NATURAL RESOURCES DEFENSE COUNCIL and Sierra Club, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents. American Chemistry Council, Intervenor.
Nos. 98-1379, 98-1429, 98-1431
United States Court of Appeals, District of Columbia Circuit
Argued May 12, 2014. Decided June 27, 2014.
755 F.3d 1010
Norman L. Rave, Jr., Attorney, United States Department of Justice, argued the cause for the respondents. Robert G. Dreher, Acting Assistant Attorney General, and Steven Silverman and Alan H. Carpien, Attorneys, United States Environmental Protection Agency, were on brief. Cynthia J. Morris, and Christopher S. Vaden, Attorneys, United States Department of Justice, and Lois J. Schiffer, Attorney, National Capital Planning Commission, entered appearances.
Michael W. Steinberg argued the cause for the intervenor. David M. Kerr and Leslie A. Hulse were on brief.
Thomas Sayre Llewellyn, Harry M. Ng and Deanne M. Ottaviano were on brief for amici curiae American Petroleum Institute et al. in support of the respondents.
Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
Petitioners Natural Resources Defense Council, Sierra Club and Environmental
I.
RCRA, codified at
Until 1985, EPA regulations expressly exempted from section 6924‘s hazardous waste standards “material . . . being burned as a fuel for the purpose of recovering usable energy,” under the theory that such material was not “discarded,” 40 C.F.R. § 261.2(c)(2) (1984), and therefore not “solid waste,” as defined in
Section 6924(q) governs “[h]azardous waste used as fuel” and mandates that EPA regulate entities that produce, burn for energy recovery or distribute/market hazardous-waste-derived fuel. In particular, it provides that EPA “shall promulgate regulations establishing . . . as may be necessary to protect human health and the environment“: “(A) standards applicable to the owners and operators of facilities which produce a fuel . . . from any hazardous waste identified or listed under [42 U.S.C. § 6921], . . . (B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any [such] fuel . . . or any fuel which otherwise contains any hazardous waste . . . and (C) standards applicable to any person who distributes or markets any [such] fuel . . . or any fuel which otherwise contains any hazardous waste.”
EPA‘s stated rationale for the Comparable Fuels Exclusion was that EPA “has discretion to classify . . . as a fuel product, not as a waste” a “hazardous waste-derived fuel [that] is comparable to a fossil fuel in terms of hazardous and other key constituents and has a heating value indicative of a fuel.” Id. at 33,783. Under this rationale, EPA explained, it “can reasonably determine that a material which is a legitimate fuel and which contains hazardous constituents at levels comparable to fossil fuels is not being ‘discarded’ within the meaning of RCRA section 1004(27) [
II.
We have subject matter jurisdiction to review the petitions under
A. Standing
“Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any exercise of our jurisdiction.” Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Moreover, “the party invoking the court‘s jurisdiction . . . bears the burden of demonstrating that it satisfies the ‘irreducible constitutional minimum’ of standing: (1) an ‘injury in fact’ that is ‘concrete and particularized’ as well as ‘actual or imminent‘; (2) a ‘causal connection’ between the injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, ‘that the injury will be redressed by a favorable decision.‘” Ark Initiative v. Tidwell, 749 F.3d 1071, 1075 (D.C.Cir.2014) (quoting Lujan, 504 U.S. at 560-61 (quotation marks and brackets omitted)). The Environmental Petitioners claim representational standing on behalf of their members. Accordingly, each must demonstrate that “[1] its members would otherwise have standing to sue in their own right, [2] the interests it seeks to protect are germane to the organization‘s purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members.” Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C.Cir.2013).
The Environmental Petitioners have met their burden of demonstrating standing on behalf of their members. They have submitted declarations of long-time members who spend time near facilities which, as a result of the Comparable
Intervenor American Chemistry Council challenges the Environmental Petitioners’ standing, asserting they did not demonstrate that as of the time the petitions were filed, there was a “substantial probability” that a facility located near one of their members would burn comparable fuels, thereby causing the alleged injury—largely because they do not aver any facility had then provided notice of such burning—either to the applicable RCRA director or through newspaper publication—prerequisites under the 1998 Rule to burning comparable fuels.4 See Br. for Intervenor 14-15; 40 C.F.R. § 261.38(b)(2); see also Chamber of Commerce v. EPA, 642 F.3d 192, 199-200 (D.C.Cir.2011) (petitioner bears burden to “show a ‘substantial probability’ that it has been or will be injured, that the defendant caused its injury, and that the court could redress that injury“; “standing is assessed as of the time a suit commences” (brackets, capitalization and quotation marks omitted)). We disagree.
It is “well-established . . . that standing will lie where ‘a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff‘s injuries, if that conduct would allegedly be illegal otherwise.‘” Am. Trucking Ass‘n v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 248 (D.C.Cir.2013) (quoting Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440 (D.C.Cir.1998) (en banc)). This is precisely the case here. Once EPA promulgated the Comparable Fuels Exclusion, it was “‘a hardly-speculative exercise in naked capitalism’ to predict that facilities would take advantage of it to burn hazardous-waste-derived fuels rather than more expensive fossil fuels.” Id. (inferring that “motor carriers would respond to the hours-increasing provisions by requiring their drivers to use them and work longer days” (quoting Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 135 (D.C.Cir.2006))). And the Intervenor does not dispute that, as it turned out, many facilities did just that. In fact, one facility in proximity to the Environmental Petitioners’ members—the Chemical Co. Baton Rouge Plastics Plant—had pending RCRA applications to combust hazardous waste in its boilers (subject to RCRA regulation) before the 1998 Rule issued—which applications it promptly withdrew in May 1999 when it achieved compliance with the Comparable Fuels Exclusion and could therefore burn such fuels free from RCRA regulatory constraints. See Br. for Pet‘rs, Decls. Add. 37 (May 17, 1999 Letter from Exxon Chemical Co. Baton Rouge Plastics Plant manager to Louisiana Department of En-
The Intervenor also asserts that the Environmental Petitioners have not shown that burning comparable fuels is any more dangerous than burning fossil fuels and therefore they have not demonstrated the possibility of any injury from the Comparable Fuels Exclusion. “In EPA‘s expert judgment,” they note, “burning these comparable fuels will have roughly the same risks, and the same affect [sic] on air quality, as burning commercially available virgin fuels.” Br. for Intervenor 21. The Environmental Petitioners, however, are challenging EPA‘s assessment of the Comparable Fuels Exclusion‘s risks—and we “assume for standing purposes” that the Environmental Petitioners are “correct on the merits.” See Sierra Club v. EPA, 699 F.3d 530, 533 (D.C.Cir.2012).5
In addition, both EPA and the Intervenor challenge the standing of petitioner Environmental Technology Council, “a national non-profit trade association of commercial firms that provide technologies and services for recycling, treatment, and secure disposal of industrial and hazardous wastes.” Petitioners’ Rule 26.1 Disclosure Statement at 2 (Feb. 7, 2014). We agree with EPA that under our precedent, the Environmental Technology Council‘s interest in the litigation—“to protect its members’ competitive position in selling greater quantities of waste treatment and disposal services,“—“does not fall within the zone of interests” that RCRA is intended to protect. Br. for Resp. 18 (citing Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 922-23 (D.C.Cir.1989)); see also Sierra Club v. EPA, 292 F.3d 895, 902-903 (D.C.Cir.2002); Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 871 (D.C.Cir.2001). Environmental Technology Council therefore lacks a cause of action and we deny its petition for review. See Lexmark, Int‘l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1388 (2014).
B. Statutory Construction
On the merits, the Petitioners first contend the Comparable Fuels Exclusion is inconsistent with the language of section 6924(q). We review EPA‘s interpretation of RCRA—a statute it is charged with administering—under the familiar two-step analysis of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Am. Chem. Council v. EPA, 337 F.3d 1060, 1063 (D.C.Cir.2003). Under Chevron:
We first ask “whether Congress has directly spoken to the precise question at issue,” in which case we “must give effect to the unambiguously expressed intent of Congress.” If the “statute is silent or ambiguous with respect to the specific issue,” however, we move to the second step and defer to the agency‘s interpretation as long as it is “based on a permissible construction of the statute.”
Natural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C.Cir.2013) (quoting Chevron, 467 U.S. at 842-43). We stop on Chevron step 1 because we agree with the Petitioners that the Congress spoke directly to the question whether EPA may exclude what it calls “comparable fuels“—and foreclosed their exclusion.
Section 6924(q) unequivocally provides that EPA “shall promulgate regulations
From the statute‘s mandatory and inclusive language we can only conclude the Congress intended to require that EPA regulate the production, burning for energy recovery and distributing/marketing of all such fuels derived from all listed hazardous wastes—with the sole express exclusions of (1) certain oil-containing petroleum refinery wastes that are converted into petroleum coke and (2) facilities that burn only de minimis quantities of hazardous waste, see
EPA argues in its brief that the Comparable Fuels Exclusion is itself a “standard” within the meaning of section 6924(q), which requires only that EPA establish “standards . . . as may be necessary to protect human health and the environment,”
The rationale EPA now offers—that by setting criteria for exclusion from section 6924 regulation, it was in fact “establishing standards” under section 6924 specifications—is entirely post hoc. Accordingly,
In support of its rationale as expressed in the 1998 Rule—that hazardous wastes recycled for energy recovery are excluded from section 6924(q)‘s “standard” mandate—EPA relies on Circuit precedent that has upheld EPA‘s characterization of recycled materials as not “discarded” and therefore not “waste” subject to RCRA hazardous waste regulation. In AMC I, for example, we concluded at Chevron step 1 that RCRA‘s “solid waste” definition precludes EPA from regulating materials produced in the oil refining process to be recycled through reintroduction at the appropriate stage of the refining process—because the Congress “clearly and unambiguously expressed its intent that ‘solid waste’ (and therefore EPA‘s regulatory authority) be limited to materials that are ‘discarded’ by virtue of being disposed of, abandoned, or thrown away.” 824 F.2d at 1193. Accordingly, the term‘s plain meaning excludes materials that “are destined for beneficial reuse or recycling in a continuous process by the generating industry itself,” such as the recycled materials there. Id. at 1186 (emphasis omitted); accord Ass‘n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1056 (D.C.Cir.2000) (“[A]t least some of the secondary material EPA seeks to regulate as solid waste is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away. Once again, ‘by regulating in-process secondary materials, EPA has acted in contravention of Congress’ intent’ because it has based its regulation on an improper interpretation of ‘discarded’ and an incorrect reading of our AMC I decision.” (quoting AMC I, 824 F.2d at 1193)).
On the flip side, in Safe Food & Fertilizer v. EPA, 350 F.3d 1263 (D.C.Cir.2003), we upheld as permissible under Chevron step 2 EPA‘s interpretation of the “solid waste” definition to exclude as not “discarded” industrial process byproducts recycled to produce zinc fertilizers as well as the fertilizers themselves. Id. at 1269-71; see also Am. Mining Cong. v. EPA, 907 F.2d 1179, 1186 (D.C.Cir.1990) (“Nothing in AMC [I] prevents the agency from treating as ‘discarded’ the wastes at issue in this case, which are managed in land disposal units that are part of wastewater treatment systems.“) (emphases omitted). None of the cited cases, however, involved fuels burned for energy recovery so as to come under section 6924(q), which, as we explained in AMC I, “deem[s]” the materials burned for energy recovery to be “‘discarded’ and therefore within the statutory
Finally, EPA contends that the “Petitioners’ claim that the Comparable Fuels Rule is inconsistent with section 6924(q) has been waived because it was not raised in comments during the rulemaking.” Br. for Resp‘t 21; see Natural Res. Def. Council v. EPA, 25 F.3d 1063, 1073-74 (D.C.Cir.1994) (“We do not reach the merits of this challenge because petitioners failed to raise this question . . . before the agency during the notice and comment period. They have therefore waived their opportunity to press this argument in court.“); see also Military Toxics Project v. EPA, 146 F.3d 948, 956-57 (D.C.Cir.1998). In response, the Petitioners point to two comments they claim raised their statutory argument. See Reply Br. 9-10. First, petitioner Environmental Technology Council submitted a comment criticizing EPA‘s “implementing approach” as an attempt to defer
Therefore, the Agency‘s comparable fuels proposal will likely result in higher exemption concentrations than levels that would normally be derived using a risk-based approach. Such an approach would violate the clear Congressional mandate in Section 3004(q) of RCRA to regulate the burning of hazardous waste for energy recovery “as may be necessary to protect human health and the environment.”
JA 374.
We agree with EPA that both comments seem to focus more on the way EPA implemented the Comparable Fuels Exclusion than on its statutory authority vel non to create any such exclusion. Nonetheless, EPA‘s response to Molten Metal‘s comment suggests that EPA understood Molten Metal to challenge EPA‘s statutory authority to exclude comparable fuels in the first place and affirms its authority to do so: “Section 3004(q) applies to hazardous wastes which are burned for energy recovery. The provi-
For the foregoing reasons, we grant the Environmental Petitioners’ petitions for review and vacate the Comparable Fuels Exclusion codified at 40 C.F.R. §§ 261.4(a)(16) and 261.38. We deny Environmental Technology Council‘s petition for review.
So ordered.
KAREN LECRAFT HENDERSON
UNITED STATES CIRCUIT JUDGE
Notes
(q) Hazardous waste used as fuel
(1) Not later than two years after November 8, 1984, and after notice and opportunity for public hearing, the Administrator shall promulgate regulations establishing such—
(A) standards applicable to the owners and operators of facilities which produce a fuel—
(i) from any hazardous waste identified or listed under section 6921 of this title, or
(ii) from any hazardous waste identified or listed under section 6921 of this title and any other material;
(B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any fuel produced as provided in subparagraph (A) or any fuel which otherwise contains any hazardous waste identified or listed under section 6921 of this title; and
(C) standards applicable to any person who distributes or markets any fuel which is produced as provided in subparagraph (A) or any fuel which otherwise contains any hazardous waste identified or listed under section 6921 of this title;
as may be necessary to protect human health and the environment. Such standards may include any of the requirements set forth in paragraphs (1) through (7) of subsection (a) of this section as may be appropriate. Nothing in this subsection shall be construed to affect or impair the provisions of section 6921(b)(3) of this title. For purposes of this subsection, the term “hazardous waste listed under section 6921 of this title” includes any commercial chemical product which is listed under section 6921 of this title and which, in lieu of its original intended use, is (i) produced for use as (or as a component of) a fuel, (ii) distributed for use as a fuel, or (iii) burned as a fuel.