787 F.3d 1129
D.C. Cir.2015Background
- EPA promulgated a Class VI well rule (2010) under the Safe Drinking Water Act to regulate injection of CO2 for geologic sequestration and barred injection of hazardous RCRA waste into Class VI wells.
- EPA later issued a 2014 rule concluding that supercritical CO2 streams injected into permitted Class VI wells for geologic sequestration are "solid waste" under RCRA, while granting a conditional exclusion from the "hazardous waste" definition if certain conditions are met.
- Petitioners (Carbon Sequestration Council, Southern Company Services, and American Petroleum Institute) challenged EPA’s determination that such CO2 streams are RCRA "solid waste."
- Southern submitted a declaration showing it captures CO2 for Class V experimental wells and enhanced oil recovery but does not operate or plan to operate Class VI wells; Occidental (API member) submitted a declaration showing it uses CO2 for enhanced oil recovery, not Class VI sequestration.
- The D.C. Circuit held that none of the petitioners established Article III standing because the challenged rule is limited to CO2 injected into Class VI wells for geologic sequestration and neither Southern nor Occidental is regulated or imminently affected by that narrow rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners have Article III standing to challenge EPA’s RCRA "solid waste" determination | Petitioners (via Southern and Occidental) argued EPA’s determination will force CO2 generators to incur costs to determine hazardous-waste status and will influence business decisions | EPA argued the 2014 rule applies only to supercritical CO2 injected into Class VI wells for geologic sequestration; it does not cover Southern’s Class V or enhanced oil recovery activities nor Occidental’s EOR activities | No standing: neither Southern nor Occidental operates/plans to operate Class VI wells and any alleged future injury is speculative; petitions dismissed |
| Whether preparatory business decisions based on fear of future regulation can confer standing | Petitioners argued anticipatory costs and altered business plans (e.g., scaling back EOR) are concrete injuries traceable to EPA’s rule | EPA pointed to explicit statements in the rule distinguishing EOR and Class V activities from the Class VI sequestration subject to the rule and denying intent to regulate EOR | Held that speculative, anticipatory business decisions are not fairly traceable to the final rule; Sabre precedent distinguishable; no standing |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury in fact, causation, redressability)
- Sierra Club v. EPA, 292 F.3d 895 (petitioners must support standing with affidavits/evidence)
- Sabre, Inc. v. Department of Transportation, 429 F.3d 1113 (agency’s unambiguous claim of jurisdiction can create imminently concrete injury)
- United Techs. Corp. v. EPA, 821 F.2d 714 (RCRA’s cradle-to-grave regulatory structure)
- Military Toxics Project v. EPA, 146 F.3d 948 (EPA authority to grant conditional exclusions under RCRA)
- Alaska Legislative Council v. Babbitt, 181 F.3d 1333 (speculative injuries insufficient for standing)
- Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633 (standing cannot be inferred from argumentative speculation)