sboxermanFeatured Expert Column—Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

Can an environmental organization file suit under the Resource Conservation and Recovery Act’s (“RCRA”) citizen-suit provision claiming harm from stormwater runoff which could be, but was not, subject to limits under a Clean Water Act (“CWA”) permit? In a November 2, 2017 decision, Ecological Rights Foundation v. Pacific Gas and Electric Company, the U.S. 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 CWA and RCRA.  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 violated the CWA, because it discharged pollutants into the waters of the United States without a permit, and RCRA, because its handling, storage, or 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 CWA claim, reasoning that the company was not required to obtain a discharge permit for stormwater discharges.  After determining the plaintiff had Article III standing to sue under RCRA, the court held that the law’s “anti-duplication” provision barred suit.  Section 6905(a), the court reasoned, prevented enforcement of RCRA against activity that is regulated under the CWA and four other listed federal laws.

EcoRights appealed the trial court’s RCRA anti-duplication holding to the Ninth Circuit.  It did not appeal the court’s summary judgment order on the CWA 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 RCRA claim.

The unanimous decision first rejected PG&E’s argument that EcoRights lacked standing to sue.  The court’s reasoning on that issue is consistent with the judicial trend of setting a very low bar for environmental citizen-suit standing.  It is, however, also counter to the U.S. 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 had argued that such injuries were not concrete, but generalized as they may be shared by the many people who live in the Bay Area, but 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 did not establish a nexus between the discharges at issue and the plaintiff members’ use or enjoyment of the Bay.  The Ninth Circuit disagreed, finding that a plaintiff has standing if the discharges have some impact on the “Bay as a whole” and the members have alleged harms associated with their use of “the Bay.”  Indeed, the panel found 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 very loose description of a “particularized” harm—and leaves for “merits” an issue that the court should more properly consider as part of its standing analysis.

Next, the panel held EcoRights stated a valid RCRA claim.  Its analysis turned on the wording of RCRA’s anti-duplication provision and whether the CWA imposed a permitting requirement on PG&E’s activities.

As noted previously, the CWA allows, but does not require, EPA to mandate a source obtain a permits for the type of stormwater discharges caused by PG&E, and prior to EcoRight’s suit, EPA has not required a permit.  For RCRA’s anti-duplication provision to apply, the court reasoned, the relevant CWA provision must require actual regulation; a grant of discretion to EPA is not sufficient.

The anti-duplication section allows for overlap with five other environmental laws if RCRA’s application “is not inconsistent with the requirements” of the other statutes.  The Ninth Circuit maintained that Congress recognized that some overlap would occur in enforcement of the CWA and RCRA, and if “RCRA’s application were prohibited as to all matters potentially regulable under the CWA … the integration clause in RCRA 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 analyzed EPA’s decision not to require stormwater discharge permits for such industrial sources of pollution as those EcoRights was challenging—runoff from disposed utility poles treated with hazardous chemicals.  It concluded that through CWA implementing regulations, EPA anticipated that such pollution would be addressed under other statutes, such as RCRA.  Thus, in the court’s opinion, EcoRights’ suit would not duplicate or be inconsistent with a CWA regulatory requirement.

In response to ongoing realignment of enforcement priorities at EPA, environmental organizations 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 very low bar for Article III standing in environmental citizen suits, but the ruling also facilitates the use of RCRA to regulate some business activity that otherwise falls within another statute’s jurisdiction.  And more importantly, Ecological Rights Foundation arguably undercuts the prosecutorial discretion Congress granted to EPA in statutes like the CWA, which allows but doesn’t mandate federal regulatory action in some situations.  It’s unclear whether Congress intended for private organizations to step in and regulate through lawsuits when EPA chooses not to.