As previously reported in the
Spring 2015 issue of The Climate Report, the Carbon
Sequestration Council, its member Southern Company Services, and
the American Petroleum Institute ("API") filed a petition
for review of EPA's final rule promulgated under the Resource
Conversation and Recovery Act ("RCRA") that conditionally
excluded from the definition of "hazardous waste"
hazardous carbon dioxide streams that are injected into Class IV
wells for purposes of geologic sequestration and that meet other
criteria. Carbon Sequestration Council & S. Co. Servs. Inc. v.
EPA, No. 14-1046.
The petitioners argued that the carbon dioxide emissions used in
geologic sequestration are not "solid waste" and,
therefore, not subject to RCRA, negating the need for the
conditional exclusion.
On June 2, 2015, the D.C. Circuit dismissed the petition, holding
that the petitioners lacked standing to challenge EPA's
determination that supercritical carbon dioxide stream at issue are
not RCRA solid waste. In their petition, the Carbon Sequestration
Council and API asserted representational standing on behalf of
Southern Company Services, Inc. and Occidental Oil and Gas,
respectively. With respect to the Carbon Sequestration Council and
Southern, the panel concluded that Southern had failed to allege
that it uses or intends to use any Class VI wells and, therefore,
failed to establish that it would be injured by the rule. The court
rejected Southern's argument that it is harmed by EPA's
decision to include captured supercritical carbon dioxide stream in
the definition of "solid waste" because Southern would
have to incur costs determining if any carbon dioxide stream it
captures is a RCRA hazardous waste. The court found persuasive
EPA's unequivocal statements in the final rule, its briefing,
and oral argument that the solid waste determination applied only
to supercritical carbon dioxide stream injected into Class VI wells
for the purpose of geologic sequestration, and not to any of the
applications and services in which Southern used supercritical
carbon dioxide stream.
For its part, Occidental acknowledged that it was not directly
regulated by the rule and conceded that EPA explicitly declined to
assert jurisdiction over the activities engaged in by Occidental.
The affidavits submitted by Occidental, instead, asserted that the
rule "will influence Occidental's business
decisions," forcing it to incur costs in anticipation of
future regulation. The court held that Occidental's
"speculative concern that EPA may choose to regulate its
business at some point in the indefinite future" is not enough
to demonstrate injury sufficient to meet the threshold Article III
standing requirements.
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