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Environmental Integrity Project v. McCarthy

United States District Court, District of Columbia

November 18, 2016




         Plaintiffs, a coalition of environmental advocacy groups, [1] are unimpressed by the EPA's current regulations and guidelines concerning the disposal, storage, transportation, and handling of oil and gas wastes. On the other hand, movants-the State of North Dakota, the American Petroleum Institute, the Independent Petroleum Association of America, and the Texas Independent Producers and Royalty Owners Association[2]-think the EPA's current approach is just fine. But this case is not about that dispute. Instead, this case deals with a different and narrower question: whether the EPA Administrator has violated non-discretionary, statutory duties to periodically review and, where necessary, revise those regulations and guidelines. Plaintiffs allege that the Administrator has violated those duties, and thus asks the Court to order the Administrator to perform them by a certain date. Fearing that such an order would result in burdensome new regulations, movants seek to intervene in this litigation pursuant to Federal Rule of Civil Procedure 24. Under this Circuit's standing jurisprudence, however, they are not entitled to intervene as of right. Nor would their participation be helpful in resolving the issues raised in this case. As a result, the motions to intervene will be denied.


         The Resource Conservation and Recovery Act of 1976, Pub. L. 94-580, 90 Stat. 2795 (1976), created a comprehensive program for the handling of solid wastes. Hazardous wastes are governed by Subtitle C of the Act, see 42 U.S.C. §§ 6921-39g, which "establishes a cradle to grave federal regulatory system for [their] treatment, storage, and disposal." Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C. Cir. 1996) (internal quotation marks omitted). Non-hazardous solid wastes, on the other hand, are addressed by Subtitle D of the Act. See Id. §§ 6941-49a. "Under Subtitle D, states use federal financial and technical assistance to develop solid waste management plans in accordance with federal guidelines." Envtl. Def Fund v. EPA, 852 F.2d 1309, 1310 (D.C. Cir. 1988).

         Oil and gas wastes are currently governed by Subtitle D. In 1980, Congress exempted oil and gas wastes from regulation under Subtitle C-although if the EPA later determined that Subtitle C regulations were warranted, the agency was permitted to propose such regulations to Congress for possible adoption. Am. Iron & Steel Inst, v. EPA, 886 F.2d 390, 394 (D.C. Cir. 1989) (citing 42 U.S.C. § 6921(b)(2)(A) (the "Bentsen amendment")). In a subsequent regulatory determination, the EPA concluded that oil and gas wastes should be treated only as non-hazardous wastes subject to Subtitle D. See Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 Fed. Reg. 25, 446, 25, 446 (Jul. 6, 1988); see also Am. Iron & Steel Inst., 886 F.2d at 394.

         This case concerns two sets of regulations promulgated by the EPA under Subtitle D. The first set establishes federal criteria for the classification of solid waste disposal facilities and practices. See 40 C.F.R. pt. 257; see also 42 U.S.C. § 6944(a). Facilities that fail to satisfy these criteria are classified as "open dumps"; practices that fail to satisfy the criteria are classified as "open dumping." See 40 C.F.R. § 257.1 (a)(1)-(2). Both open dumps and open dumping are prohibited by the Act. Id; see also 42 U.S.C. § 6945(a). The second relevant set of regulations establishes guidelines to assist states with the development and implementation of state solid waste management plans. See 40 C.F.R. pt. 256; see also 42 U.S.C. § 6942(a).

         Plaintiffs believe that these regulations have failed to keep pace with recent developments in the oil and gas industry, like the advent of hydraulic fracking. See Compl. [ECF No. 1] ¶¶ 2-3. They lay the blame for that failure at the feet of the Administrator who, they allege, has not meaningfully reviewed or revised the Subtitle D classification criteria since 1988, id ¶ 4, or the state plan guidelines since 1981, id ¶ 6. This suit is an attempt to spur some administrative action. Plaintiffs invoke the Act's citizen suit provision, which allows individuals to sue the Administrator where she has allegedly failed "to perform any act or duty under this chapter which is not discretionary." 42 U.S.C. § 6972(a)(2). Plaintiffs allege breaches of two non-discretionary duties here. First, they claim the Administrator was required to review and, where necessary, revise the Subtitle D classification criteria not less frequently than every three years. Compl. ¶ 4 (citing 42 U.S.C. § 6912(b)). Second, they claim the Administrator was required to review the state guidelines not less frequently than every three years, and revise them as may be appropriate. LI ¶ 6 (citing 42 U.S.C. § 6942(b)).

         Asking the Court to enforce these statutory provisions, plaintiffs' complaint includes three claims for relief. The first alleges that the Administrator already determined, in 1988, that revisions to the Subtitle D classification criteria were "necessary, " see Compl. ¶ 92, and thus asks the Court to order the Administrator to "issue necessary revisions" of those regulations "by a date certain, " id (prayer for relief B). In the alternative, plaintiffs' second claim asks the Court to order the Administrator to "review, and where necessary revise" the Subtitle D classification criteria for oil and gas wastes "by a date certain." Id. (prayer for relief C). And the third claim seeks similar relief as to the state plan guidelines. LI (prayer for relief D).

         Now pending before the Court are three motions to intervene, filed by four would-be intervenors. Each claims that it has important interests at stake in this litigation. North Dakota, which is home to a thriving oil and gas industry, is concerned that, inter alia, it would "bear the additional cost of implementing any new federal regulations" resulting from this action. See North Dakota's Mot. to Intervene [ECF No. 11-2] at 2. The Industry Associations are likewise concerned about "the imposition of unnecessary and unduly burdensome" new regulations, see Industry Ass'ns.' Mot. to Intervene [ECF No. 14] at 3, as is the Texas Independent Producers and Royalty Owners Association (TIPRO), see TIPRO's Mot. to Intervene [ECF No. 20-1] at 1. Each believes that Rule 24(a) of the Federal Rules of Civil Procedure entitles it to intervene in this action as a matter of right. In the alternative, however, each also seeks permissive intervention under Rule 24(b). The plaintiffs and the EPA oppose intervention.


         When determining whether a movant may intervene as of right under Rule 24(a), a court must consider four factors:

(1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties.

Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (internal quotation marks omitted). Under circuit precedent, however, a would-be intervenor must also demonstrate that it has Article III standing. LI at 731-32. Movants who lack standing are ineligible to intervene as of right. In re Endangered Species Act Section 4 Deadline Litig. - MDL No. 2165, 704 F.3d 972, 979 (D.C. Cir. 2013).

         The "irreducible constitutional minimum of standing" consists of three elements: (1) movants must demonstrate an injury in fact; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely that a favorable decision on the merits will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) ...

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