LA Env Actn Ntwrk v. EPA ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 1999 Decided March 26, 1999
No. 98-1082
Louisiana Environmental Action Network and
Environmental Technology Council, Inc.,
Petitioners
v.
United States Environmental Protection Agency,
Respondent
American Petroleum Institute, et al.,
Intervenors
On Petition for Review of an Order of the
Environmental Protection Agency
David R. Case argued the cause for petitioners. With him
on the briefs was David J. Lennett.
Mary F. Edgar, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Lois J. Schiffer, Assistant Attorney General, and Steven
Silverman, Attorney, U.S. Environmental Protection Agency.
William R. Weissman argued the cause for intervenor
Edison Electric Institute, et al. With him on the brief were
Steven J. Groseclose, George W. Frick, Ralph J. Colleli,
David F. Zoll and Ronald A. Shipley.
Before: Williams, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Opinion by Circuit Judge Sentelle, concurring in part and
dissenting in part.
Williams, Circuit Judge: Section 3004(m) of the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C.
s 6924(m), requires the Environmental Protection Agency to
promulgate regulations governing what treatment certain
kinds of hazardous waste must undergo before it may be
disposed of in a landfill. EPA found that waste already in a
landfill presented a special problem. The agency's authority
to compel high-quality disposition of such waste is not as
great as it is for as yet undisposed of waste. As a result, too-
strict treatment regulations could in some circumstances dis-
courage excavation--and thus prevent any treatment at all.
Because of its concern for this, EPA promulgated a regula-
tion under s 3004(m) allowing variances from generally appli-
cable treatment standards if "treatment to the specified level
or by the specified method is environmentally inappropriate
because it would likely discourage aggressive remediation."
62 Fed. Reg. 64,509/3 (1997). Petitioners Louisiana Environ-
mental Action Network ("LEAN") and Environmental Tech-
nology Council ("ETC") petitioned for review of this new
variance rule; we deny the petition to the extent it is ripe.
* * *
Standing first. Petitioners defend only the standing of
LEAN; despite its participation in oral argument and evident
interest in the case, ETC (a waste treatment company trade
association formerly known as the Hazardous Waste Treat-
ment Council) appears to lack prudential standing. See, e.g.,
Hazardous Waste Treatment Council v. Thomas, 885 F.2d
918, 925 (D.C. Cir. 1989) ("HWTC IV") (because of concern
that "judicial intervention may defeat statutory goals if it
proceeds at the behest of interests that coincide only acciden-
tally with those goals," firms selling environmental services
lack standing to challenge RCRA regulations as insufficiently
stringent); Hazardous Waste Treatment Council v. EPA
("HWTC II"), 861 F.2d 277, 283 (D.C. Cir. 1988) (same).
LEAN, by contrast, evidently an organization of environmen-
tally concerned citizens and groups, clearly meets prudential
standing requirements. It rests its claim of "injury in fact"
(essential for constitutional standing) on the interests of at
least three members who live near the Carlyss landfill in
Louisiana. This is the site at which most waste from that
state would be "land disposed" if excavated and treated.
Under LEAN's theory, "lower quality" (less treated) wastes
will be deposited in Carlyss; the rule in literal terms permits
that effect, and holders of hazardous waste have every incen-
tive to take advantage of it. Under EPA's theory the new
rule will increase the quantity of waste disposed of at Carlyss,
for it adopted the rule lest holders of hazardous waste who
were free to choose would forego costly excavation and redis-
posal (with the likely destination, in Louisiana, of Carlyss) in
favor of thriftier in-place solutions. Either way, application
of the variance rule will lower the average quality of waste
deposited at Carlyss, and under EPA's view its application
will also increase the quantity of such waste. Thus, to the
extent that there is any residual risk in the lower-quality
wastes, application of the rule will increase the risk of harm
to LEAN members living near Carlyss.
While our partially dissenting colleague doubts that such
harm is sufficiently imminent, we do not. Petitioners have
noted that in the state of Louisiana there are over 100
inactive or abandoned hazardous waste sites for which clean-
up has already been found necessary, as well as about thirty
RCRA facilities designated "high priority." It is therefore all
but certain that remediation activities will continue to occur
apace. Even if the variance-to-remediation ratio is fairly low,
the amount of such activities creates a very "substantial
probability" that some variances will be granted, increasing
risk to LEAN members near the Carlyss site. See Florida
Audubon Society v. Bentsen, 94 F.3d 658, 666 (D.C. Cir.
1996).
What is novel here is that LEAN must surely have (indeed,
counsel at oral argument confirmed that it did have) other
members who live nearer to the landfills in which waste
currently resides--waste that would, absent the waiver rule's
preference for excavation, treatment and redisposal, remain
in place and continue to entail some risk for these LEAN
members. Indeed, as the waiver rule is aimed at "cases
where imposition of the otherwise applicable treatment stan-
dard could result in a net environmental detriment by dis-
couraging aggressive remediation," 62 Fed. Reg. 64,505/3
(1997) (emphasis added), these other members might well be
harmed more by continuation of the status quo than those
living near the Carlyss landfill are benefited.1
We have previously held that such a conflict of interest
within an organization does not deprive the organization of
representative standing if no internal procedural violation has
been shown. National Maritime Union v. Commander,
Military Sealift Command, 824 F.2d 1228, 1232-34 (D.C. Cir.
1987). But see Retired Chicago Police Ass'n v. City of
Chicago, 76 F.3d 856, 864-65 (7th Cir. 1996) (as burden to
show standing is on plaintiff, plaintiff organization must dem-
onstrate proper authorization of litigation if profound conflict
of interest is present). Conceivably one might distinguish
National Maritime Union on the ground that here we have
an entity on the scene, ETC, with very real economic inter-
ests but no standing. The risk of some possible manipulation
__________
1 LEAN claims that it does not oppose EPA's decision to grant
variances on the ground that the baseline requirement is so strin-
gent as to discourage aggressive remediation (e.g. excavation). But
it does object to EPA's consideration of this excessive-stringency
possibility in actually determining the content of a variance. Thus
the outcome it seeks would likely be very similar to the status quo
ante rule, i.e., standards that inhibit remediation.
will occur even to the most naive. Nevertheless, because of
the line-drawing difficulties that any such distinction would
generate, we believe that in the absence of any overt signal
that LEAN's decision to challenge the rule is the product of
ETC's influence, National Maritime Union should control.
As LEAN's primary purpose is likely to protect the overall
health of Louisiana's environment, one might question the
organization's standing on germaneness grounds. See Hunt
v. Washington State Apple Advertising Comm'n, 432 U.S.
333, 343 (1977) ("the interests [the organization] seeks to
protect [must be] germane to the organization's purpose").
But by LEAN's own description, "LEAN's purpose is to
protect Louisiana's air, land, water, and other natural re-
sources, and to protect LEAN's members and other citizens of
the state, from threats posed by pollution." Petitioners'
Certificate as to Parties (emphasis added). Indeed, we see no
reason to believe that LEAN's purposes are exclusively
other-regarding. All non-trivial policy issues entail trade-
offs, and LEAN may legitimately object to decisions that
injure its members' environmental interests, no matter what
the overall calculus. That being the case, National Maritime
Union controls this issue as well. Organizations, like people,
may face the problem of "two souls in one breast," but--as
long as they do not violate internal procedures--they are free
to choose for themselves which purpose to pursue on any
specific occasion. That LEAN may act against its other-
regarding purposes is no more a bar to standing than that it
acts against the self-interest of some of its own members.
* * *
Section 3004(m)(1) provides, in relevant part, that
the Administrator shall ... promulgate regulations spec-
ifying those levels or methods of treatment, if any, which
substantially diminish the toxicity of the waste or sub-
stantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-
term threats to human health and the environment are
minimized.
42 U.S.C. s 6924(m)(1).
In the preamble to its new variance rule, EPA stated that
in considering whether a particular variance complies with
this language, it may consider "the risks posed by the contin-
uation of any existing land disposal of the untreated waste,
that is, the risks posed by leaving previously land disposed
waste in place." 62 Fed. Reg. 64,506/2 (1997). Further, in an
apparent illustration of specific factors it might look to in
selecting the right level for a specific variance, EPA men-
tioned "disposal of treatment residues in a subtitle C land-
fill"--that is, a landfill subject to the hazardous waste dispos-
al controls of RCRA s 3004 et seq. Id. LEAN argues that
both considerations are improper under the statute.
Whether EPA's words qualify as a "regulation" under
RCRA's judicial review provision, 42 U.S.C. s 6976(a)(1) (pro-
viding review within 90 days of action promulgating "regula-
tion"), depends on three factors: EPA's own characterization,
whether it published the language in the Federal Register or
the Code of Federal Regulations, and whether the action has
binding effect on either private parties or EPA. See Florida
Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir.
1998). (The first two factors are, of course, the best indica-
tion of the third.) The EPA argues that this is a reviewable
"regulation" and has published the contested material in the
Federal Register, and we see nothing in the actual language
that would indicate that it intended something less than an
official, binding interpretation of the statute.
LEAN's challenge must also satisfy ripeness requirements.
But as Congress has provided immediate review of RCRA
regulations, see 42 U.S.C. s 6976(a)(1), we need only find that
the issue is fit for judicial review. See George E. Warren
Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998) ("Where the
[fitness] prong of the Abbott Laboratories ripeness test is met
and Congress has emphatically declared a preference for
immediate review ... no purpose is served by proceeding to
the [hardship] prong."). Fitness for judicial review is based
on "whether the issue is purely legal, whether consideration
of the issue would benefit from a more concrete setting, and
whether the agency's action is sufficiently final." Id. at 621. With respect to these first questions--whether the statute
entirely bars EPA from consideration of certain factors--all
three criteria indicate fitness for review and, accordingly,
ripeness.
On the merits: in the words of Chevron, "the statute is
silent or ambiguous with respect to the specific issue" of
whether the "threats" to be "minimized" under s 3004(m)
may include the threat posed by leaving waste where it
currently is. Chevron v. NRDC, 467 U.S. 837, 843 (1984).
LEAN's argument here appears to be that because s 3004(m)
only regulates waste to be disposed of in new landfill sites (a
point that is not disputed), it follows that the only "threats" to
be considered and "minimized" are threats from waste in such
a new site. This appears a complete non sequitur. It seems
far more natural to suppose that in a statute enacted to
protect human health and the environment, Congress intend-
ed to direct EPA to keep its eye on this underlying goal,
rather than to use purely artificial benchmarks for inquiring
whether threats are truly "minimized." Not only does the
statute not resolve the specific issue contrary to EPA's
resolution, but the latter is plainly reasonable in light of the
statutory language and structure.
We also find that Congress has not barred EPA, in its
determination whether the "minimize[ ]" language is satisfied,
from considering the protective effect of eventual disposal in
a subtitle C landfill. LEAN's argument to the contrary
depends on our decision in American Petroleum Institute v.
EPA, 906 F.2d 729, 735-36 (D.C. Cir. 1990) ("API"). LEAN
evidently reads this case to foreclose EPA from considering
in any way the protective characteristics of the waste's place
of ultimate deposit. But API held only that, because land
disposal pursuant to s 3004(m)(2) is dependent upon compli-
ance with the s 3004(m)(1) treatment requirement, land dis-
posal itself cannot constitute the "treatment" required to
satisfy s 3004(m)(1). Id. Thus, API makes clear that in
measuring whether the "treatment" required will "substan-
tially diminish" toxicity or "substantially reduce" the likeli-
hood of migration, EPA must look to the (pre-disposal)
treatment. EPA does not dispute this, even in the variance
context. But as to whether EPA may look more broadly in
determining if the overall effect is to "minimize[ ]" threats,
API says nothing. Although LEAN points to another, later
rulemaking in which EPA appears to have read the mandate
of API more broadly, see 63 Fed. Reg. 28,607/3 (1998), a
possible later error is no basis for us to upset the present
rule.
Nor do we find EPA's interpretation here unreasonable in
light of the statute's language and structure. It would be
senseless to make EPA, in attempting to protect human
health and the environment, ignore the eventual disposal
site's likely effect: such a restriction would deprive EPA of
any basis from which to estimate the actual risk likely to be
imposed on the outside world.
We thus reject these challenges on the merits.
* * *
LEAN appears to make two additional challenges. It first
claims that something in the present rule violates the "sub-
stantially diminish ... substantially reduce" language of
s 3004(m)(1). But, apart from LEAN's claims as to what the
statute categorically excludes from consideration in assessing
the "minimiz[ation]" required by the section, the issue of
whether a particular treatment brings about substantial dimi-
nution or reduction--although concededly a restriction on
whatever treatment is approved--cannot be decided without
particular challenged treatments before us. Accordingly, we
find the issue unfit for judicial review at this time.
LEAN next argues that EPA's risk calculations will be
unfairly compromised by its improper refusal to exercise its
power to force excavations of hazardous waste. But when
prompted at oral argument, counsel for petitioners was un-
able to point to any language indicating EPA's intention to do
such a thing, and counsel for EPA denied any such intent.
We see no ripe case or controversy here.
We dismiss these unripe challenges.
* * *
We find no reason to disturb EPA's decision. We dismiss
the petition in part and deny the remainder.
So ordered.
Sentelle, Circuit Judge, concurring in part and dissent-
ing in part: I wholly concur in the portion of my colleagues'
opinion and judgment that dismisses the diminution or reduc-
tion and risk calculation claims of Louisiana Environmental
Action Network as unripe. As to the portion of the opinion
denying the remainder of the petition, I do not disagree with
their view of the merits; I simply do not think we can
properly reach the merits at all. I am not at all convinced
that petitioners have carried their burden of establishing that
they have standing to challenge the RCRA regulations.
In order to satisfy the "essential and unchanging" standing
predicate to any exercise of the jurisdiction of an Article III
court, a litigant must establish the "irreducible constitutional
minimum of standing," by demonstrating that it has suffered
a "concrete and particularized" injury that is (1) "actual or
imminent," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992), (2) caused by or fairly traceable to an action that the
litigant challenges in the litigation, see Allen v. Wright, 468
U.S. 737, 752 (1984), and (3) redressable by the court in the
action, see Simon v. Eastern Ky. Welfare Rights Org., 426
U.S. 38 (1976). We require a plaintiff or petitioner to show
that the injury is current, or "at least imminent" in order to
avoid the possibility that the court may be "unconstitutionally
render[ing] an advisory opinion by 'deciding a case in which
no injury would have occurred at all.' " Florida Audubon
Soc'y v. Bensen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting
Defenders of Wildlife, 504 U.S. at 564 n.2). A speculation of
harm is not sufficient to demonstrate the concrete, particular-
ized injury necessary for constitutional standing. Simon, 426
U.S. at 44 ("[U]nadorned speculation will not suffice to invoke
the federal judicial power.").
That the current injury is speculative is demonstrated by
the very terms in which it is expressed. As the majority
describes the injury, the most that LEAN has demonstrated
is that three of its members live near a site "at which most
waste from [Louisiana] would be 'land disposed' if excavated
and treated." Maj. op. at 3. The majority relies solely on
the fact that there are approximately 100 sites in Louisiana
for which cleanup has been found necessary as grounds for
concluding that it is "all but certain that remediation activities
will continue to occur apace." Id. From this conclusion, the
majority opines that "[e]ven if the variance-to-remediation
ratio is fairly low, the amount of such activities creates a very
'substantial probability' that some variances will be granted."
Id. at 3-4. However, neither the majority, nor anyone else,
can say whether the variance-to-remediation level will be
high, low, or even zero. The majority correctly concludes
that the record evidence indicates that there is a "substantial
probability" that remediation will occur in the future at sites
in Louisiana. However, it improperly leaps from this well-
supported proposition to the wholly unsupported conclusion
that, as part of any future remediation at sites in Louisiana,
"some variances will be granted," adversely affecting the
interests of the named LEAN members. Assent to this
latter proposition requires a grand leap of faith since we can
only speculate concerning whether EPA will grant variances
for sites in Louisiana. Indeed, there is no record evidence
indicating that any of the sites referenced by the majority
would be suitable candidates for variances under EPA's new
program, since EPA has not yet acted to grant or deny a
single variance. For these reasons, I can only conclude that
petitioners' alleged injury is speculative at best.
The purely speculative variety of failed standing occurs
most frequently where, as here, petitioners are attacking an
action of an agency or other entity which they contend is
likely to encourage some third party not before the court to
take some action which would be detrimental to plaintiffs and
might possibly occur if that third party acts upon the encour-
agement. The Supreme Court has discussed this proposition
in a number of decisions, including Warth v. Seldin, 422 U.S.
490 (1975). In Warth, the Court opined that in litigation
challenging the governmental regulation of one party on the
basis that it causes harm to a third party, "the indirectness of
the injury does not necessarily deprive the person harmed of
standing to vindicate his rights. But, it may make it substan-
tially more difficult to meet the minimum requirement of
article III: to establish that, in fact, the asserted injury was
the consequence of the defendants' actions or that prospective
relief will remove the harm." Id. at 505. All the more
difficult where, as here, it is speculative that the harm will
occur at all. In Florida Audubon Society v. Bensen, 94 F.3d
658 (D.C. Cir. 1996), we held that plaintiffs had not demon-
strated standing where they had not shown that it was
substantially probable that the promulgation of the alleged
incentive toward the third party would cause the speculated
injury. Here there is no such showing and no standing.
In short, I would hold that plaintiffs have not demonstrated
that they meet the constitutional minimum of a concrete,
particularized injury or that any such injury is caused by the
acts of a defendant of which they complain. Instead of
denying the petition, I would dismiss it.