United States District Court, District of Columbia
D.BATES UNITED STATES DISTRICT JUDGE
a coalition of environmental advocacy groups,  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-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
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).
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.
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).
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)).
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).
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
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.
"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) ...