D.C. Circuit Dumps Dump Case

GrassRoots Recycling Network, Inc. v. U.S. Envtl. Protection Agency, 429 F.3d 1109 (D.C. Cir. 2005)

Emily Plett-Miyake, 3L, Vermont Law School

In November, the U.S. Court of Appeals for the District of Columbia found that GrassRoots Recycling Network, Inc. (GrassRoots) did not have standing to seek review of the Environmental Protection Agency’s (EPA’s) rule allowing the director of an approved state landfill permitting program to issue research, development, and demonstration permits, and granting variances from certain criteria set by the EPA for sanitary landfills.

Background
The Resource Conservation and Recovery Act (RCRA)1 established “a comprehensive federal program to regulate the handling and disposal of solid waste.”2 There are two portions of the RCRA that the court considered in this case. The first is 42 U.S.C. §§ 6943(a)(3) and 6944(a)-(b), which require the EPA to “promulgate regulations containing criteria for determining which facilities shall be classified as landfills and which shall be classified as [prohibited] open dumps.”3 States are responsible for enforcing the minimum criteria required by the EPA for landfills, and must develop approved solid waste management plans that provide for the closing of all “open dumps.” The second relevant portion of RCRA is 42 U.S.C. § 6981(a)(6). Under this portion of RCRA, the EPA is instructed to conduct and encourage the coordination of research and development of new and improved methods of collecting and disposing of solid waste.

With hopes of stimulating new technological developments and alternative disposal processes for municipal solid waste, the EPA issued the Research, Development, and Demonstration Rule (RD&D Rule), allowing the director of an approved state landfill permitting program to issue research, development and demonstration permits granting variances from certain EPA criteria. One of the functions of these permits is to authorize the owner or operator of a landfill to use a design that does not conform to the usual criteria for run-on systems, the requirements for final cover, and the prohibition on adding liquids.4 The issuance of these permits is contingent on the inclusion in the permit of “terms and conditions at least as protective as the criteria [for municipal solid waste land fills] to assure protection of human health and the environment.”5

The GrassRoots Recycling Network (GrassRoots) is an activist organization seeking to “eliminate the waste of natural and human resources — to achieve Zero Waste” using “classic activist strategies to achieve corporate accountability for waste and public policies to eliminate waste, and to build sustainable communities.”6 GrassRoots petitioned for the review of the RD&D rule, claiming that it was beyond the powers of the EPA to issue, and arguing specifically that in issuing the rule the EPA “violated the RCRA by delegating to the States the ‘authority…to implement the [RD&D] permit process’ and ‘to waive certain national criteria’ for sanitary landfills.”7

Court Decision
The Court of Appeals, reviewing the decision of the EPA to promulgate the rule, focused on the standing to sue that is required by Article III of the U.S. Constitution. The court noted that the “‘irreducible constitutional minimum of standing’ has three elements: (1) injury in fact, (2) causation, and (3) redressability.”8 In the situation at hand, the court found that in order for GrassRoots to have standing to sue on behalf of its members it must meet the following conditions for associational standing: “(1) at least one of its members [must] have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit.”9 The court also noted that the burden was squarely on GrassRoots to support each element of its claim to have standing.

Seeking to meet this burden, GrassRoots submitted affidavits of two group members describing injuries they claimed to have suffered as a result of the RD&D rule. The group members claimed that they would not have bought their properties had they known that nearby landfills would be turned into “bioreactors” under the rule.10

The court rejected these claims of injury, however, noting that neither “is evidence of the ‘actual or imminent’ injury in fact required for standing to sue.”11 Rather, the future harms alleged by the individuals were, according to the court, “although by no means impossible,…neither actual nor imminent but wholly conjectural.”12

Conclusion
The court, finding that nothing in the record showed actual or imminent harms or injuries to the plaintiff or its members by the RD&D rule, held that GrassRoots did not meet the minimum constitutional requirements for associational standing. The court accordingly dismissed the petition.

ENDNOTES
1. 42 U.S.C. § 6901 et seq.
2. GrassRoots Recycling Network, Inc. v. U.S. Envtl. Protection Agency, 429 F.3d 1109, 1110 (D.C. Cir. 2005).
3. Id.
4. Id. at 1111.
5. Id.
6. GrassRoots Recycling Network .
7. GrassRoots at 1111.
8. Id. at 1111-12 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
9. Id. at 1111.
10. A bioreactor is a landfill that “uses liquid in order to increase the rate of biodegradation.” Id.
11. Id at 1112.
12. Id.