Ecological Rights Foundation v. Pacific Gas & Electric Co.
874 F.3d 1083
9th Cir.2017Background
- EcoRights sued PG&E under RCRA §6972(a)(1)(B) (citizen-suit endangerment provision) and the CWA, alleging PCP‑treated wood waste from PG&E service yards reached San Francisco and Humboldt Bays via stormwater and vehicle tire‑tracking.
- EPA’s NPDES program regulates point‑source discharges under the CWA, but EPA’s Phase I/II regulations do not require permits for the types of PG&E stormwater discharges at issue; EPA chose not to designate those sources for Phase II permitting.
- District court granted summary judgment to PG&E on the CWA claim (no NPDES requirement) and held RCRA’s anti‑duplication clause, 42 U.S.C. §6905(a), bars RCRA relief for the stormwater pathway; it granted summary judgment to PG&E on the tire‑tracking theory for lack of evidence.
- On appeal, EcoRights challenged the district court’s reading of RCRA §6905(a) and sought summary judgment on RCRA; EPA appeared as amicus supporting EcoRights.
- The Ninth Circuit held RCRA’s anti‑duplication provision applies only where a specific statutory requirement under a listed statute exists and is actually inconsistent with RCRA relief; because no CWA requirement (e.g., NPDES permit) applied to PG&E’s stormwater discharges, §6905(a) did not preclude the RCRA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing re: Hayward facility | EcoRights: members show concrete aesthetic/recreational injuries from Bay pollution traceable to PG&E. | PG&E: alleged harms are generalized and too remote from Hayward facility. | Held: EcoRights has organizational standing; member declarations show concrete, particularized injuries to Bay use/enjoyment. |
| Whether RCRA §6905(a) bars RCRA citizensuit for stormwater discharges | EcoRights: §6905(a) requires an actual inconsistency with another statute’s specific requirements; absent a CWA mandate, RCRA applies. | PG&E: EPA’s discretionary decision not to impose Phase II permits means CWA coverage exists and §6905(a) bars RCRA overlap. | Held: Reversed district court. §6905(a) is triggered only by specific legal requirements under the CWA that are inconsistent with RCRA relief; no CWA requirement applied here, so RCRA claim may proceed. |
| Municipal NPDES permits/municipal liability argument | EcoRights: municipal permits do not create CWA requirements that preclude RCRA relief against PG&E; some discharges bypass municipal systems. | PG&E: stormwater is subject to municipal NPDES permits and municipal obligations, so RCRA relief would duplicate/contradict CWA scheme. | Held: PG&E failed to identify any municipal permit requirement applicable to PG&E that conflicts with RCRA relief; summary judgment on that basis denied. |
| Tire‑tracking pathway sufficiency of evidence | EcoRights: vehicles can track PCP‑contaminated material offsite, contributing to endangerment. | PG&E: no evidence trucks actually transported contamination offsite; expert testimony speculative. | Held: Affirmed district court. Evidence was speculative and insufficient to create a triable issue; summary judgment for PG&E on tire‑tracking affirmed. |
Key Cases Cited
- NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (invalidating EPA’s categorical stormwater exemption and prompting statutory changes)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (discussing CWA Phase I/II stormwater regulatory framework)
- Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) (describing RCRA’s scope re: hazardous waste regulation)
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standing principles in environmental cases)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Edison Elec. Inst. v. U.S. EPA, 996 F.2d 326 (D.C. Cir. 1993) (interpreting RCRA anti‑duplication in context of overlapping regulatory schemes)