Opposition Brief — Mallinckrodt, Inc. v. Maine People's Alliance (No. 06-1540)
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FILED
(2) JUN 20 2007
OFFICE OF T
H
No. 06-1540 SUPREME COURT Ae
IN THE
Supreme Court of the Gnited States
MALLINCKRODT INC.
Petitioner,
V.
MAINE PEOPLE’S ALLIANCE AND NATURAL RESOURCES
DEFENSE COUNCIL, INC.
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the First Circuit
RESPONDENTS' BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
ERIC J. UHL MITCHELL S. BERNARD*
Moss & SHAPIRO, P.A. NANCY S. MARKS
400 Congress Street NATURAL RESOURCES
4th Floor DEFENSE COUNCIL, INC.
Portland. ME 04101 40 West 20th Street
(207) 774-6001 New York, NY 10011
(212) 727-2700
Counsel for Respondents
* Counsel of Record
QUESTIONS PRESENTED
1. Whether a court may find injury-in-fact, consistent
with this Court's Article III jurisprudence, where plaintiffs
reasonably curtailed their use of natural resources based on
reliable information about serious mercury contamination,
and in view of persuasive evidence from experts and
government officials that the mercury may present an
imminent and substantial endangerment to human health and
the environment.
2. Whether this Court should uphold a finding of liability
under the citizen suit provision of the Resource Conservation
and Recovery Act, based on the same legal standard applied
by every court of appeals to consider it, where plaintiffs
demonstrated that a polluter's wastes “may present an
imminent and substantial endangerment to health or the
environment,” and the district court properly exercised its
discretion to adjudge a risk of serious harm and devise a
suitable remedy.
il
RULE 29.6 LISTING
Pursuant to Rule 29.6 of the Rules of this Court,
respondents Maine People’s Alliance and Natural Resources _
Defense Council, Inc. state that they are non-profit
corporations with no outstanding shares or debt securities in
the hands of the public, and that neither organization has any
parent, subsidiary, or affiliate that has issued shares or debt
securities to the public.
iil
TABLE OF CONTENTS
QUESTIONS PRESENTED ............csccccsscsssesronssoes
PETE £98 UIST IIE nncsccssccssecnasernseassssscovesnscavesensie
TABLE OF AUTHORITIES ...00..ccicccercsceccssssersereess
STATEMENT OF THE CASE .........cc0csscssccssovesesss
REASONS FOR DENYING THE PETITION ......
I.
COURTS ARE EMPOWERED UNDER
RCRA TO MAKE INDEPENDENT
JUDGMENTS BASED ON THE
EVIDENCE IN FINDING INJURY-IN-
FACT SUFFICIENT TO CONFER
STANDING UNDER ARTICLE IW ..........
A.
The Courts Below Properly Assessed
Well-Grounded Factual Findings
Under The Settled Legal Standard In
Holding That Plaintiffs Demonstrated
TOIT Iv itniinicapenniyinincistmssbassonnsesen
District Courts Have Authority To
Assess Risks In Imminent And
Substantial Endangerment Cases ..........
1. Under RCRA's "Imminent And
Substantial Endangerment"
Provision, Congress Created A
Claim Independent Of Agency
DID stisccctspiconteiipronecsito iia
Page
iv
TABLE OF CONTENTS -— continued
2. Courts' Determinations Of Article
II Injury Under RCRA Do Not
Encroach on Agency Powers ..........
3. Courts Are Competent To Assess
Pe aanindctlesiesidencirnncsernncesions eee
Il. THE LANGUAGE AND PURPOSE OF
RCRA ANDITS CITIZEN SUIT
PROVISION COMPEL THE
INTERPRETATION OF THE
"IMMINENT AND SUBSTANTIAL
ENDANGERMENT" LEGAL
STANDARD ADOPTED BY THE
FIRST CIRCUIT AND ALL OTHER
CIRCUITS THAT HAVE CONSIDERED
A. The Lower Courts’ Interpretation
Implements Congress's Grant Of
Authority To Courts To Protect Public
Health And The Environment Where
Agencies Fail To Do SO ..........2ssesscereeeee
B. The Interpretation Of RCRA
Uniformly Adopted By The Courts Of
Appeals Is Most Consistent With
Canons Of Statutory Construction .........
1. Imminent And Substantial
Endangerment Authority Is An
Alternative And Supplement To
Other RCRA Remedies, Not Part
Of An Invented "Hierarchy Of
Risks And Remedies” ..................+-
Page
15
17
19
19
TABLE OF CONTENTS -— continued
Page
2. The First Circuit's Interpretation
Preserves The Independent
Applicability Of Two Types Of
RETA Cee Be istics sii cncsenvnens... 22
3. The First Circuit's Interpretation
Harmonizes RCRA's Uses Of
ES FIT sssisissssicrsrcsciees scores 24
C. RCRA's Citizen Suit Provision, As
Uniformly Interpreted By The Courts
Below For Over Twenty Years, Has
Protected Public Health And The
Environment, Properly Allocated Costs
Of Contamination To Polluters, And
Complemented Agency Enforcement ... 27
CIGD ssn cancerianepecsiendisesnssnsivinestovesesmenuasniinn 30
vi
TABLE OF AUTHORITIES
Page
CASES
Albany Bank & Trust Co. v. Exxon Mobil Corp.
310 F.3d S69 (7a: Cir. 2GDZ) ...00n00...0censccccesenes 15
Baughman v. Bradford Coal Co.
DIR Fk AS (AO Gals BATA) svnnssnescctcsnsassesvesnnse 17
Cent. Delta Water Agency v. United States
SOG FSe G56 CF Car. DIZ) ones cvsenscservescveveveseee 6
Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc.
Be ee EE IE sincaisersiccsseniiinsvtcanesionanecsini 10
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.
SE rs Fe I occ cine csren ston oscnsanmincicgsons 10
Christiansburg Garment Co. v. Equal
Employment Opportunity Comm'n
I EE bicithsthcrerninccsinctey ehessnnsocnpncen 29
City of Los Angeles v. Lyons
BR Lh. |) enema nner 5
Commerce Holding Co. v. Buckstone
749 F. Supp. 44] (E.D.N.Y. 1990) 00.0.0... 24
Conn. Coastal Fishermen's Ass'n v.
Remington Arms Co.
969-20 £305 GG Cw. 1993) ....0002.--020cccsersse0se 8
Cox v. City of Dallas
256 F356 ZO) CG Cat. 2001) «...020c0cosccessecesee 8, 15, 16, 25
Dague v. City of Burlington
935 F.2d 1343 (2d Cir. 1991), rev'd in part
on other grounds, 505 U.S. 557 (1992) ............ 15, 25, 27
Duke Power Co. v. Carolina Envtl. Study Group, Inc.
2 Bek © Lk. 5, EReme ne Rcmnnmwaremnrnrn ee ayeree 10, 11
Envtl. Def. v. Duke Energy Corp.
BF i TE Siri vnncniininsininstertaxnmcanitess 26
Envtl. Def. Fund v. EPA
SOE Fe ae Cs ie Sats PIGS dpsenvserecerssccmoscaice 10
vii
TABLE OF AUTHORITES -— continued
Page
Ethyl Corp. v. EPA
OO4 © Ae TAIRA; CAR TSI) scccdiveniscasorerncsipeonenns 25
Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp.
204 F.3d 149 (4th Cir. 2000) ...............cssssseoseee 12
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc.
I Se Cie TE einephvcsdaeessietntinlenerontinntomnyiias 5, 6, 11
Indus. Union Dep't v. Am. Petroleum Inst.
EG AEF Ee EE ition sconstesteistennictebenctiones 9-10
Interfaith Cmty. Org. v. Honeywell Int'l, Inc.
S98 FSG BAG OE CA. ZOOS) cvcesosicencsssssnsasassonias 11, 15,29
LaFleur v. Whitman
SOG FE 256 (28 CH. DOGZ) cccscnisincecsnescessnsasocnes 11
Lujan v. Defenders of Wildlife
FT as re ED citteisvenincvviscnceptestibeinanin 4,5, 8-9, 12
Massachusetts v. EPA
FF ae BR REID cin ccccsuhecnisiecnetesniabipaiaien 8,12
Middlesex County Bd. of Chosen Freeholders v.
N.J. Dep't of Envtl. Prot.
645 F. Supp. 715 (D.NJ. 1986) ...........-...ccssesosee 27
O'Melveny & Myers v. FDIC
SEE i Fe Miciatebicinaicnictterhcantibcccaentinteaies 10
Parker v. Scrap Metal Processors, Inc.
386 F.3d 993 (11th Cir. 2004) oe 15, 25
Razore v. Tulalip Tribes of Wash.
FP i ee le BUDD wasecssstesinsssseniesniguans 29
Reserve Mining Co. v. EPA
514 F.26 82 COG Cit, 1973) .osccocsscsrssssscnreecosnns 25
Sierra Club v. Morton
Ws (5S. Fat LA) scviicinntcnhiieacinon 5
Vili
TABLE OF AUTHORITIES -— continued
Page
Student Pub. Interest Research Group of N.J., Inc. v.
Fritzsche, Dodge & Olcott, Inc.
Pa ae FAST Got CR. 19965) ...........c.csrsseceersens 17
Tanglewood E. Homeowners v.
Charles-Thomas, Inc.
849 F.2d 1568 (Sth Cir. 1988) ...............cccceceees 24
Tex. Indus., Inc. v. Radcliff Materials, Inc.
WE BF, COO ESOL) wnsssesscccnsscrecccsssenesccscccneeenenee 10
United States v. Aceto Agric. Chems. Corp.
Fe ee 1B 18 CE AT. LIDT) cecenrcsororcceverceezsees 16
United States v. Conservation Chem. Co.
619 F. Supp. 162 (W.D. Mo. 1985) oo... eeeeeeees 15, 16
United States v. Price
688 F.2d 204 (3d Cir. 1982) ....... eee 2, 8, 16, 25-26, 27
United States v. Waste Indus., Inc.
ee BOW COE GAL, LIDS) sesccsserscsserorccovessonss 16, 25
Warth v. Seldin
I ME PTSD sv icvavscnesuceavensvsnvsssesccsoesenseseee 4
Weinberger v. Romero-Barcelo
EE IED sicccansvenanscosssennnsnenscenssnvehssove 20
STATUTES
Clean Air Act
§ 304, 42 U.S.C. § 7604 ...........cscsssssersroesreeerees 17
§ 304(a), 42 U.S.C. § 7604(a) ......eceeeeeeeseseees 7
Clean Water Act
§ 505, 33 U.S.C. § 1365 .......ssesssreecererenessreeees 17
§ 505(a), 33 U.S.C. § 1365(a) «0... ecseecereeseererees 7
Comprehensive Environmental Response,
Compensation, and Liability Act
§ 104, 42 U.S.C. § 9604 .............cccerserercsosersseenee 21
ix
TABLE OF AUTHORITIES - continued
Page
Resource Conservation and Recovery Act
§ 3008(e), 42 U.S.C. § 6928(e) ....................0000 26
§ 3008(g), 42 U.S.C. § 6928(g) oe eseseeeeeees 24
§ 3019(b)(2), 42 U.S.C. § 6939a(b)(2) ....... eee 21
| § 7002(a), 42 U.S.C. § 697268) ........0.0c0csceeessooee 20
§ 7002(a)(1)(A), 42 U.S.C.
rE INE dicshatoiestessstdanonsovanesensesse 7, 13, 23, 24
§ 7002(a){1)(B), 42 U.S.C.
§ 6972(a)(1 )(B) ....... 1 2, 7, 14, 13. 15, 2, 2h, Zaedt
§ 7002(b)(1)(B), 42 U.S.C. § 6972(b)(1)(B) .... 23
§ 7002(b)(2)(B), 42 U.S.C. § 6972(b)(2)(B) .... 18
§ 7002(b)(2)(B)(iii), 42 U.S.C.
Bl EI ITEED coseevnsrsvecienvnssnncsieasersiviens 21
§ 7002(b)(2)(B)(iv), 42 U.S.C.
CFT EE IEE sisvcnessscrevnscovsanssccesecasssenie 24
§ 7003, 42 U.S.C. § 6973 ............ 7, 8, 16, 20, 21, 24-27
Solid Waste Disposal Act Amendments of 1980,
Pub. L. No. 96-482, 94 Stat. 2334 wo. 25
LEGISLATIVE HISTORY
H.R. Rep. No. 98-198, pt. 1 (1983), as reprinted in
AE. DITO tistncinesveisancrntinrasnciesivnn 18, 29
S. Rep. No. 96-172 (1979), as reprinted in
yo BRS te alt TA. | 5 MESES ero EMO EI 8,18
S. Rep. No. 98-284 (1983) ...............es0000 2, 8, 16, 21, 26, 29
X
TABLE OF AUTHORITIES — continued
SCHOLARLY AUTHORITIES
Zygmunt J.B. Plater, Dealing With Dumb and
Dumber: The Continuing Mission of Citizen
Environmentalism, 20 J. Envtl. L. & Litig.
| ARERR ESE Seas Sens PE Ate Oe
Kristi M. Smith, Who's Suing Whom?:
A Comparison of Government and Citizen
Suit Environmental Enforcement Actions
Brought Under EPA-Administered Statutes,
1995-2000, 29 Colum. J. Envtl. L. 359 (2004) .......
Matthew D. Zinn, Policing Environmental
Regulatory Enforcement: Cooperation, Capture,
and Citizen Suits, 21 Stan. Envtl. L.J. 81 (2002......
Page
28
28
29
RESPONDENTS' BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
Respondents Maine People's Alliance and Natural
Resources Defense Council, Inc. respectfully request that this
Court deny the Petition for Writ of Certiorari to the United
States Court of Appeals for the First Circuit.
STATEMENT OF THE CASE
The First Circuit has joined its sister courts of appeals in
adopting their uniform view of federal courts' equitable
authority under the citizen suit provision of the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C.
§ 6972(a)(1)(B). The First Circuit's opinion faithfully reflects
Congress's deliberate choices about how best to protect
human health and the environment from significant risks
associated with persistent toxic contamination from industrial
activities.
In this case, petitioner released massive quantities of
mercury, a highly toxic chemical, directly into the Penobscot
River from a chemical manufacturing facility in Maine.
Although the Environmental Protection Agency ("EPA") and
its state counterpart knew for decades that mercury from the
plant had contaminated the river for many miles downstream
of the plant, the agencies never compelled petitioner to
address that contamination.
Recognizing that, as in this case, agencies sometimes fail
adequately to address public health and environmental mnsks
from toxic wastes, Congress has granted federal courts broad
powers under RCRA to eliminate such risks at the behest of
affected citizens. Respondents brought suit under RCRA
section 7002(a)(1)(B), a provision modeled on nuisance
principles that permits a court to respond as needed when
wastes "may present an imminent and _ substantial
endangerment to health or the environment." 42 U.S.C.
§ 6972(a)(1)(B). Congress has made clear that this provision
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, at 59 (1983) (quoting United States v. Price, 688 F.2d
204, 214 (3d Cir. 1982)).
Based on an extensive factual record and applying well-
established legal standards, the district court below found that
plaintiffs had standing because their members reasonably
refrained from using contaminated Penobscot resources.
Finding further that mercury, predominantly from petitioner's
facility, was spreading throughout the Penobscot system,
converting into its most toxic form, and working its way up
the food web, the court found petitioner liable under the
applicable legal standard: its waste may present an imminent
and substantial endangerment to human health and the
environment. At plaintiffs' request, the district court ordered
a study to determine the full scope and character of the
contamination, a prerequisite to any further remedy that might
follow.
Petitioner appealed, claiming that aistrict courts are not
empowered to make their own determinations of harm, either
for purposes of Article III standing or for adjudging RCRA
liability; such determinations, it claims, are reserved to
agencies. The First Circuit found no support for this all-out
attack on judicial power, which it found to be in direct
conflict with Congress's express allocation of authority under
RCRA. Moreover, the First Circuit rejected petitioner's
attempts to cramp courts’ discretion through reference to an
invented statutory hierarchy of risks and remedies. Instead,
the court adopted the view, shared by the six other courts of
appeals to opine on the scope of "imminent and substantial
endangerment" authority, that the language and purpose of the
statute confer expansive equitable powers, and that the district
court's rulings, based on well-grounded factual findings, were
consistent with those powers.
Petitioner tries to paint a dramatic portrait of
unconstrained citizens and courts threatening to debilitate the
nation's economy and undermine government agencies. In
the end, however, this is just a case about a polluter who, for
decades, escaped accountability for dangerously
contaminating an estuary and who now seeks one final
reprieve. The courts below, thoughtfully applying well-
settled legal principles, have ruled that petitioner must take
responsibility for its pollution. There is no cause for this
Court to disturb those rulings.
REASONS FOR DENYING THE PETITION
I. COURTS ARE EMPOWERED UNDER RCRA
TO MAKE INDEPENDENT JUDGMENTS
BASED ON THE EVIDENCE IN FINDING
INJURY-IN-FACT SUFFICIENT TO CONFER
STANDING UNDER ARTICLE III.
Petitioner advances the radical argument that district
courts are powerless to find injury-in-fact except as defined
by a "politically accountable entity." Pet. 10, 11. The First
Circuit characterized this argument as "nothing less than a no-
holds-barred assault on the federal courts’ institutional
competency" that has "breathtaking ramifications for the
scope of judicial power." Pet. App. 12a, 13a. Petitioner's
theory defies logic and is without support from the decisions
of this (or any other) Court. Congress, acting within its
constitutional authority, created a cause of action under
RCRA that does not depend on violation of agency-defined
standards. And courts are competent (indeed, obliged) to
assess whether plaintiffs have suffered a cognizable injury
under Article III, based on the standards set forth in the
Statute.
A. The Courts Below Properly Assessed Well-
Grounded Factual Findings Under The Settled
Legal Standard In Holding That Plaintiffs
Demonstrated Injury-In-Fact.
Article III standing requires an individual plaintiff to
demonstrate a concrete and particularized injury-in-fact, a
causal connection between the defendant's actions and that
injury, and a likelihood that prevailing in the lawsuit will
provide some redress for the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). At issue here is the
injury-in-fact finding below.
The district court heard and credited testimony from four
of plaintiffs’ members who live on or near the Penobscot
River and stated that they forgo activities out of fear of
mercury contamination. Pet. App. 9a-10a. As described by
the First Circuit, "[a]lthough 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." /d. at 10a. Under this Court's rulings, the evidence
considered by the court easily supports its finding of injury.
The First Circuit acknowledged that "[t]o establish an
injury in fact based on a probabilistic harm, a plaintiff must
show that there is a substantial probability that harm will
occur." Pet. App. lla (citing Warth v. Seldin, 422 U.S. 490,
504 (1975)). In this context, the First Circuit found that the
district court, drawing on a "plethora" of evidence,
supportably concluded that "mercury is
methylating downriver, and that such
methylmercury is bioavailable, entering biota,
and biomagnifying throughout the food web"
in sufficient quantity that it may well present
an imminent and substantial danger to the
environment. Relatedly, the [district] court
found that "the effects resulting from
methylmercury exposure . . . clearly endanger
reproduction, development, and overall health
of the public and the environment," and that
[petitioner] “has been a dominant source of
mercury in the Penobscot River."
Pet. App. 1 1a-12a (citations omitted). '
In Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167 (2000), this Court
confirmed that "environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area
and are persons ‘for whom the aesthetic and recreational
values of the area will be lessened’ by the challenged
activity.” Jd. at 183 (quoting Sierra Club v. Morton, 405 U.S.
727, 735 (1972) (citing Defenders of Wildlife, 504 U.S. at
562-63)). As the First Circuit correctly noted, a plaintiff's
decision to forgo aesthetic or recreational pleasures based on
concerns about pollution will constitute a cognizable injury
when that concern is based on a realistic threat. Pet. App. 10a
(citing Laidlaw, 528 U.S. at 184; City of Los Angeles v.
Lyons, 461 U.S. 95, 107 n.8 (1983)). The plaintiffs in
Laidlaw attested that they refrained from recreating along the
river into which the defendant discharged its effluent, because
of their concerns about the unlawful pollution. 528 U.S. at
' Petitioner repeatedly quotes a statement from plaintiffs’ expert, Dr.
Robert Livingston, to challenge the district court's finding of harm. Pet. 6,
15. The First Circuit dismissed this ploy of relying “on a single snippet of
Dr. Livingston's testimony, wrested from its contextual! moorings,"
declaring that “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." Pet. App.
lla. In fact, Dr. Livingston testified in detai] about "problems" associated
with mercury from petitioner's plant, see Tr. Vol. 1A, at 1-49, Tr. Vol. 1B,
at 1-81, Tr. Vol. IC, at 1-36, Tr. Vol. 9, at 3-90, concluding that there was
presently a "serious" endangerment from mercury downnver, Tr. Vol. 9,
at 3-4. In holding that there may be an imminent and substantial
endangerment from petitioner's mercury, the court found Dr. Livingston's
testimony to be "particularly credible and persuasive." Pet. App. 61a.
6
181-83. This Court found the plaintiffs' concerns reasonable,
given the defendant's "continuous and pervasive illegal
discharges of pollutants." /d. at 184.
The First Circuit below endorsed the district court's
findings of injury-in-fact under the Laidlaw standard:
In light of its warrantable findings, the court
had ample reason to conclude that [petitioner]
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.
Pet. App. 12a. The courts below applied the settled legal
standard and properly found that the evidence supported a
finding of Article III injury under that standard.
B. District Courts Have Authority To Assess Risks In
Imminent And Substantial Endangerment Cases.
The core of petitioner's argument is that the
reasonableness of an environmental plaintiffs concems can
be assessed only by reference to violation of agency
standards. Laidlaw itself implies no such proposition.”
Where a lawsuit is based on violation of an agency-defined
standard, like the Clean Water Act permit at issue in Laidlaw,
it makes sense that a court may determine injury with
reference to that standard. But where, as here, Congress has
created a cause of action based on a risk that is not defined in
relation to agency standards, courts may determine injury as
the district court did below — through conventional fact-
finding based on a range of evidence. Contrary to petitioner's
2 See Cent. Delta Water Agency v. United States, 306 F.3d 938, 949
(9th Cir. 2002) (discussing why "[t]he reasoning in [Laidlaw and other]
cases does not require that a statutory violation have occurred in order for
standing to exist to challenge threatened environmental harm").
claims, this traditional equitable authority does not implicate
separation of powers concerns.
1. Under RCRA's “Imminent And Substantial
Endangerment" Provision, Congress Created A
Claim Independent Of Agency Standards.
Congress purposefully created a cause of action that is
independent of RCRA's general regulatory scheme. By
contrast, nearly every other federal environmental statute
authorizes affected citizens to sue only for violation of
regulatory requirements, including permits, standards, orders,
or other limitations defined by agencies. See, e.g., Clean
Water Act § 505(a), 33 U.S.C. § 1365(a); Clean Air Act
§ 304(a), 42 U.S.C. § 7604(a). RCRA itself contains such a
provision — § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) -
authorizing suit for “violation of any permit, standard,
regulation, condition, requirement, prohibition, or order
which has become effective pursuant to this chapter."
Alone among environmental statutes that provide for an
agency-implemented regulatory scheme, RCRA defines an
additional cause of action for citizens that is independent of
agency-imposed requirements. This second provision —
§ 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B) — authorizes suit
against those whose waste "may present an imminent and
substantial endangerment to health or the environment,"
notwithstanding compliance or non-compliance with
regulatory requirements.°
Congress understood that endangerment may not be so
simply measured as compliance with an agency-defined
standard; a finding of endangerment requires a court's
discretion to weigh all kinds of evidence. In fact, Congress
declared that the imminent and substantial endangerment
> Originally, Congress gave the power to address imminent and substantial
endangerment only to EPA: RCRA § 7003, 42 U.S.C. § 6973. Congress
later extended the authonity to citizen claims upon finding that EPA
enforcement was incomplete, see infra Part I-A.
8
provision "is essentially a codification of common law public
nuisance remedies . . . [and], therefore, incorporates the legal
theories used for centuries to assess liability for creating a
public nuisance . . . and to determine appropriate
remedies... ." S. Rep. No. 96-172, at 5 (1979), as reprinted
in 1980 U.S.C.C.A.N. 5019.* See also Cox v. City of Dallas,
256 F.3d 281, 289 (5th Cir. 2001) ("Nuisance principles form
the core doctrinal foundation for modern environmental
statutes, including the RCRA."). In codifying the provision,
Congress exhorted courts to recognize "that risk may be
‘assessed from suspected, but not completely substantiated,
relationships between facts, from trends among facts, from
theoretical projections, from imperfect data, or from probative
preliminary data not yet certifiable as "fact."" S. Rep. No.
98-284, at 59 (1983) (citations omitted). Congress made clear
that the new provision was "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." Jd. at 59 (1983) (quoting United States v. Price, 688
F.2d 204, 214 (3d Cir. 1982)).
As found by the court below, "Congress has elected to
create a cause of action for affected citizens notwithstanding
the absence of any EPA-sponsored standard." Pet. App. 13a.
This in no way implicates Article III concerns. This Court's
recent decision in Massachusetts v. EPA, 127 S.Ct. 1438
(2007), reaffirms that "Congress has the power to define
injuries and articulate chains of causation that will give rise to
a case or controversy where none existed before." Jd. at 1453
(quoting Defenders of Wildlife, 504 U.S. at 580 (Kennedy, J.,
4 Although Congress made this pronouncement with respect to section
7003, 42 U.S.C. § 6973, it applies equally to the analogous citizen suit
provision, which "[is] intended to allow citizens exactly the same broad
substantive and procedural claim for relief which is already available to
the United States under section 7003." S. Rep. No. 98-284, at 56-57
(1983). See also Conn. Coastal Fishermen's Ass'n v. Remington Arms
Co., 989 F.2d 1305, 1314-15 (2d Cir. 1993).
concurring in part and concurring in judgment)). In
considering such a claim, a court, like the district court below,
may weigh various types of evidence in assessing whether
plaintiffs have demonstrated the requisite Article III injury.
2. Courts' Determinations Of Article I Injury
Under RCRA Do Not Encroach on Agency
Powers.
Petitioner challenges the district court's authority to assess
harm in this traditional manner. In arguing that only
politically accountable bodies may determine what constitutes
environmental harm, petitioner conflates the general policy-
making activities that normally fall within the province of
agencies with the case-specific adjudicatory powers granted
to federal district courts.
Petitioner first claims that only politically accountable
bodies, not courts, may determine what environmental risks
are “acceptable.” Pet. 11.° In support of this claim, petitioner
cites cases involving challenges to agency standard-setting,
none of which relates remotely to a district court's power to
find environmental injury in a RCRA citizen suit. See Indus.
Union Dep't v. Am. Petroleum Inst., 448 U.S. 607 (1980)
(evaluating OSHA standards limiting workplace exposures to
5 Neither respondents nor the courts below suggest that anything short of a
"risk-free" environment would constitute a cognizable injury. See Pet. 11.
Petitioner repeatedly mischaracterizes the level of msk claimed by
respondents and found by the district court to constitute injury. The courts
below did not determine that "any non-de minimis risk of future harm can
suffice as a cognizable injury-in-fact." Pet. 10; see also id. at 3
(discussing "non-imaginary risks"), 7, 17, 23. The district court cited the
"de minimis" \anguage in illustrating what plainly does not constitute an
imminent and substantial endangerment, but did not purport to define by
those terms the universe of what does represent such an endangerment.
Pet. App. 54a. An examination of the district court's full findings and the
First Circuit's affirmance confirms that neither court adopted such a
watered-down standard. See infra Part Il.
10
benzene in light of the purposes of the enabling statute);
Envtl. Def. Fund v. EPA, 598 F.2d 62 (D.C. Cir. 1978)
(discussing deferential standard of review in challenge to
EPA regulations governing PCBs). As the First Circuit noted,
these cases are inapposite; they do not address standing or
Article III's limits on judicial power. Pet. App. 13a & n.6.°
Much more to the point are cases involving claims of
environmental or health injury where courts have found harm
without reference to agency guidelines. Judges routinely and
properly assess whether risk of future harm to health or the
environment is sufficient for standing, without depending on
violations of permit limits or other quantifiable measures of
risk established by agencies.
For example, in Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 73-74 (1978),
this Court upheld a finding of injury where plaintiffs feared
the effects of future exposures to thermal pollution and
radiation from proposed nuclear power plants. Specifically,
this Court found that "the emission of non-natural! radiation
into appellees’ environment would also seem a direct and
present injury, given our generalized concern about exposure
to radiation and the apprehension flowing from the
6 Petitioner cites an additional raft of similarly inapposite cases, none of
which relates to a court's authority to determine standing under Article III,
for the proposition that the First Circuit's finding of injury "compels courts
to make judgments for which they lack institutional competence and
constitutional authority.” Pet. 15 & n.3. See O'Melveny & Myers v.
FDIC, 512 U.S. 79, 83-89 (1994) (explaining this Court's decision not to
graft a federal common-law exception onto a state statute in furtherance of
federal policy); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 866 (1984) (deferring to EPA's policy choices in upholding
air pollution regulations); Tex. Indus., Inc. v. Radcliff Materials, Inc., 451
U.S. 630, 647 (1981) (rejecting a request to add a federal common-law
rule of contribution to antitrust laws); Chicago & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 109-14 (1948) (explaining why a
Civil Aeronautics Board order regarding air transportation routes is not
subject to judicial review under the Civil Acronautics Act).
1]
uncertainty about the health and genetic consequences of even
small emissions like those concededly emitted by nuclear
power plants." Jd. at 74 (footnote omitted). Notably, the
Court credited findings of injury that were not based on
violation of agency-defined standards, and were, in fact, less
definitive than those of the district court in this case.
Similarly, the Third Circuit, citing Laidlaw, found in a
RCRA imminent and substantial endangerment case that
plaintiffs showed injury through reduced use of a river based
on concerns about pollution from a chromium-contaminated
waste site, without reference to violation of any agency
standard. Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399
F.3d 248, 256-6] (3d Cir. 2005). In that case, the court
specifically held that, in light of the text and intent of the
provision, a district court may not require "{pjroof of
contamination in excess" of agency-delineated standards to
establish liability under section 6972(a)(1)(B). Honeywell,
399 F.3d at 259-61. Since courts may not "raise the standing
hurdle higher than the necessary showing for success on the
merits in an action," Laidlaw, 528 U.S. at 181, plaintiffs need
not show violation of agency standards to demonstrate injury.
Even in cases involving EPA standards, courts are not
necessarily constrained by those standards in finding risk of
harm. In LaFleur v. Whitman, 300 F.3d 256, 269-71 (2d Cir.
2002), plaintiffs exposure to defendant's increase in
emissions was an injury-in-fact, notwithstanding that in the
worst case scenario, defendant's emissions would be "well
below the applicable" air quality standard established by EPA
under the Clean Air Act: "Actual exposure to increased levels
of SO> at one's workplace is certainly something more than an
‘identifiable trifle, even if the ambient level of air pollution
does not exceed the [National Ambient Air Quality
Standards]."’ /d. at 271 (citation omitted).
7 Although petitioner tries to distinguish cases against the government as
affording relaxed requirements for standing, Pet. 11-12, 14, those
12
While violations of agency standards, as in a case like
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149, 157 (4th Cir. 2000), might be "presumptively
harmful," Pet. 4, respondents neither sought nor received any
such presumption in this case. Rather, respondents
established injury-in-fact the traditional way, as befits a claim
drawn from common-law principles — through an array of
scientific evidence drawn from the affected citizens, experts,
and government officials.
3. Courts Are Competent To Assess Risks.
Petitioner's assault on the district courts' competence to
assess risks, see Pet. 15, is at odds with centuries of such fact-
finding. The First Circuit correctly rejected petitioner's thesis,
noting that federal courts have long been called upon to tackle
complex, highly technical issues in individual cases, as in the
patent field. Pet. App. 27a. In rejecting petitioner's standing
requirements relate only to redressability and immediacy, Massachusetts
v. EPA, 127 S. Ct. at 1453, and not to plaintiffs’ need to demonstrate a
concrete injury-in-fact, Defenders of Wildlife, 504 U.S. at 572 n.7.
® While petitioner attempts to portray a court run amok, unmoored from
agency determinations, the district court, did, in fact, consider evidence
from “politically accountable" agencies in finding injury. The court heard
extensive testimony from two federal environmental officials (Tr. Vol.
2-A, at 19-85; Tr. Vol. 2-B, at 2-86; Tr. Vol. 2-C, at 3-12; Tr. Vol. 3-A, at
25-85; Tr. Wol. 3-B, at 3-16) and three state environmental officials (Tr.
Vol. 3-B, at 17-82; Tr. Vol. 3-C, at 2-53; Tr. Vol. 4-B, at 48-72; Tr. Vol.
4-C, at 3-78; Tr. Vol. 5-A, at 4-38). The court also assessed the potential
for harm with reference to mercury "Reference Doses" developed by EPA.
Pet. App. 5a. The court further took into account the fact that sediment
mercury levels in the Penobscot River exceed guidelines developed by the
National Oceanic and Atmospheric Administration indicating potential
harm to organisms exposed to those levels. Pet. App. 54a-55a & n.13. In
finding plaintiffs’ avoidance activities reasonable, the court also noted that
plaintiffs’ members "relied on multiple sources of information, including
the [Maine Department of Environmental Protection], to support their
conclusion about the safety of using the River or consuming the fish and
shellfish in the River and Bay." Pet. App. 66a (citations omitted).
13
arguments, the court expressed confidence that Congress has
not asked federal courts to exceed their capabilities:
In our view, courts are capable of assessing
probabilistic injuries. | Moreover, nuisance
principles contribute heavily to the doctrinal
template that underbraces statutes like RCRA,
. 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.
Pet. App. 14a (citation omitted).
Under petitioner's interpretation of the statute, no court
could ever find standing in a RCRA citizen suit absent
violation of agency standards. This would negate the
purposes for authorizing an independent cause of action under
section 6972(a)(1)(B) and render the provision superfluous,
since every set of facts would also have to support a violation
of the traditional citizen suit provision, section 6972(a)(1)({A).
Finally, petitioner implies that the remedy ordered by the
district court ~ a study to determine the precise nature and
scope of the endangerment — somehow shows that the court
used the wrong legal standard for standing, since, it claims,
the study will belatedly make the demonstration that was
needed for injury-in-fact. Pet. 2, 3, 7, 16. The First Circuit
characterized this argument as an "attempted sleight of hand"
that "verges on the specious." Pet. App. 9a. Again, petitioner
would require more for standing than is required for liability.
As discussed in more detail in Part II infra, the standard for
liability is whether wastes may present an imminent and
substantial endangerment, not whether they do present such
an endangerment, a distinction found to be highly significant
by courts interpreting the statute. The district court's
14
August 10, 2005 order approving the study plan, as well as
the district court's conclusions on liability, make it clear that
the court is proceeding in phases, with appropriate restraint,
toward the most suitable remedy to fulfill the protechive
purposes of the statute. See Pet. App. 37a-38a, 69a.” The
First Circuit concurred in this evaluation:
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.
Pet. App. 9a.
In short, the courts below showed full respect for the
limits of Article II]. This case does not approach those limits.
Rather, the courts below have effectuated Congress's
considered choice to provide judicial redress where the
responsible agencies fail to carry out statutory goals:
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 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 II requires a cognizable
° Petitioner mischaracterizes the study order as ascertaining whether
mercury "may present an imminent and substantial endangerment,
Pet. 2, when the court actually says the study plan "is designed to
determine the extent of contamination downriver . . . and whether such
contamination endangers human health and the environment,” Pet. 7
(emphasis added), an important difference, as discussed in Part Il, infra.
we
15
injury; it does not speak to the wisdom of the
legislature's actions in providing redress for
that injury.
Pet. App. 13a-14a.
Accordingly, this Court should not grant the petition to
review the finding of standing.
II. THE LANGUAGE AND PURPOSE OF RCRA AND
ITS CITIZEN SUIT PROVISION COMPEL THE
INTERPRETATION OF THE "IMMINENT AND
SUBSTANTIAL ENDANGERMENT" LEGAL
STANDARD ADOPTED BY THE FIRST CIRCUIT
AND ALL OTHER CIRCUITS THAT HAVE
CONSIDERED THAT STANDARD.
The First, Second, Third, Fifth, and Eleventh Circuits
have all held unanimously that courts' “imminent and
substantial endangerment" authority under RCRA section
7002(a)(1)(B) should be liberally construed. See Pet. App.
15a-17a, 3la-32a; Dague v. City of Burlington, 935 F.2d
1343, 1355 (2d Cir. 1991) ("Significantly, congress used the
word 'may' to preface the standard of liability . . . . This is
‘expansive language’. . . ." (citations omitted)), rev'd in part
on other grounds, 505 U.S. 557 (1992); Interfaith Cmty.
Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 258-59 (3d Cur.
2005) (agreeing with other courts that the "operative word" is
"may," and that "if an error is to be made in applying the
endangerment standard, the error must be made in favor of
protecting public health, welfare and the environment.”
(quoting United States v. Conservation Chem. Co., 619
F. Supp. 162, 194 (W.D. Mo. 1985))); Cox v. City of Dallas,
256 F.3d 281, 299 (5th Cir. 2001) (noting, "[a]t the outset,"
that "the operative word is 'may™); Parker v. Scrap Metal
Processors, Inc., 386 F.3d 993, 1015 (ilth Cir. 2004)
(agreeing with other Courts of Appeals that the operative
word is "may," that "endangerment" does not require proof of
actual harm. and that the provision grants expansive authority
16
"to eliminate any risk posed by toxic wastes" (internal
quotations and citations omitted)); see also Albany Bank &
Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir.
2002) ("Imminence does not require an existing harm, only an
ongoing threat of future harm." (citing Cox, 256 F.3d at 299)).
Two other Circuits have upheld a similarly broad
interpretation of liability under section 7003, the parallel
provision giving EPA imminent and substantial endangerment
enforcement authority. United States v. Aceto Agric. Chems.
Corp., 872 F.2d 1373, 1383 (8th Cir. 1989) (noting that
RCRA is a remedial statute that should be liberally construed
and whose purpose is "to ‘give broad authority to the courts to
grant all relief necessary to ensure complete protection of the
public health and the environment. (quoting Conservation
Chem., 619 F. Supp. at 199)); United States v. Waste Indus.,
Inc., 734 F.2d 159, 165 (4th Cir. 1984) (rejecting the
proposition that "section 7003 was designed to control
pollution only in emergency situations"). Congress itself
declared that the provision was "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, at 59 (1983) (quoting United
States v. Price, 688 F.2d 204, 213-14 (3d Cir. 1982))
(emphasis added). No court of appeals has held to the
contrary.
Petitioner, however, urges this Court to manufacture a
new, more restrictive standard of liability, without basis in the
language of the statute, its purpose, or the combined wisdom
of all the appellate courts to consider the standard.
Petitioner's claims of future interference with the workings of
American industry and government are groundless, given the
uniform, uneventful application of the statute for more than
twenty years. '°
'° it bears noting that even if a court were to adopt the more polluter-
friendly legal standard urged by petitioner, that would not prevent the
17
A. The Lower Courts' Interpretation Implements
Congress's Grant Of Authority To Courts To
Protect Public Health And The Environment
Where Agencies Fail To Do So.
Petitioner first argues that the conventional "imminent and
substantial endangerment" legal standard usurps agency
policy-making power. Pet. 17-18. In support of this claim, it
cites no authority that goes beyond the "indisputable verity"
that "principal responsibility for implementing and enforcing
RCRA resides with EPA, not with citizens acting as private
attorneys general." Pet. App. 24a. Respondents agree that
EPA retains primary responsibility under RCRA to protect
human health and the environment. The citizen suit
provision, as interpreted by the courts below, is in full accord
with Congress's allocation of that responsibility.
In adding citizen suit provisions to all the major statutory
schemes that empower government agencies to shape and
direct environmental activities, Congress has recognized that
those agencies do not always carry out the statutory mandates.
Through each of these provisions, Congress has accorded
affected citizens purposefully delineated rights to invoke the
protection of the federal courts. See, e.g., Clean Water Act
§ 505, 33 U.S.C. § 1365; Clean Air Act § 304, 42 U.S.C.
§ 7604,"
purported harm that petitioner fears; courts would still be making
judgments about endangerment that do not rely on agency standards. The
same analysis applies in the Article II] context. Thus, petitioner seems
willing to endorse court determinations about harm, as long as they are
more favorable to its interests in avoiding liability.
'! “"'TJhe purpose behind the citizen suit provision [of the Clean Water
Act] was ‘to both goad the responsible agencies to more vigorous
enforcement of the anti-pollution standards and, if the agencies remained
inert, to provide an alternative enforcement mechanism." Student Pub.
Interest Research Group of N.J., Inc. v. Fritzsche, Dodge & Olcott, Inc.,
759 F.2d 1131, 1136 (3d Cir. 1985) (quoting Baughman v. Bradford Coal
Co.. 592 F.2d 215, 218 (3d Cir. 1979) (discussing Clean Air Act)).
18
In extending imminent and substantial endangerment
authority to citizens in 1984, Congress lamented EPA’s lack
of enforcement diligence:
Equally distressing is the inadequate effort by
the [EPA] with respect to criminal and civil
enforcement actions. Part of this problem is
due to insufficient personnel resources as well
as some deficiencies in existing law.
However, oversight hearings by the Committee
also indicate that the Agency has not been
diligent in vigorously pursuing a tough
enforcement program.
H.R. Rep. No. 98-198, pt. 1, at 20 (1983), as reprinted in
1984 U.S.C.C.A.N. 5576, 5579. Congress stated its belief
that "this expansion of the citizens suit provision will
complement, rather than conflict with, the Administrator's
efforts to eliminate threats as to public health and the
environment, particularly where the Government is unable to
take action because of inadequate resources." Jd. at 53, 1984
U.S.C.C.A.N. at 5612; see also S. Rep. No. 98-284, at 5
(1983) (noting limits on government's ability to address all
problem sites).
By definition, every RCRA citizen suit to address
potential imminent and substantial endangerment "second-
guess[es]" EPA actions or inactions. See Pet. 17. As the First
Circuit noted, EPA has four ways to preclude a citizen suit by
taking steps itself to remedy impending environmental harm.
Pet. App. 25a; see also RCRA § 7002(b)(2)(B), 42 U.S.C.
§ 6972(b)(2)(B). But if EPA fails to act as Congress
specifies, citizens may call on the courts to intervene upon a
finding that wastes may present an imminent and substantial
endangerment. A successful citizen suit thus corresponds to a
judgment that government has not acted effectively to prevent
harm to public health or the environment, as measured by
standards set by Congress.
19
As the First Circuit observed, the particulars of this case
illustrate the point that the traditional legal standard does not
subvert EPA's primacy in implementing and enforcing
RCRA. In this case, EPA failed to require downriver
remediation of mercury, and never finalized any so-called
"media protection standards." Pet. App. 25a. "Furthermore,
EPA has never taken the position — 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." Jd. In this context,
the First Circuit noted that the district court was sensitive to
separation-of-powers concerns, three times considering and
"thoughtfully reject[ing]" primary jurisdiction challenges,
while leaving open the possibility that primary jurisdiction
concerns could arise in the future. /d.
B. The Interpretation Of RCRA Uniformly Adopted
By The Courts Of Appeals Is Most Consistent With
Canons Of Statutory Construction.
1. Imminent And Substantial] Endangerment
Authority Is An Alternative And Supplement
To Other RCRA Remedies, Not Part Of An
Invented "Hierarchy Of Risks And Remedies."
Petitioner claims that it has discovered a never-before
elucidated hierarchy of risks and remedies within RCRA that
compels a stricter reading of the "imminent and substantial
endangerment" liability standard than any court has adopted.
This purported hierarchy is a chimerical construct that the
First Circuit correctly declined to credit. See Pet. App.
22a-24a.
Petitioner posits that RCRA's provisions describe three
distinct risk levels, each of which authorizes a remedy that
escalates in rigor as the risk increases. Pet. 18. According to
this argument, because imminent and __ substantial
endangerment authority results in "immediate injunctive
20
relief," liability must be limited to situations where the
potential risk is "so grave and likely that it warrants
immediate preventive action." Jd.
Petitioner's argument rests in the first instance on a
fundamental mischaracterization of the relief available in an
jmminent and substantial endangerment case. While the
statute gives the district court authority to "restrain" a party
that has contributed or is contributing to the activities
regarding the waste at issue, and to order a party “to take such
other action as may be necessary," 42 U.S.C. § 6972(a), a
district court has its usual discretion to order a full range of
remedies, from a study (as the district court below ordered)
through immediate cleanup. A court is by no means required
to order remediation, or any other particular form of relief.
See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)
("The grant of jurisdiction to ensure compliance with a statute
hardly suggests an absolute duty to do so under any and all
circumstances, and a federal judge sitting as chancellor is not
mechanically obligated to grant an_ injunction for every
violation of law." (citations omitted)). 3
The legislative history confirms the plain import of the
provision. At the same time that Congress enacted section
7002(a)(1)(B), it confirmed (in discussing EPA's parallel
authority under section 7003) that imminent and substantial
endangerment authority provides an independent mechanism
for district courts to order discretionary remedies:
Section 7003 is an alternative and supplement
to other remedies. Nevertheless, section 7003
provides for the awarding of equitable relief
and, as with any equitable remedy, requires the
'2 Petitioner's arguments are based on the faulty assumption that the
availability of immediate injunctive relief must mean the standard for
liability is heightened. Petitioner then complains that the distnct court's
ordering of a study, instead of immediate cleanup, somehow demonstrates
that liability was wrongly adjudged. Compare Pet. 18 with id. at 16.
21
court to consider all circumstances of the case
and to carefully balance all relevant factors.
S. Rep. No. 98-284, at 59 (1983) (citation omitted) (emphasis
added). In fact, section 7003 begins with a declaration of its
independence from other provisions of RCRA
("Notwithstanding any other provision of this chapter, . . .").
For this reason alone, the hierarchy crumbles. 6
An examination of the EPA actions that may preclude an
"imminent and substantial endangerment" citizen suit further
refutes petitioner's theory that liability must be reserved for
the most dire situations requiring immediate cleanup. For
example, citizens may not bring suit if EPA “has incurred
costs to initiate a Remedial Investigation and Feasibility
Study under section 104 of the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 [42 U.S.C. § 9604] and is diligently proceeding with a
remedial action under that Act." See 42 USC.
§ 6972(b)(2)(B)(iii). That those activities may bar citizen
action shows that Congress considered a study to determine
appropriate remediation (well short of "immediate preventive
action," Pet. 18) as a suitable response to wastes that may
present an imminent and substantial endangerment. The
orders of the district court below reflect such a response.
RCRA contains no “graduated scale of risks and
responses." Pet. 18. Congress conferred “imminent and
substantial endangerment" authority to ensure complete
protection against threats from dangerous wastes, irrespective
of other remedies provided for in the statute. The provision
'5 Nor is it even obvious that the levels of risk fail into the neat pattern
petitioner conjures up. Why does the phrase "poses a substantial potential
risk to human health,” 42 U.S.C. § 6939a(b)(2) (emphasis added),
necessarily denote a lower level of risk than "may present an imminent
and substantial endangerment to health or the environment,” id.
§ 6972(a\1)(B) (emphasis added)? Congress evinced no intent to rank
these provisions, and the First Circuit correctly rejected "the mechanical
cross-referencing” proposed by petitioner. Pet. App. 22a.
22
authorizes district courts to respond with discretionary relief
appropriate to the level of risk, and to gather information as
needed before the risk can be abated responsibly.
2. The First Circuit's Interpretation Preserves
The Independent Applicability Of Two Types
Of RCRA Citizen Suits.
Petitioner's claim that the First Circuit's interpretation
renders the bifurcation of the citizen suit provision
superfluous rests on its persistent mischaracterization of the
legal standard applied by the court. According to petitioner,
the First Circuit upheld a liability standard that amounts to
any "non-de minimis risks." Pet. 20. That is far from the
standard applied by either of the courts below. The district
court imposed liability based on evidence that "clearly
demonstrated that the Penobscot River is contaminated with
mercury through the mouth of the River and into the Bay."
Pet. App. 61a (citation omitted).
Reliable evidence further established that
mercury levels are elevated in Penobscot
downriver sediments, that mercury is
methylating downriver, and that such
methylmercury is bioavailable, entering biota,
and biomagnifying throughout the food web.
As aresult, dangerously high levels of mercury
may be present in Penobscot fish and other sea
food consumed by the public. These elevated
body burdens of mercury may also present an
imminent and substantial endangerment to the
environment.
Id. (citations omitted).
The First Circuit held that an imminent and substantial
endangerment "requires a reasonable prospect of a near-term
threat of serious potential harm," finding that the district court
made “supportable findings" about mercury toxicity and
23
methylation "that suffice to bring this case within the compass
of that standard." Pet. App. 32a (citations omitted) (emphasis
added).
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 tur,
these findings support a conclusion that, as the
district court held, there may be an imminent
and substantial endangerment to the lower
Penobscot River.
Id. (emphasis added).
That the courts below relied on explicit findings of serious
threats to human health and the environment from persistent
mercury contamination refutes petitioner's argument that the
legal standard endorsed below would support liability under
section 7002(a)(1)(B) for virtually any set of facts also
supporting a claim under section 7002(a)(1)(A). A plainuff
need not show a risk of serious harm in a case brought under
section 7002(a)(1)(A) for violations of agency mandates,
because such violations are presumptively harmful (as
petitioner argues elsewhere with respect to standing, Pet. 12).
Evidence of violations of RCRA's regulatory requirements
can often be proved merely by referencing public monitoring
or inspection records. In such a case, plaintiffs may lack
independent evidence of potential endangerment to human
health or the environment (which generally requires expert
testimony, as in the case below).
The two types of suits can also be precluded by different
government activities. So, for example, a citizen may
maintain a suit under section 7002(a)(1)(A) for violation of a
permit, even if EPA has issued an order pursuant to which a
polluter is proceeding with a remedial action at a site.
Compare 42 U.S.C. § 6972(b)(1)(B) (providing that a citizen
suit for a permit violation may be precluded only by a
24
government suit to require compliance with that permit) with
42 U.S.C. § 6972(b)(2)(B)(iv) (providing that a citizen suit
for imminent and substantial endangerment may be precluded
by an EPA-ordered remedial action).
Finally, the two provisions may afford distinct types of
relief. Under section 7002(a)(1)(A), a court may enforce the
permit, regulation, or other requirement that is being violated,
and may assess civil penalties under 42 U.S.C. § 6928(g).
Under section 7002(a)(1)(B), a court may order equitable
remedies as needed, but courts are divided over whether civil
penalties are available. Compare Tanglewood E.
Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1574
(5th Cir. 1988) (penalties available) with Commerce Holding
Co. v. Buckstone, 749 F. Supp. 441, 445 (E.D.N.Y. 1990)
(penalties not available).
Thus, both citizen suit provisions retain vitality under the
First Circuit's interpretation of RCRA.
3. The First Circuit's Interpretation Harmonizes
RCRA's Uses Of Statutory Terms.
Petitioner scrambles statutory provisions, legislative
history, and case law in an attempt to show inconsistencies in
the interpretations of section 7002(a)(1)(B) and section 7003.
Pet. 21-23. This argument requires deliberate blindness to
differences in language and to changes in the "imminent and
substantial endangerment” provisions over time, relative to
each other and to courts’ pronouncements on their meaning.
Petitioner's claims falter for at least three reasons.
First, petitioner errs when it argues that the First Circuit's
interpretation strips the phrase "imminent and substantial
endangerment” of its intended meaning. As discussed above,
the courts below found liability based on evidence of serious
threats from a highly toxic chemical that currently permeates
the Penobscot ecosystem, thus attributing proper significance
to the modifiers "imminent" and "substantial." Moreover,
Fim
petitioner ignores the operative import of the word "may,"
which all courts agree must be read to temper the statutory
standard. See Pet. App. 16a-17a; Honeywell, 399 F.3d at 258-
59; Parker, 386 F.3d at 1015; Cox, 256 F.3d at 299; Dague,
935 F.2d at 1355; Waste Indus., 734 F.2d at 165.
Accordingly, the stated impact of the modifiers "imminent
and substantial" on the construction of the phrase "will
endanger" by the courts in Ethyl Corp. v. EPA, 541 F.2d 1, 20
n.36 (D.C. Cir. 1976) (en banc), and Reserve Mining Co. v.
EPA, 514 F.2d 492, 528 (8th Cir. 1975) (en banc), does not
fully inform the statutory standard in the citizen suit at issue
here: "may present an imminent and_ substantial
endangerment." Cf Pet. 21.
Second, petitioner neglects to reveal that section 7003 was
amended before Congress enacted the citizen suit provision
modeled after that authority. Even if Congress drew from
such cases as Ethyl Corp. and Reserve Mining in 1976, when
adopting the original version of section 7003, it later made a
significant amendment. In 1980, Congress changed the
language from "is presenting .. ." to "may present... ," a
change the First Circuit concluded "fundamentally altered
how this provision was understood." Pet. App. 28a; see Solid
Waste Disposal Act Amendments of 1980, Pub. L. No. 96-
482, 94 Stat. 2334. Again, this is consistent with the
prevailing view that "may" is the operative word in the
statute.
Legislative history from the 1984 amendments, when
section 7002(a)(1)(B) was adopted, is thus much more
probative of how section 7003 was understood at the time
than 1976 legislative history regarding the earlier, more
stringently worded provision. As the First Circuit observed,
discussions in both the House of Representatives and the
Senate took note of the expansive powers conveyed to the
government through section 7003. Pet. App. 28a-29a.
Indeed, in discussing the liability standard under section
7003, the Senate Report "enthusiastically" quotes Price, 688
26
F.2d at 214, for the proposition that section 7003 is aimed at
eliminating any risks posed by toxic wastes. Pet. App. 29a &
n.13; see also S. Rep. No. 98-284, at 59 (1983). The 1984
Congress did not misunderstand the liability standard of the
1976 Congress, Pet. 22; it was modeling the new citizen suit
provision on a broader liability standard as amended by the
1980 Congress.
Third, petitioner proposes that words in a statute must
always have the same meaning, so that the word
"endangerment" in the citizen suit provision must mean the
same as the word “endangerment" in RCRA's criminal
provision, section 3008(e), 42 U.S.C. § 6928(e). Pet. 22.
This is doubly misguided. This Court recently rejected such a
proposition in its unanimous opinion in Environmental
Defense v. Duke Energy Corp., 127 §.Ct. 1423 (2007),
interpreting the word "modification" in different provisions of
the Clean Air Act:
[T]he “natural presumption that identical
words used in different parts of the same act
are intended to have the same meaning... is
not rigid and readily yields whenever there is
such variation in the connection in which the
words are used as reasonably to warrant the
conclusion that they were employed in
different parts of the act with different intent."
A given term in the same statute may take on
distinct characters from association with
distinct statutory objects calling for different
implementation strategies.
Id. at 1432 (citation omitted). This is such a situation: The
First Circuit noted that there is "no meaningful parallelism"
between the civil and criminal provisions petitioner seeks to
compare. Pet. App. 22a. The court further observed that if
one were to import petitioner's definition of “endangerment”
from section 3008(e), where it is claimed to denote "imminent
27
danger of death or serious bodily injury," the word
"imminent" in section 7002(a)(1)(B) "would be rendered
utterly redundant — the statute would, in effect, require an
imminent imminence — thus transgressing the very canon of
construction that [petitioner] labors to invoke." Pet. App.
22a-23a.
In short, it is petitioner's argument, not the First Circuit's
interpretation, that does violence to canons of statutory
interpretation. The standard of liability in the citizen suit
provision is fully consistent with the parallel standard in
section 7003, as understood by Congress and interpreted by
the courts.
C. RCRA's Citizen Suit Provision, As Uniformly
Interpreted By The Courts Below For Over
Twenty Years, Has Protected Public Health And
The Environment, Properly Allocated Costs Of
Contamination To Polluters, And Complemented
Agency Enforcement.
In a last-ditch effort to capture this Court's attention,
petitioner presents a dramatic picture of American industry on
its knees, and the thwarting of both congressional and agency
will, as a result of the First Circuit's ruling. Petitioner fails to
explain why this decision will be the one to spark this chaos,
when courts have been interpreting RCRA consistently for the
past twenty years. The standard applied by the First Circuit
has been uniformly followed by appellate courts at least since
the Second Circuit decided Dague in 1991, yet there has not
been a resulting proliferation of RCRA citizen suits.'* In
fact, a recent study reported that, between 1995 and 2000,
only seventeen citizen suits were brought under RCRA,
'4 Even before Dague, district courts were adopting the broad standard
since endorsed by the appellate courts. See, e.g., Middlesex County Bd. of
Chosen Freeholders v. N.J. Dep't of Envtl. Prot., 645 F. Supp. 715, 721-
22 (D.N.J. 1986) (quoting legislative history and Price, 688 F.2d at 213, in
support of an expansive reading of the citizen suit provision).
tJ
Go
compared to 252 citizen suits brought under the Clean Water
Act in the same time period. Kristi M. Smith, Who's Suing
Whom?: A Comparison of Government and Citizen Suit
Environmental Enforcement Actions Brought Under EPA-
Administered Statutes, 1995-2000, 29 Colum. J. Envtl. L.
359, 386 (2004).'° These data reveal that the standard
applied by the lower courts has not had the "significant and
far-reaching affects [sic]" on industry suggested by petitioner.
Pet. 25.
Petitioner bemoans the burdens on industry attempting to
plan for the costs of RCRA citizen enforcement, worrying
that "{t]he high risk of litigation in this broad class of cases
alters the manner in which businesses evaluate the cost of
industrial development ...." Pet. 23. In light of the small
number of RCRA citizen suits, this concern is overblown.
But petitioner also misses the point that environmental
regulation and enforcement are intended to apportion costs of
pollution to those who profit from the polluting activities.
RCRA, like other environmental laws, compels businesses to
internalize the costs of their actions. Without such regulation,
industry will pass on the environmental costs of production to
society in order to maximize its profits. Zygmunt J.B. Plater,
Dealing With Dumb and Dumber: The Continuing Mission of
Citizen Environmentalism, 20 J. Envtl. L. & Litig. 9, 18
(2005). These costs, however, do not disappear without
regulation; they are borne by innocent citizens rather than the
industry that created them. /d. at 23. Citizen suits under
RCRA and other environmental laws help ensure that the full
costs of production are assumed by profiting industries. See
id. at 25-27.
Petitioner also raises the specter of unconstrained,
"irrational" citizen enforcement. Pet. 24. Again, petitioner
'S Because the study aggregated suits brought under both citizen suit
provisions of RCRA, it is likely that the number of "imminent and
substantial endangerment” suits was even lower than seventeen.
29
cannot point to a proliferation of such enforcement in the
years since the liability standard applied by the First Circuit
below was first articulated by the Second Circuit. This may
be in part because it is not an easy matter to maintain an
action for potential imminent and substantial endangerment.
The record in this case represents years of work, including
substantial contributions by paid experts, prior to any finding
of liability. There are other deterrents to bringing
unwarranted claims. For example, if a court finds that a
plaintiff's suit is "frivolous, unreasonable, or groundless, or
that the plaintiff continued to litigate after it clearly became
so," courts can award attorney's fees to defendants. See
Christiansburg Garment Co. v. Equal Employment
Opportunity Comm'n, 434 U.S. 412, 422 (1978); Razore v.
Tulalip Tribes of Wash., 66 F.3d 236, 240 (9th Cir. 1995)
(finding that the Christiansburg standard applies in RCRA
and Clean Water Act citizen suits).
Finally, petitioner argues once more that citizen suits may
encroach on proper agency enforcement. As discussed in
more detail above, Congress recognized gaps in government
enforcement, and purposefully empowered federal courts to
consider citizen complaints.'® Congress endorsed an
expansive reading of "imminent and __ substantial
endangerment" authority, with a primary intent "to protect
public health and the environment." S. Rep. No. 98-284, at
59 (1983); see also Pet. App. 28a-29a. In granting district
courts broad discretion to remedy threats from toxic wastes,
Congress considered the effects on agency enforcement, and
concluded that the results would be beneficial. H.R. Rep.
No. 98-198, pt. 1, at 53 (1983), as reprinted in 1984
' Citizen suits are important to counter agency “capture,” which occurs
when regulating agencies succumb to political or other pressures and
make regulatory choices that benefit industry at the expense of public
health and the environment. See Matthew D. Zinn, Poiicing
Environmental Regulatory Enforcement: Cooperation, Capture, and
Citizen Suits, 21 Stan. Envtl. LJ. 81, 108, 126-27, 146-47 (2002).
30
U.S.C.C.A.N. 5576, 5612; see also S. Rep. No. 98-284, at 5
(1983). While petitioner might prefer a more limited role for
citizens and federal courts, Congress has chosen otherwise.
Far from being a pressing question of federal law, the
long-standing interpretation of RCRA's “imminent and
substantial endangerment" citizen suit provision, properly
applied by the courts below to a threat of serious harm that
was left unaddressed by government agencies, has
engendered no debate in the courts, no proliferation of
lawsuits, and no amendment by Congress since it was adopted
in 1984. The Court should deny the petition.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be denied.
Respectfully submitted,
ErIc J. UHL MITCHELL S. BERNARD*
Moss & SHAPIRO, P.A. NANCY S. MARKS
400 Congress Street NATURAL RESOURCES
4th Floor DEFENSE COUNCIL, INC.
Portland. ME 04101 40 West 20th Street
(207) 774-6001 New York, NY 10011
(212) 727-2700
Counsel for Respondents
June 20, 2007 * Counsel of Record
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