standing as of the present time. Having dispatched this attempted sleight of hand, we proceed to more serious matters. Mallinckrodt concentrates its standing attack on the plaintiffs’ ostensible failure to prove the injury-in-fact component. At trial, the plaintiffs called four witnesses from within their respective memberships, all of whom reside on or near the banks of the Penobscot River. 10a All four vouchsafed that they have modified their behavior due to fear of mercury contamination. Although eager to do so, none of them will eat fish or shellfish from the river nor recreate on or near it. One witness added that, but for the mercury contamination, she would harvest mussels and sell them to supplement her income. The district court credited this testimony. Jd. Plaintiffs in environmental suits may predicate claims of injury on aesthetic or recreational harms. See Laidlaw, 528 USS. at 183, 120 S.Ct. 693; Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir.2001). Still, neither a bald assertion of such a harm nor a purely subjective fear that an environmental hazard may have been created is enough to ground standing. Rather, an individual’s decision to deny herself aesthetic or recreational pleasures based on concern about pollution will constitute a cognizable injury only when the concern is premised upon a realistic threat. See Laidlaw, 528 U.S. at 184, 120 S.Ct. 693; see also City of Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (explaining that “the reality of the threat . . . , not the plaintiff's subjective apprehensions,” con- stitutes the cognizable injury). In this instance, Mallinckrodt exhorts us to find that the witnesses’ stated fears are unreasonable. It points out—and the record confirms—that waterways throughout Maine suffer to some extent from mercury pollution and that, therefore, it is responsible at most for a probabilistic increase in a risk that the witnesses would in any event have had to run. There is some confusion as to the thrust of Mallinckrodt’s argument. The plaintiffs read its brief, not implausibly, as arguing that these facts necessarily limit cognizable injuries to identifiable medical concerns. See Appellees’ Br. at 54. Mallinckrodt’s reply brief, however, acknowledges that the plaintiffs’ principal claim of injury is for diminished enjoy- lla ment of their environment and joins issue on the sufficiency of the proof in that regard. See Appellant’s Reply Br. at 25. At bottom, this argument suggests that the plaintiffs must show that Mallinckrodt’s activities created a significantly increased risk of h&rm to health or the environment so as to make it objectively reasonable for the plaintiffs’ members to deny themselves aesthetic and recreational use of the river. To establish an injury in fact based on a probabilistic harm, a plaintiff must show that there is a substantial probability that harm will occur. See Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Adams v. Watson, 10 F.3d 915, 923 (1st Cir.1993). Mallinckrodt sug- gests that the instant plaintiffs have not demonstrated a sufficiently probable increase in harm because of (i) Dr. Livingston’s admitted uncertainty about whether any problem exists and (ii) the notion that politically accountable branches of government, not courts, are the appropriate entities to make judgments as to what risks are acceptable in modern society. Neither suggestion is convincing. Mallinckrodt’s first suggestion relies ultimately on a single snippet of Dr. Livingston’s testimony, wrested from its contextual moorings. But a trial court, confronted with a complex and highly ramified factual situation, is fully entitled to consider the import of a witness’s testimony as a whole. This case is a good example: Dr. Livingston testified, in effect, that the presence of a great deal of smoke justified looking for a fire. Mallinckrodt excerpts only his isolated statement that he had not actually seen a fire yet. This plucking of the record overlooks the obvious fact that the district court, drawing on the whole of Dr. Livingston’s tes- timony as well as a plethora of other evidence, supportably concluded that “mercury is methylating downriver, and that such methylmercury is bioavailable, entering biota, and biomagnifying throughout the food web” in sufficient quan- tity that it may well present an imminent and substantial 12a danger to the environment. Me. People’s Alliance, 211 F.Supp.2d at 251 (citation omitted). Relatedly, the court found that “the effects resulting from methylmercury ex- posure . . . clearly endanger reproduction, development, and overall health of the public and the environment,” id. at 252, and that “Mallinckrodt has been a dominant source of mercury in the Penobscot River,” id. at 255. In other words—to return to our metaphor—the lower court discerned telltale signs that a fire might already be smoldering. In light of its warrantable findings, the court had ample reason to conclude that 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. Mallinckrodt’s second suggestion is nothing less than a no- holds-barred assault on the federal courts’ institutional com- petency. It emphasizes that the plaintiffs allege no violation of any federally prescribed discharge limits, and then treats this omission as dispositive. See Appellant’s Br. at 27 (asserting that “in the absence of any finding by [EPA],” courts are not equipped to determine whether “the medical and scientific uncertainties created by mercury in the Penob- scot create an unacceptable increased risk of harm” (em- phasis in original)). This postulate proceeds from a two-part premise. First, in terms of environmental regulation—where important policy tradeoffs must be made between protection and progress—the only injuries that satisfy the criteria for Article III standing are those injuries that are “unacceptable”; and second, the political branches alone, not courts, have the expertise and accountability to determine which injuries society must be prepared to tolerate. In Mallinckrodt’s view, this need to restrict cognizable injuries to “unacceptable” injuries is 13a especially acute where, as in this case, the asserted harms are probabilistic. Mallinckrodt provides scant authority for an argument that has such breathtaking ramifications for the scope of judicial power. Its notion of acceptability is apparently derived from a single, quarter-century-old opinion, in which a respected court cautioned that judges cannot “formulate policy with respect to what [environmental] risks are acceptable.” Envil. Def. Fund v. EPA, 598 F.2d 62, 83-84 (D.C.Cir.1978). That court, however, was reviewing a challenge to an EPA regu- lation based on an alleged lack of substantial evidence. There is no discussion either of standing or of Article III’s limits on judicial power. The opinion, therefore, affords no solid foundation for the proposition that Mallinckrodt asserts.° In a related vein, Mallinckrodt argues that a grant of stand- ing in this case would be tantamount to judicial usurpation of regulatory authority because it would permit “private parties to attack EPA risk assessments collaterally, using the very risks EPA deemed acceptable to establish standing and lia- bility, with no deference afforded to EPA’s policy judgment.” Appellant’s Reply Br. at 27-28. But the ingredients that comprise what Mallinckrodt sees as a recipe for disaster—the relatively broad scope of citizens’ rights to sue polluters, the existence of liability in such suits, and the. less-than-total deference afforded to agency inaction—all turn on legislative choices. Congress has elected to create a cause of action for affected citizens notwithstanding the absence of any EPA- sponsored standard. While we share Mallinckrodt’s belief that it would be a usurpation of legislative prerogative for a court to assume policymaking control over environmental 6 Mallinckrodt’s other citations—National Lime Ass’n v. EPA, 627 F.2d 416, 433 n. 48 (D.C.Cir.1980), and Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 662-63, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (Burger, C.J., concurring)—likewise concern judi- cial review of agency regulations. They too are inapposite. l4a regulation, it would be no less offensive a usurpation for a court to refuse to undertake a task validly entrusted to it by Congress. In the last analysis, Article III requires a cog- nizable injury; it does not speak to the wisdom of the legislature’s actions in providing redress for that injury. We add an eschatocol of sorts. In rejecting Mallinckrodt’s arguments as to standing, we remain confident that Congress has not asked federal courts to perform tasks that are beyond their institutional competency. In our view, courts are cap- able of assessing probabilistic injuries. Moreover, nuisance principles contribute heavily to the doctrinal template that underbraces statutes like RCRA, see, e.g., Cox v. City of Dallas, 256 F.3d 281, 289 (Sth Cir.2001), and the tasks involved in adjudicating environmental cases are well within the federal courts’ accustomed domain. While courts can (and do) benefit from available agency expertise, it is an insupportable leap of logic to maintain that, in the absence of such input, claims of injury are not cognizable at all. That ends this aspect of the matter. For the reasons discussed above, we hold that the plaintiffs have standing to sue under RCRA § 7002(a)(1)(B). We turn, then, to the meat of the appeal. Ill. THE MERITS This case revolves around the meaning and purport of RCRA § 7002(a)(1)(B), a statute that, as described above, allows citizens to sue persons or firms whose handling of solid or hazardous waste “may present an imminent and substantial endangerment to health or the environment.” /d. The district court read this language as meaning that such suits could be brought to alleviate reasonable medical or scientific concerns. Me. People’s Alliance, 211 F.Supp.2d at 252. Mallinckrodt urges a more circumscribed interpretation. To the extent that this interpretive controversy presents a 15a question of statutory construction, we afford de novo review.’ See Lattab yv. Ashcroft, 384 F.3d 8,21 (1st Cir.2004). An historical perspective illustrates the strength of the current against which Mallinckrodt is swimming. Congress enacted RCRA in 1976, Pub.L. No. 94-580, 90 Stat. 2795, with the avowed intention of closing “the last remaining loophole in environmental law, that of unregulated land dis- posal of discarded materials and hazardous waste.” H.R.Rep. No. 94-1491, pt. 1, at 4, reprinted in 1976 U.S.C.C.A.N. 6238, 6241. In its original iteration, RCRA § 7002 (now codified in pertinent part at 42 U.S.C. § 6972(a)(1)(A)) offered citizens the opportunity to bring suit against a polluter only when the polluter was alleged to be in violation of a permit, standard, regulation, condition, requirement, or order issued by EPA. At the same time, RCRA created a cause of action, available exclusively to the EPA Administrator, for cases in which the “disposal of any solid waste or hazardous waste is presenting an imminent and substantial endanger- ment to health or the environment.” RCRA § 7003 (codified as amended at 42 U.S.C. § 6973(a)). In suits brought under this latter provision, federal district courts were granted broad remedial authority to “restrain” polluters and take “such other action as may be necessary.” Jd. Pertinently we think, Congress later loosened the standard for liability under section 7003. This transpired four years later when Congress passed the Solid Waste Disposal Act Amendments of 1980. That legislation amended section 7003 by substituting the words “may present” for the words “is presenting.” Pub.L. No. 96-482, § 25, 94 Stat. 2334, 2348. 7 Mallinckrodt has pitched this aspect of its appeal exclusively in terms of statutory construction. Had it challenged the district court’s application of the law to the facts, our review would have been more deferential. See, e.g., Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 254 (3d Cir.2005) (advocating “clear error” review). l6a In United States v. Price, 688 F.2d 204 (3d Cir.1982), a samira’ RORA § ANS case, 2 district’ court’ found’ that a landfill leaking toxic substances posed an imminent and substantial danger to Atlantic City’s water supply but refused to order a study of this hazard at the preliminary injunction stage. Id. at 209. The Third Circuit reversed, ruling that the use of the word “may” in RCRA § 7003 was intended to make the provision “expansive.” Jd. at 213. In its view, “Congress, by enacting section 7003, intended to confer upon courts the authority to grant affirmative equitable relief to the — extent necessary to eliminate any risks posed by toxic waste.” Id. at 214. Soon thereafter, Congress passed the Hazardous and Solid Waste Amendments of 1984 (1984 amendments), Pub.L. No. 98-616, 98 Stat. 3221. The 1984 amendments introduced a new provision, RCRA § 7002(a)(1)(B), into the statutory scheme. Using language that tracked the post-1980 text of RCRA § 7003, this new provision extended to citizens the right to sue a polluter who may be causing an imminent and substantial endangerment to public health or the environment. Id. § 401, 98 Stat. at 3268-69. The Senate Report that accompanied the 1984 amendments approvingly cited and quoted Price on several occasions, specifically endorsing that court’s conclusion that section 7003 is intended to give courts the tools to “eliminate any risks posed by toxic waste.” S.Rep. No. 98-284, at 59 (1983). Around this same time, the Fourth Circuit decided another RCRA § 7003 case, in which it flatly rejected the proposition that “section 7003 was designed to control pollution only in emergency situations.” United States v. Waste Indus., Inc., 734 F.2d 159, 165 (4th Cir.1984). The court emphasized the Statute’s use of the word “may” and cited Price w»provingly. Price and Waste Industries have become guideposts for courts endeavoring to interpret the counterpart language con- tained in RCRA § 7002(a)(1)(B). To date, at least four of our 17a sister circuits have construed that provision expansively. See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 258-59 (3d Cir.2005); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir.2004); Cox, 256 F.3d at 299; Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir.1991), rev'd in part on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). In taking this position, all four courts have emphasized the preeminence of the word “may” in defining the degree of risk needed to support RCRA § 7002(a)(1)(B)’s liability standard. This expansiveness in construing the requisite degree of risk has largely been matched in the courts’ assessment of the gravity and immediacy of the threatened harm. With one possible exception, the courts have agreed that the word “substantial” implies serious harm.® See, e.g., Parker, 386 F.3d at 1015. There has, however, been some reluctance to quantify the needed level of harm more precisely. See, e.g., Honeywell, 399 F.3d at 259. Imminence generally has been read to require only that the harm is of a kind that poses a near-term threat; there is no corollary requirement that the harm necessarily will occur or that the actual damage will manifest itself immediately. See Cox, 256 F.3d at 299-300. Mallinckrodt argues that this long line of cases has con- sistently misread Price (which, Mallinckrodt says, only con- cerned remedial power, not scope of liability) and, in the bargain, has disregarded the strictures imposed by the adjec- tives “imminent” and “substantial.” We have not had occa- sion to construe the reach of the citizen suit provision contained in RCRA § 7002(a)(1)(B), and we are obligated to offer our independent judgment on an issue of first impres- sion here (which, as we shortly shall explain, coincides with ® The possible exception is the Second Circuit, which, to date, has not committed to read into the statute a requirement of seriousness. See Dague, 935 F.2d at 1355-56. 18a the result reached by the other courts of appeals that have confronted the question). Accordingly, we proceed to test the mettle of the conventional construction of RCRA § 7002(a)(1)(B) against Mallinckrodt’s challenge. The district court, following the interpretive trail blazed by the four above-mentioned courts of appeals, employed the conventional construction. It began by noting that the word “endangerment” does not imply actual harm but, rather, implies only potential harm. Me. People’s Alliance, 211 F.Supp.2d at 246. The court then noted that the statutory standard is further relaxed because of Congress’s use of the word “may.” Jd. As a result, the court found RCRA § 7002(a)(1)(B) to be a “sweeping provision indicat[ing] Congress’s intent ‘to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic waste.’” Jd. at 246-47 (quoting Dague, 935 F.2d at 1355 (quoting Price, 688 F.2d at 214) (emphasis supplied in Dague )). The court read the statute’s adjectival elements in line with the breadth of the authority granted. It found that the word “imminent” connotes only that the “factors giving rise to [the harm] are present, even though the harm may not be realized for some time.” Jd. at 247. Relatedly, the court found that the word “substantial” connotes no more than “reasonable cause for concern that someone or something may be ex- posed” to harm. Jd. (quoting Raymond K. Hoxsie Real Estate Trust v. Exxon Educ. Found., 81 F.Supp.2d 359, 366 (D.R.1.2000) (internal quotation marks omitted)). A “reason- able medical concern” would, the court said, be sufficient to ground liability under the statute. Jd. at 252. The court’s only explicit limitation on the availability of relief was when “the risk of harm is remote in time, completely speculative in nature, or de minimis in degree.” Jd. at 247 (quoting United States v. Reilly Tar & Chem. Corp., 546 F.Supp. 1100, 1109 (D.Minn.1982)). Mallinckrodt balks at this interpretation of 19a RCRA § 7002(a)(1)(B) for a host of reasons. It argues that this construction ignores the plain meaning of the phrase “imminent and substantial endangerment,” does violence to the internal coherence of RCRA by overlooking the hierarchy of standards contained within that statute, tampers with Congress’s wise delegation of policymaking to an expert agency, and frustrates congressional intent. We address each of these criticisms in turn. Mallinckrodt’s textual argument rests on the premise that the courts that heretofore have explicated section 7002(a) (1)(B)’s liability standard have been blinded by the glare of the word “may” and have lost sight of the plain meaning of the words “imminent and substantial.” In Mallinckrodt’s view, the phrase “may present an imminent and substantial endangerment,” when read as a whole, requires a risk of grave harm that is more likely than not to occur. Mal- linckrodt deduces this construction from a Rosetta Stone that is part case law and part lexicography. The word “endangerment,” Mallinckrodt says somewhat tautologically, is “the state of being placed in danger.” Webster’s Third New International Dictionary 748 (1993). In that connection, it defines danger as “exposed to harm” or “peril.” Jd. at 573 (excess capitalization omitted). To elucidate the meaning of “may,” Mallinckrodt points to a sixty-year old Supreme Court decision that defines “may,” as used in section 2(a) of the Clayton Act, as “probably.” Corn Prods. Refining Co. v. FTC, 324 U.S. 726, 738, 65 S.Ct. 961, 89 L.Ed. 1320 (1945). Finally, to give content to the phrase “imminent and substantial,” Mallinckrodt invokes case law suggesting that, in other environmental contexts, the un- adorned word “endanger” implies a lower standard than that denoted by the phrase “imminent and substantial endanger- ment.” See Ethyl Corp. v. EPA, 541 F.2d 1, 20 n. 36 (D.C.Cir.1976) (en banc); Reserve Mining Co. v. EPA, 514 F.2d 492, 528 (8th Cir.1975) (en banc). 20a Mallinckrodt’s textual argument makes sense—but only to a point. While the decisions in Ethyl Corp. and Reserve Mining are some evidence that, as of 1976, the phrase “im- minent and substantial endangerment” was thought to denote a heightened standard,” the relevant question is how that term was understood in 1984 (when section 7002(a)(1)(B) was enacted). The Senate Report on the 1984 amendments defines the word “endangerment” separately from the phrase “imminent and substantial.” See S.Rep. No. 98-284, supra, at 59. Mallinckrodt’s criticism fails to account either for that circumstance or for Congress’s insertion, in 1980, of the word “may” into section 7003 and its subsequent use in section 7002. That word does not appear at all in the statute considered in Reserve Mining, 514 F.2d at 528 & n. 70 (citing 33 U.S.C. § 1364). In Ethyl Corp., one of the referenced statutes does use the word “may,” but that court did not parse the entire sentence and looked only to the words “imminent and substantial.” See Ethyl Corp., 541 F.2d at 20 n. 36 (citing 42 U.S.C. § 300i). We also note that statutes referenced in Ethyl Corp. and Reserve Mining bore the subtitle “Emergency Powers”; in contrast, neither section 7002 nor section 7003 carry such a label. The sockdolager, we think, is that “words are like chame- leons; they frequently have different shades of meaning depending upon the circumstances.” United States v. Ro- main, 393 F.3d 63, 74 (ist Cir.2004). The terrain of the Clayton Act and provisions specifically classified as con- ferring emergency powers are sufficiently distinct in subject ? Mallinckrodt is correct in noting that the district court, which cited both Ethyl Corp. and Reserve Mining, see Me. People’s Alliance, 211 F.Supp.2d at 246, failed to acknowledge that those cases were defining the term “endangerment” in contrast with “imminent and substantial endangerment.” This observation may weaken the persuasive power of the district court’s reasoning, but it hardly answers the definitional question. : 2la matter from RCRA’s terrain. Thus, we are unprepared to say that the nuances attached to the phrase “may present an imminent and substantial endangerment” by judicial decisions in those other contexts should be transplanted root and branch into the differently textured soil of RCRA § 7002(a)(1)(B)—a statute enacted by a different Congress at a different time for a different purpose. We conclude, therefore, that Mal- linckrodt’s textual argument does not carry the day: the interpretive question before us cannot be resolved favorably to Mallinckrodt on the basis of plain meaning alone. Mallinckrodt next argues that the conventional interpre- tation of section 7002(a)(1)(B) drains the phrase “imminent and substantial” of any meaning because RCRA already defines “hazardous waste” as material that will cause an increase in mortality or serious illness or “pose a substantial present or potential hazard to human health or the environ- ment.” 42 U.S.C. § 6903(5). Thus, any release of hazardous waste would satisfy the conventional construction of RCRA § 7002(a)(1)(B), and the requirement that such a release create an “imminent and substantial endangerment” would be superfluous. This argument is easily dispatched. In terms, section 7002(a)(1)(B) applies to both solid waste and hazardous waste. RCRA’s definition of “solid waste” does not share the same characteristics as its definition of “hazardous waste,” so to that extent the phrase “imminent and substantial” retains an independent meaning. Relatedly, Mallinckrodt asserts that the conventional inter- pretation of “imminent and substantial endangerment” over- looks RCRA’s commitment to a hierarchy of risks in which “imminent and substantial endangerment” ranks at or near the top. This argument builds on the idea that Congress em- ployed relatively lenient risk standards elsewhere in RCRA. See, e.g., RCRA § 4004(a), codified at 42 U.S.C. § 6944(a) (providing that sanitary landfills must have “no reasonable 22a probability of adverse effects on health or the environment”). Correspondingly, the word “endangerment” is used in other contexts in connection with “imminent danger of death or serious bodily injury.” See, e.g., RCRA § 3008(e), codified at 42 U.S.C. § 6928(e) (defining the crime of “knowing endan- germent”). Thus, the decision to require an “imminent and substantial endangerment” must signify a special, harder-to- achieve benchmark. This argument has some superficial appeal. After all, it is a cardinal rule that courts should strive to interpret statutes as a whole and to give effect to every word and phrase. King v. St. Vincent Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (ist Cir.1985). But the conventional interpre- tation of section 7002(a)(1)(B) gives full effect to the “im- minent and substantial endangerment” language; it merely eschews the mechanical cross-referencing, not mandated by Congress, that Mallinckrodt advocates. That, in itself, should not raise eyebrows: where the various parts of a complicated and multifaceted statutory scheme discuss significantly dif- ferent topics and function within different paradigms, me- chanical cross-referencing, not mandated by Congress, can lead to confusion rather than clarity. This is such a case. There is no meaningful parallelism between section 7002(a)(1)(B) and the provisions that Mal- linckrodt seeks to use as comparators. For example, RCRA § 3008(e) is a criminal provision. Given the divergent concerns that drive criminal statutes as opposed to civil remedial statutes, it should not be surprising that the same word may vary in meaning as the context shifts. Indeed, if “endangerment” as defined in section 3008(e) were to mean precisely what it means in section 7002(a)(1)(B), the word “imminent” would be rendered utterly redundant—the statute would, in effect, require an imminent imminence—thus trans- 23a gressing the very canon of construction that Mallinckrodt labors to invoke. Mallinckrodt offers a more sophisticated version of the argument that RCRA creates a hierarchy of risks when it posits that the statute’s most expansive remedies are reserved for the greatest risks. In this regard, it points out that under RCRA § 3019(b), EPA can commission a health assessment whenever it believes that a landfill “poses a substantial potential risk to human health,” 42 U.S.C. § 6939a(b); under RCRA § 3013, EPA can order the owner or operator of a facility to conduct monitoring, testing, and analysis as long as the facility “may present a substantial hazard to human health or the environment,” id. § 6934(a); and under RCRA § 7003, which has a risk standard identical to RCRA § 7002(a)(1)(B), EPA can act to protect the public health, see id. § 6973(a). From this statutory melange, Mallinckrodt concludes that only the immediate threat of grave harm is sufficient to trigger such far-reaching remedies. The notion that a hierarchy of risks and remedies exists within RCRA is not easily disproved. What is fairly clear, however, is that any such hierarchy is well-disguised; if one exists, it seems more a product of fortuity than a product of a purposeful legislative initiative. We explain briefly. Section 3019(b) was first enacted in 1984, Pub.L. No. 98-616, § 247, 98 Stat. 3221, 3265; section 3013 in 1980, Pub.L. No. 96-482, § 17(a), 94 Stat. 2334, 2344; and section 7003 (previously cited) in 1976 (though that provision was amended both in 1980 and 1984). Given that the changes were made to different subtitles of the statute at different times, such incrementalism weakens (perhaps to the van- ishing point) any inference that Congress specifically in- tended a strict hierarchy of harms. If Congress actually wants a delineated hierarchy of risks and remedies, it will have to say so more distinctly. Cf King, 502 U.S. at 222, 112 S.Ct. 24a 570 (construing that “differences do not necessarily make hierarchies”). This brings us to Mallinckrodt’s separation-of-powers argument. It asseverates that RCRA’s allocation of policy- making authority to EPA is such that the citizen suit provision must be viewed as an “interstitial, emergency-type remedy.” Appellant’s Br. at 45. Mallinckrodt asserts that this policy- aking authority necessarily includes responsibility for setting pollution standards and that, in setting such standards, EPA, consistent with the tradeoffs inherent in setting virtually any standard, does not aspire to eliminate all risks. This assertion is founded on an indisputable verity: the principal responsibility for implementing and enforcing RCRA resides with EPA, not with citizens acting as private attorneys general. See Meghrig v. KFC Western, Inc., 516 U.S. 479, 483-84, 116 S.Ct. 1251, 134 L-Ed.2d 121 (1996). We disagree, however, with Mallinckrodt’s contention that the conventional interpretation of section 7002(a)(1)(B)—the interpretation espoused by our sister circuits and by the court below—is inconsistent with this scheme because it allows courts to second-guess EPA’s judgments too freely and af- fords relief based upon harms that EPA has found acceptable. Mallinckrodt attempts to bolster this argument by citing a plethora of cases for the proposition that environmental standards should be set by EPA, not the courts. See, e.g., Amoco Oil Co. v. EPA, 501 F.2d 722, 735 (D.C.Cir.1974). This proposition is unremarkable, and we take no issue with it. We agree, moreover, that courts must show appropriate respect for EPA’s judgments. See Envtl. Def. Fund, 598 F.2d at 83-84. But allowing citizen suits to proceed is not the functional equivalent of allowing courts to hijack EPA’s regulatory authority and weave safety standards out of whole cloth. 25a The case at hand illustrates this point. Although EPA (acting in concert with MDEP) was leaning toward the adoption of media protection standards that would not have required downriver remediation, no standards had been adopted at the time the district court acted (nor, for that matter, does the record suggest that any have been adopted up to the present time). Furthermore, EPA has never taken the position—or even so much as hinted—that correction of the Plant’s effects on downriver pollution is bad policy. Thus, this is not a situation in which a court has presumed to grant relief that flies in the face of an express EPA authorization of certain conduct. We add, moreover, that the district court has been sensitive to separation-of-powers concerns. On three different occa- sions, it considered and thoughtfully rejected primary juris- diction challenges.'® And the court sensibly left open the possibility that “primary jurisdiction concerns could arise in the future.” Me. People’s Alliance, 211 F.Supp.2d at 255. That presumably would cover the contingency of changed circumstances that would eventuate should EPA, some day, actually engage in an enforcement action pertinent to the condition of the lower Penobscot. The fact that courts retain some latitude in this area is not in any sense incompatible with the statutory scheme. There are four different ways that EPA can preempt a citizen suit—and all four require that EPA itself take diligent steps to remedy looming environmental harm. See RCRA § 7002(b)(2)(B) (codified at 42 U.S.C. § 6972(b)(2)(B)). That same provision narrowly circumscribes EPA’s preemp- tive power; it states that, when preemption is premised on an EPA order, citizen suits are “prohibited only as to the scope and duration of the administrative order.” The short of it is '0 Mallinckrodt has opted not to revisit the district court’s rejection of these challenges in this appeal. 26a that Congress has told the federal courts that they are not required to steer clear of an area simply because that area might be a focus of future EPA activity.'' Mallinckrodt tries to embellish its separation-of-powers argument in another way as well; it maintains that section 7002(a) embodies a strong preference for permit-violation Suits as opposed to imminent and substantial endanger- ment suits. This attempted embellishment does not with- stand scrutiny. When not premised on the title related to hazardous waste, a permit-violation suit may be brought after a 60-day waiting period while an imminent and substantial endangerment suit requires observance of a 90-day waiting period. Compare RCRA § 7002(b)(1) (codified at 42 U.S.C. § 6972(b)(1)), with RCRA § 7002(b)(2) (codified at § 6972(b)(2)). This is the only substantive difference between permit-violation suits and suits alleging imminent and substantial endangerment. Given the relatively minor nature of that lone disparity, we conclude, without serious question, that the structure of the statutory scheme does not offer any persuasive evidence that Congress sought to disfavor suits alleging imminent and substantial endangerment. Mallinckrodt’s emphasis on statutory structure includes an assertion that giving section 7002(a)(1)(B) a broad reading will render nugatory the right to bring permit-violation ac- tions and the like under RCRA § 7002(a)(1)(A). See Appel- lant’s Reply Br. at 15-16 (querying whether, if “there is a big hole in a fence for the big cat, need there be a small one for the small one?”) (citation and internal quotation marks omitted). The flaw in this argument, as it pertains to this '' This is not meant to suggest that a private party can interfere with an EPA prosecution or disturb the finality of a negotiated settlement. The opposite is true. See Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1323-25 (7th Cir.1992). 27a case, is that the two holes were drilled at different times. Congress placed the “imminent and substantial endanger- ment” gloss on RCRA’s citizen suit provision eight years after making provision for permit-violation suits. Thus, the more appropriate question is: “If Congress deliberately cut a second hole in the fence, is there any reason not to accept the obvious premise that Congress wanted to increase the ease with which cats of all sizes could come through the fence?” Insofar as Mallinckrodt theorizes that courts lack the competence to function under the conventional interpretation of RCRA § 7002(a)(1)(B), we reject its thesis. To be sure, Mallinckrodt cites case after case for the proposition that forging policy is a task that non-expert, non-accountable judges should not undertake. See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); United States v. Gilman, 347 U.S. 507, 511-13, 74 S.Ct. 695, 98 L.Ed. 898 (1954). Some of these cases suggest that judicial policymaking in the environmental sphere is especially inappropriate because judges lack special competence to interpret complex scien- tific, technical, and medical data. See, e.g., Safe Food & Fertil. v. EPA, 365 F.3d 46, 49 (D.C.Cir.2004). This view sells the federal judiciary short: federal courts have proven, over time, that they are equipped to adjudicate individual cases, regardless of the complexity of the issues involved. Federal courts are often called upon to make eval- uative judgments in highly technical areas (patent litigation is an excellent example).'” Performing that quintessentially judicial function in the environmental sphere is not tanta- mount to rewriting environmental policy. To the contrary, what the lower court did here—listening to the testimony of 12 Indeed, even on Mallinckrodt’s crabbed interpretation of section 7002(a)(1)(B), courts would have to engage in exactly the type of evi- dence-weighing that Mallinckrodt says is beyond their competence. 28a expert witnesses, assessing their credibility, and determining whether or not a litigant has carried the devoir of persua- sion—is very much within the core competency of a federal district court. As a last-ditch measure, Mallinckrodt strives to convince us that Congress’s revealed intent, as reflected in the leg- islative history, counsels in favor of a narrow reading of section 7002(a)(1)(B). We are not persuaded. The argument shapes up along the following lines. Citing S.Rep. No. 98-284, supra, at 56, Mallinckrodt reads this archival information as confirming that section 7002(a)(1)(B) was intended to operate “exactly the same” as section 7003. Building on that foundation, Mallinckrodt notes that section 7003, when enacted in 1976, was envisioned as a means of providing “emergency authority.” S.Rep. No. 94-988, at 16 (1976). This gloss, though artful, mixes plums and pomegranates. What is relevant to a congressional statement, in 1984, that section 7002(a)(1)(B) is intended to operate in the same way as section 7003, is not how Congress viewed section 7003 at the time of its original passage but, rather, how Congress understood section 7003 in 1984. This is especially sig- nificant because section 7003 was not worded the same in 1984 as it was in 1976. We think it is clear that the 1980 amendment to the provision, substituting “may present” for “is presenting,” fundamentally altered how this provision was understood. The proof of the pudding is in the legislative archives. We refer particularly to the way in which the provision was discussed during testimony taken in anticipation of the 1984 amendments. At that time, the House of Representatives was told authoritatively that section 7003 contained “very broad and general statutory language” and that the government, “over 29a the last several years,” had been advocating “as broad an interpretation [of it] as possible.” Solid Waste Disposal Act Amendments of 1983: Hearing on S. 757 Before the Sub- comm. on Envtl. Pollution of the S. Comm. on Env’t and Public Works, 98th Cong. 17, 29 (1983) (statement of Carol Dinkins, Asst. Atty. Gen., Land and Nat. Res. Div., Dep’t of Justice). It also learned that the Department of Justice viewed section 7003 as “loosely worded,” so that it conveyed “extra- ordinary, broad law enforcement powers.” /d. at 110, 120. The Senate’s discussion of section 7003 in the course of considering the 1984 amendments likewise suggests an ex- pansive view of the provision. The Senate Report enthus- iastically quotes Price for the proposition that section 7003 is “intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic wastes.”!? S.Rep. No. 98- 284, supra, at 59 (quoting Price, 688 F.2d at 214). It went on to observe that the “primary intent of the provision is to protect human health and the environment.” Jd. Thus, there is good reason to believe that Congress, intending to create a provision modeled along the lines of section 7003, under- stood that section as offering much more than emergency authority. The legislative history is also at odds with Mallinckrodt’s argument that the conventional interpretation of section 7002(a)(1)(B) usurps EPA’s policymaking role. In parsing this legislative history, it is important to recognize that Congress, in 1984, was acting against a background finding that there were “serious gaps” in RCRA, that EPA’s enforce- ment actions were characterized by “inadequate effort,” and '3 Mallinckrodt’s major criticism of the courts that have relied upon Price when construing section 7002(a)(1)(B) is that liability was not contested in Price and that, therefore, the quoted language must have referred to remedial authority. This criticism is undercut by the fact that the Senate Report quotes Price when discussing the liability standard. 30a that EPA “ha[d] not been diligent in vigorously pursuing a tough enforcement program.” H.R.Rep. No. 98-198, pt. 1, at 20 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5578-79. Congress had heard, and apparently credited, testimony from a former Assistant Attorney General about “an astonishing two years of mismanagement at EPA in which the en- forcement of the hazardous waste disposal laws suffered greatly.” Jd., pt. 3, at 6, reprinted in 1984 U.S.C.C.A.N. 5636, 5641. Given this mise-en-scéne, it seems counter- intuitive to suggest that Congress intended to erect an en- forcement structure built on exaggerated deference to EPA. To be sure, the legislative history reflects the anticipation that “courts will accord some deference to [EPA’s] technical findings concerning the nature and extent of endangerment.” S.Rep. No. 98-284, supra, at 56. But we do not think that “some deference” means either total obeisance or blind alle- giance. Congress desired a “tough enforcement program” and found that EPA had not been “diligent in vigorously pursuing” one. Citizen suits were meant to fill the resultant void. We are unimpressed by Mallinckrodt’s citation to language in the House Report to the effect that section 7002(a)(1)(B) was designed to create a “limited right” for citizens to sue. H.R.Rep. No. 98-198, supra, pt. 1, at 53, 1984 U.S.C.C.A.N. at 5612. The very next sentence in that report explains the nature of the limitation, namely, that this “right can only be exercised if the Administrator (following notice of the in- tended litigation) fails to file an action under 7003.” Jd. The To the extent that Congress, within this new regime, intended to allow EPA to defend its own policymaking prerogatives, it appears to have placed the onus on EPA, rather than the courts, to stand as the sentry at the gates. See S.Rep. No. 98-284, supra, at 56 (explaining that “if the Administrator believes a citizen suit . . . is not being prosecuted in the public interest, he may exercise the right to intervene . . . and seek from the court restrictions or conditions upon the citizen suit”). 3la conventional interpretation of the statute does not in any way offend this directive. Finally, Mallinckrodt spotlights a comment from the floor debate on section 7002, in which the bill’s sponsor char- acterized the provision as giving citizens the power “to abate the most serious kinds of hazardous waste situations: Those that may present an imminent and substantial endanger- ment.” 130 Cong. Rec.2081, 2815 (1984) (statement of Sen. Mitchell). This one remark cannot outweigh the substantial countervailing evidence that the citizen suit provision was intended to empower private citizens by granting them relatively broad authority to litigate when EPA had not acted in the face of a reasonable prospect of serious, near-term harm. See Weinberger v. Rossi, 456 U.S. 25, 35, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982). Legislative history is often a mixed bag. Parties frequently are able to mine nuggets from it selectively, picking and choosing isolated statements that serve particular (sometimes conflicting) ends. Here, the legislative history is less than pellucid. On the whole, however, it tends to support an expansive reading of the “imminent and substantial endanger- ment” standard for liability under RCRA § 7002(a)(1)(B). To sum up, the combination of the word “may” with the word “endanger,” both of which are probabilistic, leads us to conclude that a reasonable prospect of future harm is ade- quate to engage the gears of RCRA § 7002(a)(1)(B) so long as the threat is near-term and involves potentially serious harm. The language, structure, purpose, and legislative his- tory of the provision will not comfortably accommodate the more restricted reading that Mallinckrodt espouses. While there may be good and wise reasons to adopt a regime in which EPA determinations of environmental liability are exclusive, it is Congress’s place, not ours, to construct such a regime. To this date, Congress has not done so. 32a Given our conclusion that the conventional interpretation of RCRA § 7002(a)(1)(B) is correct, the remainder of the liability inquiry falls neatly into place. None of Mal- linckrodt’s arguments persuade us that the district court either misconstrued this standard or misapplied it to the facts of this case. While an imminent and substantial endangerment requires a reasonable prospect of a near-term threat of serious potential harm, the court below made supportable findings that suffice to bring this case within the compass of that standard. See, e.g., Me. People’s Alliance, 211 F.Supp.2d at 245 (concluding that methylmercury is a “highly toxic sub- stance”); id. at 251 (concluding that, in an aquatic system, “methylation is a continuous process that can go on for decades”). Based on these and other well-founded findings, the plaintiffs established that the potential risk from mercury is serious and likely to be present here and now. In tum, these findings support a conclusion that, as the district court held, there may be an imminent and substantial endangerment to the lower Penobscot River. No more is exigible. IV. THE REMEDY Our environmental odyssey is not yet finished. Mal- linckrodt contends that the district court committed an abuse of discretion in ordering it to fund a study of the lower Penobscot. This contention is rooted in the notion that a court must balance the relevant harms before granting injunctive relief under an environmental statute—even if the statute spe- cifically authorizes that type of relief. See United States v. Bethlehem Steel Corp., 38 F.3d 862, 867 (7th Cir.1994). Mallinckrodt would have us achieve this balance by applying the familiar four-part framework for determining the appro- priateness of wnjunctive relief. Under that framework, the injunction-seeker “must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that 33a injury; (3) that, considering the balance of hardships between the [parties], a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., __ US. __»___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). Conceptually, we agree with Mallinckrodt that a trial court, in an environny ntal case, should consider the balance of relevant harms before granting injunctive relief, even though the statute itself authorizes such relief. The familiar four-part framework for injunctive relief is a suitable guide in such situations. We caution, however, that the operation of that framework is inevitably colored by the nature of the case and the purposes of the underlying environmental statute (here, RCRA). Against this backdrop, Mallinckrodt insists that the district court mishandled the third of the four enumerated elements by failing adequately to account for the onerous hardships that the study would impose and contrast those hardships with the meager benefits that the study might generate. In a nutshell, Mallinckrodt’s position is that the study will saddle it with a staggering economic burden—a burden so open- ended that the overall cost cannot be predicted with any assurance—yet will yield supposed benefits to the plaintiffs’ members that are at best speculative and at worst ephemeral. In this regard, Mallinckrodt stresses that it is an open question whether the lower Penobscot is actually in need of any remediation.'° 'S Mallinckrodt suggests that because Dr. Livingston acknowledged a dearth of information conceming the current condition of the lower Penobscot, the district court did not have sufficient facts before it to make an informed weighing. It also suggests that the court neglected to accord due respect to EPA’s tentative view that the proposed media protection standards would adequately ensure the river’s safety. Whatever force these suggestions may have—and we do not imply that they have any— they go mainly to liability, not remedy. 34a One difficulty with Mallinckrodt’s position is that it treats this injunction like a garden-variety injunction and, in the bargain, undervalues the extent of the equitable discretion possessed by a district court after a finding of liability under RCRA § 7002(a)(1)(B). While Mallinckredt’s hardships are relevant to the acceptability of a RCRA remedy, the argument that hardship must always be outweighed by deliverable benefits offends the logic of Price. Even on Mallinckrodt’s restrictive reading of that decision, Price holds that “Con- gress sought to invoke the broad and flexible equity powers of the federal courts in instances where hazardous wastes - threaten [ ] human health.” 688 F.2d at 211. Ironically, Mallinckrodt dresses this argument in the raiment of a defense of judicial prerogatives. It cites Wein- berger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for the proposition that judges should not lightly assume that Congress has stripped courts of their equitable discretion. But that is a red herring: while it is true that a district court is not commanded, regardless of the circumstances, to issue an injunction after a finding of liability, the court below was under no misapprehension on this score. In reality, Mallinckrodt wishes to restrict, not preserve, the equitable discretion of the district courts, and the case law that it cites is therefore beside the point. In reviewing a district courts exercise of its equitable discretion under such circumstances, we think it fully appro- priate to acknowledge the statutory scheme under which liability was found. Given the strong statement in Price, embraced by the Senate Report, advocating the exercise of equitable remediation of environmental hazards, we perceive a congressional thumb on the scale in favor of remediation. With this backdrop in place, we are unwilling to say that the district court abused its discretion either by starting with the proposition that its primary concern ought to be how best to remedy a potentially serious near-term environmental hazard 35a or by granting relief notwithstanding the absence of a show- ing that the remedy’s demonstrable benefits exceeded its probable costs. This is not to say that the costs associated with injunctive relief are immaterial; we can imagine circumstances in which the expense entailed in carrying out a particular remedial plan might dwarf the potential benefits to the environment or to human health. Here, however, the anodyne chosen by the district court does not seem so vastly disproportionate to the threatened harm as to warrant, from the vantage point of a cold appellate record, a recalibration of the balance. This conclusion is reinforced by the fact that Mallinckrodt has not identified any less burdensome, more cost-effective remedy that the court could have imposed to address the perceived environmental harm.'° Where, as here, a polluter has failed to articulate a “nice adjustment and reconciliation between the public interest and private needs,” Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944), a burdensomeness argument rarely will gain much traction. Taking a slightly different tack, Mallinckrodt characterizes the study-plan order as unfair. It should not be forced to pay '© Mallinckrodt does mention, albeit in passing, that the district court committed an abuse of discretion in not “requiring an estimate of [the study’s] overall costs.” Appellant’s Br. at 62. Although it certainly would be preferable for a court to establish with some exactitude the extent of the financial burden imposed by a particular remedy, that degree of precision is sometimes infeasible or impractical. The court below was cognizant of this shortcoming and took pains to note in the order approving the study plan, entered on August 10, 2005, that “if necessary and at the appropriate time, the Court will require the preparation by the Study Panel of a budget formulation for any remedial plan or effort which may result from the first phase” of the study. Given the complex nature of the situation and the existence of this safety valve, we find the absence of more definitive cost parameters tolerable. 36a the entire cost of the study, it complains, because it is not the only entity to have contributed to the pollution of the lower Penobscot. That plaint rings hollow. While Mallinckrodt was not the sole source of mercury contamination, it was a dominant one, so in that sense its claim of inequitable treat- ment comprises more cry than wool. At any rate, RCRA liability, generally speaking, is joint and several. See Cox, 256 F.3d at 301 n. 37. The joint and several nature of environmental liability [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0494%3A1. Public record. Not legal advice.