Louisiana Environmental Action Network v. U.S. E.P.A.

• Decision Date: 26 March 1999
• Docket Number: No. 98-1082,98-1082
• Parties: , 335 U.S.App.D.C. 247 LOUISIANA ENVIRONMENTAL ACTION NETWORK and Environmental Technology Council, Inc., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. American Petroleum Institute, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 65

172 F.3d 65

48 ERC 1501, 335 U.S.App.D.C. 247

LOUISIANA ENVIRONMENTAL ACTION NETWORK and Environmental

Technology Council, Inc., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

American Petroleum Institute, et al., Intervenors.

No. 98-1082.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 16, 1999.

Decided March 26, 1999.

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 STEPHEN F. WILLIAMS.

Opinion by Circuit Judge SENTELLE, concurring in part and dissenting in part.

STEPHEN F. WILLIAMS, Circuit Judge:

Section 3004(m) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 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 discourage excavation--and thus prevent any treatment at all. Because of its concern for this, EPA promulgated a regulation under § 3004(m) allowing variances from generally applicable 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 Environmental Action Network ("LEAN") and Environmental Technology 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 Treatment 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 accidentally 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 environmentally 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 incentive 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 redisposal (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 cleanup 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 standard could result in a net environmental detriment by discouraging 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 demonstrate 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 interests but no standing. The risk of some possible manipulation 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, 97 S.Ct. 2434, 53 L.Ed.2d 383 (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 resources, 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 tradeoffs, 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 specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially 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. § 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 continuation 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 mentioned "disposal of treatment residues in a subtitle C landfill"--that is, a landfill subject to the hazardous waste disposal controls of RCRA § 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. § 6976(a)(1) (providing review within 90 days of action promulgating "regulation"), 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 indication of the third.) The...