In re Idaho Conservation League, 14–1149.

• Decision Date: 29 January 2016
• Docket Number: No. 14–1149.,14–1149.
• Citation: 811 F.3d 502
• Parties: In re IDAHO CONSERVATION LEAGUE, et al., Petitioners.
• Court: U.S. Court of Appeals — District of Columbia Circuit

811 F.3d 502

In re IDAHO CONSERVATION LEAGUE, et al., Petitioners.

No. 14–1149.

United States Court of Appeals, District of Columbia Circuit.

Argued May 12, 2015.

Decided Jan. 29, 2016.

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.

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. 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, 129 S.Ct. 1870, 173 L.Ed.2d 812 (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, 114 S.Ct. 1960, 128 L.Ed.2d 797 (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).

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.

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 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, 48 S.Ct. 311, 72 L.Ed. 587 (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...