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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