41 F.4th 654
D.C. Cir.2022Background
- EPA adopted the 2015 Rule regulating coal combustion residuals (coal ash) under RCRA Subtitle D; the Rule sets minimum disposal criteria but does not create a federal permitting program.
- The Water Infrastructure Improvements for the Nation Act amended Subtitle D to let states either implement EPA-approved state permitting programs for coal ash or remain "nonparticipating," in which case EPA must implement a federal permitting program (subject to appropriations).
- Oklahoma submitted a state coal-ash permitting program and EPA approved it in 2018; the Oklahoma Program features tiered public-participation levels (Tier I affords minimal participation) and issues "life" (lifetime) permits not tied to future federal-standard changes.
- Three environmental groups sued EPA after approval, asserting a RCRA citizen-suit (to compel EPA to promulgate public‑participation guidelines) and multiple APA claims: (a) EPA unlawfully approved Oklahoma before issuing public‑participation guidelines; (b) Tier I provides inadequate participation; (c) lifetime permits conflict with the Improvements Act; and (d) EPA failed to respond adequately to two comments.
- The district court granted summary judgment to EPA on most claims (one unrelated claim succeeded); on appeal the court concluded plaintiffs lacked standing and remanded with instructions to dismiss for lack of jurisdiction.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Citizen‑suit to compel EPA to promulgate public‑participation guidelines | EPA has a nondiscretionary duty under RCRA §6974(b); compelling guidelines will improve members' participation and reduce coal‑ash harms | Any injunction compelling guidelines would not likely change Oklahoma's program; redress depends on third‑party state action and is speculative | No standing — redressability fails (speculative effect on Oklahoma; statute provides no mechanism making promulgation likely to alter Oklahoma's rules) |
| 2) APA challenge that approval was arbitrary because EPA approved before issuing participation guidelines (vacatur relief) | Vacatur of approval would remedy lack of required process/standards | Vacatur would make Oklahoma a nonparticipating state subject to the federal default (2015 Rule), which provides fewer participation opportunities; any benefit depends on speculative multi‑step chain (e.g., EPA later crafting a more participatory federal program and appropriations) | No standing — vacatur would not likely redress plaintiffs (may worsen participation); multi‑link causal chain too speculative |
| 3) APA Tier I claim (insufficient public participation) | Oklahoma's Tier I denies meaningful participation, violating RCRA public‑participation requirements | EPA approval did not cause plaintiffs' injury because Oklahoma's program affords more participation than the federal 2015 Rule in effect before approval | No standing — injury not traceable/redressable (approval increased, not decreased, participation relative to default) |
| 4) Lifetime‑permits claim and related comments claims | Lifetime permits lock facilities to possibly outdated, less protective standards when federal standards become stricter; EPA failed to address comments | Injury is contingent on future federal rule changes and appropriations; procedural‑comment errors alone do not confer standing absent concrete, traceable, imminent injury | No standing — lifetime‑permits claim fails for lack of imminent injury; comment‑based claims fail for lack of concrete, traceable harm from the procedural omission |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional obligation to assure standing)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing: injury‑in‑fact, traceability, redressability)
- Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (associational standing test)
- DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (standing is claim‑specific)
- Renal Physicians Ass’n v. HHS, 489 F.3d 1267 (need substantial likelihood that third party will change conduct to satisfy redressability)
- Dellums v. U.S. Nuclear Reg. Comm’n, 863 F.2d 968 (multi‑link causal chain requires substantial likelihood for each link)
- City of Waukesha v. EPA, 320 F.3d 228 (procedural‑rights claim requires showing procedural omission likely caused concrete injury)
- Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152 (procedural‑right challenges need injury beyond mere procedural error)
- Util. Solid Waste Activities Group v. EPA, 901 F.3d 414 (background on EPA's 2015 coal‑ash Rule)
- Exxon Mobil Corp. v. FERC, 571 F.3d 1208 (court will not consider new theories raised for first time at oral argument)