In re: Idaho Conservation League

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2015 Decided January 29, 2016
No. 14-1149
IN RE: IDAHO CONSERVATION LEAGUE, ET AL.,
PETITIONERS
On Petition For Writ of Mandamus to the
United States Environmental Protection Agency
Amanda W. Goodin argued the cause for petitioners. With
her on the petition for writ of mandamus, the reply thereto, and
the supplemental brief was Jan Hasselman.
John E. Sullivan, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the opposition to
the petition of writ of mandamus and supplemental submission
was John C. Cruden, Assistant Attorney General.
Michael S. Giannotto argued the cause for movant-
intervenor National Mining Association. With him on the
opposition to the petition for writ of mandamus and
supplemental brief were Matthew M. Hoffman and Brian T.
Burgess.
Kevin A. Gaynor, John P. Elwood, Jeremy C. Marwell, and
Joshua S. Johnson were on the opposition to the petition for writ
of mandamus and the responsive supplemental brief of movant-
intervenor Freeport-McMoRan Inc.
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Michael W. Steinberg, Leslie A. Hulse, Stacy R. Linden, and
Matthew A. Haynie were on the opposition to the petition for
writ of mandamus and the responsive brief for movant-
intervenors Superfund Settlements Project, et al.
Before: HENDERSON, ROGERS and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Presently before the court is a joint
motion by environmental petitioners and the Environmental
Protection Agency for an order on consent. This matter began
with a petition filed by six environmental organizations for
issuance of a writ of mandamus directing EPA to promulgate the
financial assurance regulations required by section 108(b) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9675.
Section 108(b) provides that EPA “shall promulgate”
regulations requiring “that classes of facilities establish and
maintain evidence of financial responsibility consistent with the
degree and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances.” Id. § 9608(b)(1). Thirty years later, EPA has yet
to issue any regulations. Petitioners sought a declaration that
EPA had unreasonably delayed in failing to issue any
regulations under section 108(b) and an order directing EPA to
issue financial assurance regulations by January 1, 2016 for the
four industries EPA had previously identified as most needing
them. Pet. 1.
Petitioners and EPA have now filed a joint motion for an
order on consent establishing an agreed upon schedule for a
rulemaking for the hardrock mining industry and timetable by
which EPA would consider whether other industries would be
involved with a financial assurance rulemaking. Joint Mot. 3–4.
3
We grant the joint motion. At least one of the petitioners has
standing under Article III of the Constitution, and because the
joint motion resolves the issues presented by the petition for
mandamus, the court has no occasion to decide whether EPA’s
delay in promulgating section 108(b) regulations was
unreasonable delay for which mandamus would lie.
I.
Congress enacted CERCLA “to promote the timely cleanup
of hazardous waste sites and to ensure that the costs of such
cleanup efforts were borne by those responsible for the
contamination.” Burlington N. & Santa Fe Ry. Co. v. United
States, 556 U.S. 599, 602 (2009) (internal quotation marks and
citation omitted). CERCLA vests in EPA “‘broad power to
command government agencies and private parties to clean up
hazardous waste sites’ by or at the expense of the parties
responsible for the contamination.” Gen. Elec. Co. v. Envtl.
Prot. Agency, 360 F.3d 188, 189 (D.C. Cir. 2004) (quoting Key
Tronic Corp. v. United States, 511 U.S. 809, 814 (1994)).
CERCLA also authorizes EPA to undertake “response actions”
— using funds from the Hazardous Substance Superfund —
when there is a release or substantial threat of release of a
hazardous substance, pollutant, or contaminant. Id. (citing 42
U.S.C. § 9604); see also 42 U.S.C. § 9611; 26 U.S.C. § 9507; El
Paso Natural Gas Co. v. United States, 750 F.3d 863, 874–75
(D.C. Cir. 2014); Superfund Implementation, Exec. Order No.
12,580, 52 Fed. Reg. 2923 (Jan. 23, 1987). EPA may either
replenish the expended funds through a cost recovery action
against the parties responsible for the release, 42 U.S.C.
§ 9607(a), or seek to require the responsible parties themselves
to undertake response actions through an administrative or court
order. Id. § 9606(a).
 4
At issue are “financial assurance” or “financial
responsibility” regulations, whereby those entities potentially
responsible for the release of hazardous substances can put aside
funding — or otherwise demonstrate that funding is available —
to pay for any necessary cleanup or reclamation efforts. Section
108(b) of CERCLA provides that “[b]eginning not earlier than
five years after December 11, 1980, [EPA] shall promulgate
requirements . . . that classes of facilities establish and maintain
evidence of financial responsibility consistent with the degree
and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances.” Id. § 9608(b)(1). In the intervening thirty years
since section 108(b) took effect, EPA has made little progress
toward promulgating any financial assurance regulations. Not
until certain petitioners here sued in California did EPA identify
which classes of facilities required financial assurance rules.
Sierra Club v. Johnson, No. C 08-01409 WHA, 2009 WL
482248, *7–10 (N.D. Cal. Feb. 25, 2009). EPA published a
priority notice that it would first develop CERCLA financial
assurance rules for the hardrock mining industry. See
Identification of Priority Classes of Facilities for Development
of CERCLA Section 108(b) Financial Responsibility
Requirements, 74 Fed. Reg. 37,213, 37,214 (July 28, 2009). In
January 2010, EPA also issued an advanced notice of proposed
rulemaking of its plan to develop “as necessary” financial
assurance requirements for three additional industries: chemical
manufacturing; petroleum and coal products manufacturing; and
electric power generation, transmission, and distribution.
Identification of Additional Classes of Facilities for
Development of Financial Responsibility Requirements Under
CERCLA Section 108(b), 75 Fed. Reg. 816, 816 (Jan. 6, 2010).
EPA has repeatedly postponed the completion date for the
hardrock mining regulations, and it has not indicated if a
rulemaking will occur for the three other industries, or, since
2011, even mentioned the rulemakings in its regulatory agenda.
5
On August 11, 2014, six environmental organizations
petitioned this court for a writ of mandamus “directing EPA to
finalize [CERCLA financial assurance] rules by January 1,
2016, for the four industries already identified by EPA.” Pet. 1.
Petitioners argued the passage of nearly thirty years since EPA
was first charged by Congress with issuing such regulations
amounts to an unreasonable delay warranting mandamus relief.
Id.
At oral argument on May 12, 2015, petitioners
acknowledged that the January 2016 deadline was no longer
feasible due to the passage of time, see Oral Arg. Recording at
15:58–16:20, and EPA claimed that it had recently completed a
“framework” for a hardrock mining proposed rule, id. at
20:49–24:46. The court thereafter ordered the petitioners and
EPA to confer on (1) the date by which EPA would propose and
finalize financial assurance rules for the hardrock mining
industry and (2) the date by which EPA would decide whether
to propose rules for the three other industries EPA identified as
possibly requiring financial assurance rules. Order (May 19,
2015) (Judge Millett did not join as to (2)). EPA also was to file
the “framework” with the court.
Subsequently, the parties filed a joint motion for an order on
consent establishing an agreed upon schedule for a rulemaking
for the hardrock mining industry and a timetable by which EPA
would determine whether to engage in financial assurance
rulemaking for any of the three other industries. Joint Mot. 3–4.
In particular, the parties agreed that EPA would begin the
rulemaking process for the hardrock mining industry by
December 1, 2016 and publish its notice of final action by
December 1, 2017. The parties also agreed that EPA would
decide by December 1, 2016 whether it would proceed with a
rulemaking for any of the other three industries. If EPA decides
to go forward with one or more rulemakings, then it must
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complete final action for the first industry by December 2, 2020,
the second industry by December 1, 2021, and the third industry
by December 4, 2024. The parties may jointly stipulate to a
change in the schedule, Joint Mot. 6–7, and if petitioners oppose
an extension, EPA may file a motion seeking court approval, id.
5. EPA would submit compliance status reports to the court
every six months. Id. 7. The joint motion states that the parties’
agreement resolves the issues presented by the petition for
mandamus. Id. 1. The joint motion further sought to have this
panel retain jurisdiction until the schedule had been completed.
Id. 6–7. EPA also filed its “framework” with the court.
II.
As a threshold matter, the court must determine whether it
has jurisdiction to consider the order proposed in the joint
motion, and that requires determining whether petitioners have
Article III standing to seek a court order on consent. See CTS
Corp. v. Envtl. Prot. Agency, 759 F.3d 52, 57 (D.C. Cir. 2014);
Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1018–19
(D.C. Cir. 1998); Swift & Co. v. United States, 276 U.S. 311,
324, 326 (1928); cf. Mut. of Omaha Ins. Co. v. Nat’l Ass’n of
Gov’t Emps., Inc., 145 F.3d 389, 394 (D.C. Cir. 1998). Because
the proposed order would grant procedural relief — a
rulemaking — with respect to the hardrock mining industry,
petitioners need show that at least one petitioner has standing to
challenge the lack of financial assurance regulations in the
hardrock mining industry. Whether EPA must engage in the
other proceedings initially sought by petitioners through
mandamus remains within EPA’s discretion under the schedule
set forth in the proposed consent order. To the extent petitioners
would obtain relief through the setting of a schedule, however,
we have assumed they must show standing for that relief as well.
7
An organization has standing to bring suit on behalf of its
members if: “(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977). The court has no
reason to doubt that the petitioners satisfy the second and third
requirements for associational standing. “The issue before the
court, then, is whether at least one [of the petitioner’s]
member[s] . . . has standing under Article III.” Sierra Club v.
Envtl. Prot. Agency, 292 F.3d 895, 898 (D.C. Cir. 2002). The
“irreducible constitutional minimum” of Article III standing
requires satisfaction of three elements: (1) a concrete and
particularized and actual or imminent injury-in-fact that is (2)
fairly traceable to the challenged action of the defendant (and
not the result of the independent action of some third party not
before the court) and (3) likely to be redressed by a favorable
decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). The petitioners’ burden of production is to support each
of these elements “by affidavit or other evidence,” and their
burden of proof is not to demonstrate certainty but to “show a
‘substantial probability’” that each of these elements has been
met. Sierra Club, 292 F.3d at 899 (emphasis added).
A.
At least one petitioner has met Article III’s requirements
with respect to hardrock mining. Through the declaration of
John Robison, the Idaho Conservation League has shown that at
least one of its members has suffered and continues to be
threatened with ongoing and certainly impending injuries-in-fact
that are caused by EPA’s failure to promulgate financial
assurance regulations in the hardrock mining industry and that
will be redressed by promulgation of such rules. See Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1143, 1148 (2013); Defs. of
8
Wildlife, 504 U.S. at 560–61. So long as one petitioner has
standing, that suffices for the court to evaluate the merits of the
order on consent: “[I]f one party has standing in an action, a
court need not reach the issue of the standing of other parties
when it makes no difference to the merits of the case,” Ry.
Labor Execs. Ass’n v. United States, 987 F.2d 806, 810 (D.C.
Cir. 1993) (citing Doe v. Bolton, 410 U.S. 179, 189 (1973)).
Injury-in-fact. Robison lives, works, and recreates near
hardrock mining facilities, and he is in harm’s way and will
continue to be in harm’s way in the future. Petitioners focus on
two sources of injury caused by hardrock mining sites: (1)
hazardous releases from various currently operating or proposed
hardrock mining facilities that harm their economic, health,
aesthetic, and recreational interests and imminently threaten to
do so into the future; (2) the substantial probability that they will
continue to be harmed even after operations cease because
cleanup of such sites can take a long time. As a result of
unnecessarily prolonged cleanup and reclamation efforts, the
threat of future harm to Robison is real.
Robison has described in “substantial detail the injuries [he]
fear[s] from ongoing and future mining operations.” Nat’l
Wildlife Fed’n v. Hodel, 839 F.2d 694, 707 (D.C. Cir. 1988).
Although Robison describes many examples where his
recreational interests were harmed by arsenic-laden mine
tailings and waste, he further explains that two mining projects
in particular — the proposed Midas Gold project and the older
Atlanta Gold mine — threaten his future enjoyment of the Idaho
wilderness. Although the former project is still in the planning
stage, the record establishes that the mine is likely to go forward
even though it is not yet complete; the mining company has
concrete plans to proceed, the mine would be profitable, and the
mine continues to solicit financing to make the mine a reality.
The mine may not be completed for some time, but Robison has
9
presented concrete evidence substantiating a significant risk he
will be harmed by the proposed mine. See Clapper, 133 S. Ct.
at 1153–54; Defs. of Wildlife, 504 U.S. at 572 n.7. By contrast,
the Atlanta Gold mine is currently operating and is known to
discharge hazardous substances into the Boise River system, a
source of water Robison frequents. Although the mine operator
currently treats the discharge, Robison reasonably fears that
such treatment will stop because the mine operator has a low net
worth and there are currently insufficient financial assurances
for future cleanup efforts.
Causation and redressability. The record also establishes
that both sets of harms are caused by the lack of financial
assurance rules and would be redressed by EPA promulgating
such rules. Where, as here, causation and redressability “hinge
on the response of the regulated (or regulable) third party to the
government action or inaction,” Defs. of Wildlife, 504 U.S. at
562, “the petitioner bears the burden of ‘adduc[ing] facts
showing that those [third-party] choices have been or will be
made in such manner as to produce causation and permit
redressability of injury,” Ctr. for Biological Diversity v. U.S.
Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009)
(alterations in original) (citation omitted). “Article III does not
demand a demonstration that victory in court will without doubt
cure the identified injury. . . . Our cases require more than
speculation but less than certainty.” Teton Historic Aviation
Found. v. U.S. Dep’t of Defense, 785 F.3d 719, 727 (D.C. Cir.
2015) (citation omitted).
With respect to mitigating ongoing hazardous releases, the
lack of financial assurance requirements causes mine operators
to release more hazardous substances than they might if such
financial assurance requirements were in place. Although
CERCLA requires operators to pay to clean up hazardous
releases, see 42 U.S.C. § 9607(a), many avoid payment by
10
structuring their operations so they never have to pay. It is a
common practice for operators to avoid paying environmental
liabilities by declaring bankruptcy or otherwise sheltering assets.
See Identification of Priority Classes of Facilities for
Development of CERCLA Section 108(b) Financial
Responsibility Requirements, 74 Fed. Reg. at 37,217; U.S.
GOV’T ACCOUNTABILITY OFF., GAO-05-658, ENVIRONMENTAL
LIABILITIES: EPA SHOULD DO MORE TO ENSURE THAT LIABLE
PARTIES MEET THEIR CLEANUP OBLIGATIONS 1–2, 33, 58–59
(2005). At the very least, this limits the incentive to adopt best
practices, and in some circumstances may encourage operators
to take on greater risks knowing they will never have to pay the
costs. In view of these common practices, financial assurances
would strengthen hardrock mining operators’ incentives to
minimize ongoing hazardous releases. By making it more
difficult for mine operators to avoid paying for the cleanup of
their hazardous releases, basic economic self-interest means the
operator will take cost-effective steps to minimize hazardous
releases in order to minimize their environmental liabilities.
The court has long relied on such economic and other
incentives to find standing. See Teton Historic Aviation Found.,
785 F.3d at 725–26; Airlines for Am. v. Transp. Sec. Admin., 780
F.3d 409, 410–11 (D.C. Cir. 2015); Natural Res. Def. Council
v. Envtl. Prot. Agency, 643 F.3d 311, 318 (D.C. Cir. 2011);
Abigail Alliance for Better Access to Dev. Drugs v. Eschenbach,
469 F.3d 129, 135–36 (D.C. Cir. 2006); United Transp. Union
v. Interstate Commerce Comm’n, 891 F.2d 908, 912 n.7 (D.C.
Cir. 1989). And the notion that financial assurance requirements
deter environmental misconduct is hardly novel. As the Fourth
Circuit Court of Appeals recognized in evaluating a similar
financial assurance program, “[t]he incentive for safety is
obvious: the availability and cost of a bond will be tied directly
to the structural integrity of a facility and the soundness of its
day-to-day operations.” Safety-Kleen, Inc. (Pinewood) v.
11
Wyche, 274 F.3d 846, 866 (4th Cir. 2001). “[S]loppy ‘design
and operating procedures . . . are more likely to be avoided’ with
the financial assurance requirements and the resulting incentive
to reduce bond costs.” Id. (alterations in original) (quoting
Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities; Financial
Requirements, 47 Fed. Reg. 15,032, 15,044–45 (Apr. 7, 1982)).
This incentives-based theory of standing is further
supported by congressional and agency assessments. Such
assessments may be considered: “[W]hile Congress cannot
create standing on its own, it can provide legislative assessments
which courts can credit in making standing determinations.”
Nat’l Wildlife Fed’n, 839 F.2d at 708; see also Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
185 (2000). As the Senate Committee Report observed in
connection with the Superfund Improvement Act of 1985, “a
major goal of [CERLCA’s] financial responsibility requirements
is to enlist insurers to provide additional policing and incentives
to monitor the behavior of their insureds . . . . It is often policy
terms and conditions, as well as inspection and rate-making, that
form the basis of the insurer’s ability to influence the insured to
act carefully and responsibly.” S. REP. 99-11, at 47 (1985).
EPA, too, has concluded that financial assurances play a critical
preventative role by creating incentives for the proper handling
of hazardous substances. See, e.g., ENVTL. PROT. AGENCY
REGION 10 MINING TEAM, REGION 10 MINING FINANCIAL
ASSURANCE STRATEGY 2 (2008); ENVTL. PROT. AGENCY,
COMPLIANCE AND ENFORCEMENT NATIONAL PRIORITY:
FINANCIAL RESPONSIBILITY UNDER ENVIRONMENTAL LAW 1
(2005).
Because hardrock mining is already subject to some
financial assurance requirements, the impact of new financial
assurance requirements may be reduced. Cf. Decl. of Barnes
12
Johnson, Dir. of Office of Res. Conservation and Recovery,
Envtl. Prot. Agency ¶¶ 30–31 (Nov. 19, 2014) (citing Reducing
Excessive Deadline Obligations Act of 2013, H.R. 2279, 113th
Cong. § 104 (as passed by House, Jan. 9, 2014), and 160 CONG.
REC. H475, H979 (daily ed. Jan. 15, 2014)). But “the existence
of alternative ‘protective conditions’ does not negate a party’s
standing to enforce statutorily mandated regulations.” Sierra
Club v. Envtl. Prot. Agency, 129 F.3d 137, 139 (D.C. Cir. 1997).
So long as existing regulatory coverage — or the lack thereof —
subjects at least one petitioner to some harm, that is sufficient to
confer standing to challenge the regulatory regime (or lack
thereof). See id.; Airlines for Am., 780 F.3d at 411. The record
shows that the Idaho Conservation League’s member faces such
harms because there are gaps in the existing regulatory
landscape; financial assurance procedures are inconsistent and
inadequate. Although EPA sometimes negotiates case-by-case
financial assurance requirements after significant releases of
hazardous substances have occurred, those tools are limited and
do not cover many facilities that pose the risk of such releases.
Further, the record shows that some facilities file for bankruptcy
protection without entering into a settlement agreement, which
may make it difficult for EPA to recover any of the cleanup
costs. There is no evidence that the facilities identified by
Robison are immune to these problems; he demonstrates that the
facilities about which he is concerned are not adequately
covered by existing financial assurance requirements. Because
additional financial assurance requirements would address gaps
in protection that affect Robison’s interests and there are no
“reasons beyond the challenged government action for the third
parties to continue the conduct that caused injury to the
[petitioners],” see Ams. for Safe Access v. Drug Enforcement
Admin., 706 F.3d 438, 448 (D.C. Cir. 2013), there is no basis to
doubt that the congressional assessment and economic logic
further support causation and redressability. Nor is the
connection between imposing financial assurance requirements
13
and mine operators choosing to reduce their releases into the
environment too attenuated to require more to support standing.
See, e.g., Ctr. for Biological Diversity, 563 F.3d at 478.
Furthermore, under petitioners’ second theory of standing,
EPA’s failure to promulgate CERCLA financial assurance
regulations contributes to funding shortfalls for cleanup efforts,
which delays remediation and increases the length of time
Robison would be exposed to hazardous substances. As
discussed, the lack of financial assurance requirements means
that mine operators can avoid paying some portion of the
cleanup costs by declaring bankruptcy. Although the federal
government has taken over responsibility for cleaning up these
sites, the record shows that cleanup proceeds at a slower rate
than it would if fully funded. Slower cleanups prolong the
public’s exposure to hazardous materials. With respect to
hardrock mining, EPA concluded that “if the total Federal, State,
and potentially responsible party outlays for remediation were
to continue at existing levels . . . , no more than eight to 20
percent of all cleanup work could be completed within 30
years.” Identification of Priority Classes of Facilities for
Development of CERCLA Section 108(b) Financial
Responsibility Requirements, 74 Fed. Reg. at 37,217. For
instance, “EPA officials [have reported] that at the Bunker Hill
Mining site in Idaho . . . the pace of the cleanup had to be
slowed down because of preconstruction and remedial action
funding limitations.” U.S. GOV’T ACCOUNTABILITY OFF., GAO-
10-380, SUPERFUND: EPA’S ESTIMATED COSTS TO REMEDIATE
EXISTING SITES EXCEED CURRENT FUNDING LEVELS, AND MORE
SITES ARE EXPECTED TO BE ADDED TO THE NATIONAL
PRIORITIES LIST 18 (2010). In view of these assessments, there
is a substantial risk that cleanup delays will occur in hazardous-
waste-releasing sites near Robison. The injuries threatened by
such delayed cleanup would be redressed by an order requiring
EPA to finalize a hardrock-mining financial assurance rule.
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Whether financial assurance requirements provide the funds to
clean up a site directly, or free up government funds to clean up
the site, the record makes clear that financial assurances would
reduce current delays in cleanup at these sites.
Assuming, as we must for purposes of standing, that EPA
adheres to the schedule set forth in the joint order on consent
and timely promulgates financial assurance requirements in the
hardrock mining industry, see, e.g., Sierra Club v. Envtl. Prot.
Agency, 699 F.3d 530, 533 (D.C. Cir. 2012), there is a
substantial probability that doing so will reduce the injuries
caused to one member of the Idaho Conservation League.
Promulgating a financial assurance rule in the hardrock mining
industry will lessen, if not prevent, both ongoing hazardous
waste release and future delays in cleaning up such releases,
which, in turn, will limit Robison’s exposure to these hazards.
Accordingly, we hold that at least one petitioner has established
standing under Article III.
B.
To the extent that a showing of standing is also needed for
the requirement that EPA decide whether to conduct a
rulemaking in any of the other three industries by a specific date
as a different form of relief, cf. Laidlaw, 528 U.S. at 186, the
declarations of members of Sierra Club and the Idaho
Conservation League show that they are currently harmed and
will continue to be harmed by the lack of financial assurance
regulations for the remaining industries. For instance, Karla
Land, a member of the Sierra Club, lives and works near
petroleum and chemical manufacturing facilities that dump
hazardous substances in the San Juacinto River and will
continue to do so in the future. This harms her interests because
it limits her ability to test the jet skis she repairs and to fish in
the river. Similarly, Justin Hayes, a member of the Idaho
Conservation League, explains how he is harmed by the lack of
15
financial assurance regulations. Specifically, he is concerned
about the Monsanto Chemical Company Superfund site, which
is located at a Monsanto facility that processes chemicals and
continues to contaminate the groundwater near springs he likes
to visit and from which he drinks the spring water. Although
Monsanto has undertaken some cleanup at the site, he has reason
to fear that the additional contamination will require even more
cleanup and that there is nothing to stop Monsanto from ceasing
to clean up the area. Mark Romines of the Sierra Club states
that a nearby power generating facility is releasing coal ash
directly into the Ohio River and has made no effort to clean up
these hazardous releases, so that he is no longer able to swim in
the river. He is especially concerned that he is currently
vulnerable to the possibility that a coal ash retention pond down
the street could breach, releasing black coal water into the
subdivision where he lives. Finally, Richard Kark, a member of
the Sierra Club, states that the active electric power plant near
his home is contaminating the French Broad River in which he
canoes, and that the coal ash dam created by the plant could
burst, harming his community.
In sum, these declarations show that at least one of
petitioners’ members have been and continue to be harmed by
facilities in the three remaining industries and that, just as with
hardrock mining, supra Part II.A., financial assurance
requirements would redress their injuries by incentivizing these
industries to limit hazardous releases and by reducing cleanup
delays. Additionally, a schedule for decision-making affords
petitioners relief as it is more likely that EPA will promulgate
financial assurance regulations and make that decision sooner
rather than later. Petitioners need not show that “but for the
alleged procedural deficiency the agency would have reached a
different substantive result.” See, e.g., WildEarth Guardians v.
Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013); Sugar Cane
Growers Co-op. of Fla. v. Veneman 289 F.3d 89, 94–95 (D.C.
16
Cir. 2002). Even though petitioners could not establish “with
any certainty” that requiring EPA to decide whether to conduct
a rulemaking will result in financial assurance regulations for
the remaining industries, it is enough that this “procedural step
[is] connected to the substantive result” sought by petitioners —
promulgation of financial assurance rules for the remaining
industries. See Sugar Cane, 289 F.3d at 94–95 (citation and
internal quotation marks omitted); WildEarth, 738 F.3d at 306.
Therefore, the court is assured that at least one petitioner
has standing to obtain all of the relief sought in the order in the
joint motion on consent.
III.
Also pending are motions to intervene as of right under
CERCLA, 42 U.S.C. § 9613(i) and Federal Rule of Civil
Procedure 24(a), filed by Freeport-McMoRan, Inc. (“Freeport”),
the National Mining Association, and a group of other industry
intervenors including the Superfund Settlements Project, the
American Chemistry Council, and the American Petroleum
Institute (herein, the “Superfund group”). The motions were
filed after the court ordered EPA to respond to the petition for
a writ of mandamus seeking rules by set dates, and they have not
been supplemented since the joint motion on consent was filed.
Our decision in Defenders of Wildlife v. Perciasepe, 714 F.3d
1317, 1323–25 (D.C. Cir. 2013), is controlling. See also Nat’l
Ass’n of Home Builders v. U.S. Fish & Wildlife Serv., 786 F.3d
1050, 1053 (D.C. Cir. 2015); In re Endangered Species Act
Section 4 Deadline Litig., 704 F.3d 972, 976 (D.C. Cir. 2013).
We conclude the proposed intervenors fall short of
demonstrating their right to intervene because they fail to show
they have Article III standing, which they do not dispute is
17
required.1 We further conclude permissive intervention would
be inappropriate. See FED. R. CIV. P. 24(b)(1)(B).
Because the petition for mandamus is no longer at issue,
those seeking to intervene must base their Article III standing on
harms caused by the joint motion on consent, not the relief
sought in the petition for mandamus or concerns generated by
EPA’s “throat-clearing” beyond the joint order on consent.
Perciasepe, 714 F.3d at 1325 n.7. They suggest generally that
stricter hardrock mining regulation is a foregone conclusion.
But the proposed joint order “does not require EPA to
promulgate a new, stricter rule.” Id. at 1324. At most, it
“merely requires that EPA conduct a rulemaking and then
decide whether to promulgate a new rule — the content of
which is not in any way dictated by the [proposed order on
consent] — using a specific timeline.” Id. The timeline in the
joint motion requires that EPA commence a rulemaking with
respect to hardrock mining by December 1, 2016, and provide
“notice of its final action” by December 1, 2017. Joint Mot. 3.
Although more is required with respect to hardrock mining than
the other identified industries, where EPA retains discretion not
to conduct a rulemaking at all, EPA retains “discretion to
promulgate a rule or decline to do so” even for the hardrock
mining industry. See Perciasepe, 714 F.3d at 1325 n.7; see also
5 U.S.C. § 551(13). The joint motion on consent states that
“[n]othing in this Joint Motion should be construed to limit or
modify the discretion accorded EPA by CERCLA or the general
principles of administrative law.” Joint Mot. 6. It neither
resolves the substance of any rulemaking nor even which
1
With respect to Part III of this opinion, Judge Millett joins
only the last paragraph denying permissive intervention. She would
hold that hardrock mining intervenors have standing but deny
intervention in view of their unhindered ability to participate in that
rulemaking.
18
classes of hardrock mining facilities will be regulated. See 2nd
Decl. of Barnes Johnson, Dir. of Office of Res. Conservation
and Recovery, Envtl. Prot. Agency, Ex. 1, at 1 (Aug. 25, 2015)
(“framework” for hardrock mining rules). In other words,
nothing about this particular order on consent makes it any more
likely than in Perciasepe, 714 F.3d at 1324–25, that proposed
intervenors will be subject to regulation, much less suffer
concrete harm to their interests, cf. Fund for Animals v. Norton,
322 F.3d 728, 733–34 (D.C. Cir. 2003). Because the order
sought in the joint motion on consent merely “prescribes a date
by which regulation could occur,” proposed intervenors have not
established Article III standing. See Perciasepe, 714 F.3d at
1325.
That the schedule for EPA to act has been condensed over
what was originally proposed by EPA in responding to the
petition for mandamus does no more to establish proposed
intervenors’ standing. Freeport explains in very general terms
why the proposed schedule in the joint motion is unreasonable,
but it does not explain how the schedule might harm it, see
Freeport Suppl. Resp. 1–5, much less attempt to establish how
that schedule increases its information gathering costs. See
Perciasepe, 714 F.3d at 1326. Nor do the proposed intervenors
point to authority that the proposed one-year period for notice-
and-comment is so short that it would necessarily harm them.
See id. at 1324; Omnipoint Corp. v. Fed. Commc’n Comm’n, 78
F.3d 620, 630 (D.C. Cir. 1996).
Alternatively, had the proposed intervenors argued that
Article III standing is not required for intervention as of right
under CERCLA § 9613(i), which they did not, our conclusion
would be the same. Their concerns about the order sought by
the joint motion on consent, which sets only a schedule for
rulemaking, are insufficient to show the necessary impairment
to their interests. See Alt. Research & Dev. Found. v. Veneman,
19
262 F.3d 406, 411 (D.C. Cir. 2001). Granting the joint motion
on consent would not prevent proposed intervenors from seeking
to intervene in the scheduled rulemaking or challenging a final
rule that subjects them to regulation. See id.
As to permissive intervention, it is discretionary. See Equal
Emp’t Opportunity Comm’n v. Nat’l Children’s Ctr., Inc., 146
F.3d 1042, 1046 (D.C. Cir. 1998). Given proposed intervenors’
failure to show in regard to the order on consent a “claim or
defense that shares with the main action a common question of
law or fact,” FED. R. CIV. P. 24(b), such intervention would be
inappropriate.
IV.
Finally, we conclude that the motion and its proposed order
appropriately respond to the court’s order of May 19, 2015.
That suffices for the court to grant the joint motion. Even an
intervenor would lack the power to block the order on consent
by withholding their consent, see Local No. 93, Int’l Ass’n of
Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S.
501, 528–29 (1986). Besides that, our role in evaluating the
reasonableness of a proposed consent order is limited. See
Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1125–26
(D.C. Cir. 1983). As a district court has “power to enter a
consent decree without first determining that a statutory
violation has occurred,” id. (citing Swift, 276 U.S. at 327), its
duty is only to “satisfy itself of the settlement’s ‘overall fairness
to beneficiaries and consistency with the public interest.’” Id.
(quoting United States v. Trucking Emps., Inc., 561 F.2d 313,
317 (D.C. Cir. 1977)). Thus, this court has instructed:
The trial court in approving a settlement need not
inquire into the precise legal rights of the parties nor
reach and resolve the merits of the claims or
20
controversy, but need only determine that the
settlement is fair, adequate, reasonable and appropriate
under the particular facts and that there has been valid
consent by the concerned parties.
Id. (quoting Metro. Hous. Dev. Corp. v. Vill. of Arlington
Heights, 616 F.2d 1006, 1014 (7th Cir. 1980)). We view our
role to be similarly limited inasmuch as the joint motion
resolves a petition for mandamus that originated in this court
and conclude that the joint motion satisfies this standard.
Stated broadly, Congress, in enacting CERCLA, has
determined that the financial assurance provisions required by
section 108(b) are in the public interest. In adopting
amendments to CERCLA, Congress has retained these
provisions. The joint motion on consent is designed to ensure
meaningful implementation of them. For the same reason,
petitioners have concluded that the joint motion represents a
fruitful way to achieve their objectives. Nothing on the face of
the joint motion suggests unfairness to any interested parties.
As noted, Part III supra, the joint motion does not preordain the
content of a rulemaking much less indicate that in committing
itself to conducting a rulemaking EPA has prejudged the
outcome for the hardrock mining industry. Once EPA publishes
a notice of proposed rulemaking, interested parties will have an
opportunity to present their comments, and if EPA publishes a
final rule, those affected could challenge it.
Considering the arguments presented by those seeking to
intervene as arguments of amici, see 7A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1913 (3d ed. 2015), does not persuade us to deny
the joint motion. For instance, in urging that the joint motion on
consent is not a reasonable settlement of the parties’ positions,
amici focus on the compressed schedule for EPA to act. EPA
21
had stated in response to the petition for mandamus that
petitioners’ proposed schedule — requiring a final rule for all
four industries by January 2016 — was unreasonable in view of
the many tasks to be completed before proposing a financial
assurance rule as well as difficulties that might arise after the
comment period. See, e.g., Decl. of Barnes Johnson ¶¶ 33-35,
71-73. Instead, EPA suggested that it could not produce a final
rule for the hardrock mining industry until August 2019. See id.
¶ 73. Now EPA has represented that it can produce a final rule
by December 2017. There is no reason to doubt its
representation to the court inasmuch as EPA has a “framework”
to facilitate rulemakings and the joint motion on consent affords
EPA additional time to act in several key areas while preserving
its discretion in other areas. Under the joint motion, the
deadline for proposing a hardrock mining rule has been
extended from August 2016 to December 1, 2016, even though
the period for notice and comment has been reduced from three
years, as EPA originally estimated, to one year. Further, EPA
no longer faces the imminent possibility that the court would
grant mandamus for financial assurance rules in the other three
industries, Pet. 1, as it retains discretion to determine whether to
engage in a rulemaking for these industries at all. If EPA
decides to proceed with rulemaking for other industries, it has
until 2024 to provide notice of its final action for the third
industry. Contrary to amici’s suggestion, schedule adjustments
like these are not substantive reversals in policy that require
explanation beyond what is evident on the face of the parties’
joint motion on consent. See Perciasepe, 714 F.3d at 1324 &
n.6; Omnipoint Corp., 78 F.3d at 629–30; cf. Envtl. Def. Fund,
Inc. v. Costle, 636 F.2d 1229, 1255–56 & n.93 (D.C. Cir. 1980);
see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co. 463 U.S. 29, 41–42 (1983). EPA’s
representation, moreover, is properly understood in the context
of acknowledging that Congress’s instruction on financial
assurance rules was issued more than thirty years ago.
22
Accordingly, because the parties’ joint motion on consent
appropriately responds to the Court’s order and is reasonable,
we grant the motion. An order accompanies this opinion.