Circuit Dumps Dump Case
Recycling Network, Inc. v. U.S. Envtl. Protection Agency, 429 F.3d
1109 (D.C. Cir. 2005)
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 Agencys
(EPAs) 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.
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
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
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.
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).
4. Id. at 1111.
Recycling Network .
7. GrassRoots at 1111.
8. Id. at 1111-12 (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)).
10. A bioreactor is a landfill that uses
liquid in order to increase the rate of biodegradation. Id.
11. Id at 1112.