D.C. Circuit Dismisses Environmental Interest Groups’ Lawsuit Challenging U.S. EPA’s Approval of Oklahoma’s Coal Ash Plan under RCRA

September 2022

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 2, Number 11

On July 26, 2022, a unanimous panel of the United States Court of Appeals for the D.C. Circuit dismissed Plaintiffs’ – Waterkeeper Alliance, Local Environmental Action Demanded Agency, and Sierra Club – lawsuit challenging the U.S. Environmental Protection Agency (“EPA”)’s approval of Oklahoma’s permitting program for coal ash facilities finding Plaintiffs lacked standing.  See Waterkeeper Alliance, Inc. et al., v. Regan, 41 F.4th 654 (D.C. Cir. 2022).

Background

RCRA, 42 U.S.C. § 6901 et seq., is the federal environmental law that creates a framework for managing hazardous and non-hazardous solid waste.  Subtitle D of RCRA contains the provisions for non-hazardous waste requirements.  In 2015, under the authority of Subtitle D, EPA adopted a rule for regulation of coal ash as non-hazardous waste (“2015 Rule”).  The 2015 Rule established guidelines for building, maintaining, and monitoring coal ash disposal sites. By a statutory amendment, one year later, Congress passed the Water Infrastructure Improvements for the Nation Act (“Improvements Act”), which amended RCRA to specifically address coal ash disposal units and incorporated the 2015 Rule by reference. (See 42 U.S.C. § 6945(d).) Under the amended Subtitle D, individual states can choose to develop their own permitting programs for in-state coal ash disposal units within their borders or submit to federal regulation. (Id. at § 6945(d)(1), (d)(2).)  If a state chooses to develop and implement its own program, the program must be equal to or more stringent than the federal standards, and approved by the EPA Administrator.  (See id. at § 6945(d)(1).)

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