Can an environmental organisation file suit under the Resource Conservation and Recovery Act's citizen suit provision claiming harm from stormwater run-off which could be, but was not, subject to limits under a Clean Water Act permit? In the November 2 2017 decision Ecological Rights Foundation v Pacific Gas and Electric Company, the US Court of Appeals for the Ninth Circuit held that it could. The ruling, which also rejected the defendant's arguments opposing Article III standing, is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations.
The Ecological Rights Foundation (EcoRights) had filed suit against PG&E under the citizen suit provisions of both the Clean Water Act and the Resource Conservation and Recovery Act. According to the complaint, the methods used by the PG&E facilities to service utility poles allowed chemicals and oils onto the ground which were then carried by stormwater into the San Francisco and Humboldt Bays. EcoRights alleged that PG&E's activities had violated:
- the Clean Water Act, because it discharged pollutants into the waters of the United States without a permit; and
- the Resource Conservation and Recovery Act, because its handling, storage and disposal of solid waste may have presented an "imminent and substantial endangerment" to health and the environment.
The district court granted PG&E summary judgment on the plaintiff's Clean Water Act claim, reasoning that the company had not needed to obtain a discharge permit for stormwater discharges. After determining that the plaintiff had Article III standing to sue under the Resource Conservation and Recovery Act, the court held that the law's anti-duplication provision barred suit. Section 6905(a), the court reasoned, prevented enforcement of the Resource Conservation and Recovery Act against activity that is regulated under the Clean Water Act and four other listed federal laws.
EcoRights appealed the trial court's Resource Conservation and Recovery Act anti-duplication holding to the Ninth Circuit. It did not appeal the court's summary judgment order on the Clean Water Act claim. The Environmental Protection Agency (EPA) filed an amicus brief in support of EcoRights. In its opposition brief, PG&E objected to the lower court's holding that EcoRights had Article III standing to pursue its Resource Conservation and Recovery Act claim.
The unanimous decision first rejected PG&E's argument that EcoRights lacked standing to sue. The court's reasoning on that issue was consistent with the judicial trend of setting a low bar for environmental citizen suit standing. However, it was also counter to the Supreme Court's Spokeo Inc v Robins ruling and its admonition that to be a redressable injury in fact, a harm must be both "concrete" and "particularized".
In support of constitutional standing, EcoRights presented members' statements asserting that pollution in the San Francisco Bay, including from stormwater run-off, had reduced their ability to enjoy local seafood, observe local birds and other wildlife, and to sail or swim in the bay. PG&E argued that such injuries were general rather than concrete, as they may be shared by the many people who live in the Bay Area. The court held that the "fact that a harm is shared does not necessarily render it a generalized grievance".
PG&E also argued that EcoRights had failed to establish a nexus between the discharges at issue and the plaintiff members' use or enjoyment of the bay. The Ninth Circuit disagreed, finding that the plaintiff had standing because the discharges had some impact on the "Bay as a whole" and the members had alleged harms associated with their use of the bay. Indeed, the panel found that whether the discharges from PG&E's facility were "actually significant enough to harm the affected area is a merits question, not a standing question". Yet, that formulation is a loose description of a particularised harm – and leaves for merits an issue that the court should more properly consider as part of its standing analysis.
Next, the panel held that EcoRights had stated a valid Resource Conservation and Recovery Act claim. Its analysis turned on the wording of the Resource Conservation and Recovery Act's anti-duplication provision and whether the Clean Water Act imposed a permitting requirement on PG&E's activities.
Again, the Clean Water Act allows, but does not require, the EPA to mandate a source obtain a permit for the type of stormwater discharges caused by PG&E, and before EcoRight's suit, the EPA had not required a permit. For the Resource Conservation and Recovery Act's anti-duplication provision to apply, the court reasoned, the relevant Clean Water Act provision must require actual regulation; a grant of discretion to the EPA was insufficient.
The anti-duplication section allows for overlap with five other environmental laws if the Resource Conservation and Recovery Act's application "is not inconsistent with the requirements" of the other statutes. The Ninth Circuit maintained that Congress has recognised that some overlap may occur in enforcement of the Clean Water Act and the Resource Conservation and Recovery Act, and if:
"the Resource Conservation and Recovery Act's application were prohibited as to all matters potentially regulable under the Clean Water Act… the integration clause in the Resource Conservation and Recovery Act section 1009(b)(1) would serve little purpose."
The opinion cited a number of persuasive authorities that supported its reading of the anti-duplication provision, including a 1984 Department of Justice Office of Legal Counsel determination.
The court analysed the EPA's decision not to require stormwater discharge permits for such industrial sources of pollution as those that EcoRights was challenging (ie, run-off from disposed utility poles treated with hazardous chemicals). It concluded that through Clean Water Act implementing regulations, the EPA anticipated that such pollution would be addressed under other statutes, such as the Resource Conservation and Recovery Act. Thus, in the court's opinion, EcoRights' suit would not duplicate or be inconsistent with a Clean Water Act regulatory requirement.
In response to ongoing realignment of enforcement priorities at the EPA, environmental organisations have pledged to fill the federal courts with citizen suits. Those groups have no doubt cheered the Ninth Circuit's Ecological Rights Foundation decision. It not only embraces a low bar for Article III standing in environmental citizen suits, but also facilitates the use of the Resource Conservation and Recovery Act to regulate some business activity that otherwise falls within another statute's jurisdiction. More importantly, Ecological Rights Foundation arguably undercuts the prosecutorial discretion that Congress granted to the EPA in statutes like the Clean Water Act, which allows but does not mandate federal regulatory action in some situations. It is unclear whether Congress intended for private organisations to step in and regulate through lawsuits when the EPA chooses not to.
For further information on this topic please contact Samuel B Boxerman, Terence T Healey or Kenneth W Irvin at Sidley Austin LLP office by telephone (+1 202 736 8000) or email ([email protected], [email protected] or [email protected]). The Sidley Austin LLP website can be accessed at www.sidley.com.
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