Home » Case Summaries » 2017 » Ecological Rights Foundation v. Pacific Gas & Electric Co., 874 F.3d 1083 (9th Cir. 2017).

 
 

Ecological Rights Foundation v. Pacific Gas & Electric Co., 874 F.3d 1083 (9th Cir. 2017).

 

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Ecological Rights Foundation (EcoRights), an environmental organization, filed suit against Pacific Gas & Electric Company (PG&E) under the citizen suit provisions of both the Clean Water Act (CWA)[1] and the Resource Conservation and Recovery Act (RCRA).[2] EcoRights alleged PG&E violated both the CWA and RCRA by discarding wood treatment chemicals at its facilities in ways that resulted in unlawful discharges into San Francisco Bay and Humboldt Bay (the Bays). After determining that EcoRights had organizational standing, the United States District Court for the Northern District of California granted summary judgment to PG&E on both the CWA claim and the RCRA claim.[3] Reviewing the RCRA claim alone, the United States Court of Appeals for the Ninth Circuit reversed.

According to the complaint, PG&E used its service facilities to store and handle new, used, and discarded wooden utility poles that had been treated with pentachloraphenol (PCP). PCP contains dioxins, which are chemical impurities known to increase cancer risks. EcoRights alleged that drilling, cutting, moving, and storing PCP-treated wood had resulted in the spread of chemically treated sawdust and woodchips on the grounds of PG&E facilities. In its first claim, EcoRights alleged that PG&E’s activities violated the CWA by discharging pollution into the Bays without a permit. In its second claim, EcoRights alleged that PG&E violated RCRA by contributing to the handling, storage, or disposal of solid waste which may present an imminent and substantial endangerment to health and the environment in and around the Bays. EcoRights claimed that these violations occurred when PG&E’s stormwater conveyance systems and company vehicle tires carried PCP-infused waste offsite, resulting in discharges into the bays.

On the issue of standing, the district court held and the Ninth Circuit affirmed that EcoRights had organizational standing to pursue its claims. EcoRights presented declarations from several of its members alleging particularized harms resulting from pollution of the Bays. Among these harms were reports that members were avoiding local seafood, avoiding recreational activities, and experiencing reduced enjoyment of sailing and bird-watching. PG&E argued that these allegations of injury were too generalized, as such injuries might be shared by millions of people who visit the Bays. The Ninth Circuit rejected this argument on the grounds that an impermissibly generalized grievance for standing purposes refers to an injury which is abstract or indefinite, not one that may be widely shared. In this case, the Ninth Circuit found that the alleged injuries were sufficiently concrete and particularized to the members’ own recreational, aesthetic, and spiritual uses and enjoyment of the waters of the Bays. PG&E also argued that the EcoRights members were required to demonstrate that the alleged uses or enjoyment of the Bays were near PG&E facilities. The Ninth Circuit rejected this argument as well, finding that the injury requirement is satisfied in environmental cases where the individual shows 1) an interest in a particular place, and 2) that interest is impaired by a defendant’s conduct. There is a proximity concern only where a plaintiff fails to demonstrate use of the area affected by the challenged activity. Whether the members use an area near the alleged source of the environmental damage is immaterial.

The Ninth Circuit then analyzed the RCRA claim, which turned on the overlap between the CWA and RCRA and whether discharges subject to the CWA may also be regulated under RCRA. The district court had found that the CWA applied to the stormwater discharges at issue because under the CWA, the United States Environmental Protection Agency (EPA) had the power to require permits for them, even though it had chosen not to do so. The district court then held that the RCRA claim failed because RCRA’s “anti-duplication” provision precluded application of RCRA to discharges subject to the CWA.

First, the Ninth Circuit addressed PG&E’s stormwater discharges. Beginning its analysis with the language of the statute, the Ninth Circuit observed that the anti-duplication provision limited the application of RCRA with respect to “any activity or substance which is subject to” the CWA, the Safe Drinking Water Act, the Atomic Energy Act, and the Marine Protection, Research and Sanctuaries Act.[4] The anti-duplication provision then laid out an exception, providing that RCRA could overlap with the four named statutes to the extent that its application was “not inconsistent with the requirements” of those statutes.[5] Using the plain meaning of “inconsistent” to construe the text, the Ninth Circuit reasoned that the anti-duplication provision does not bar RCRA’s application, unless the overlapping requirements under RCRA and the CWA are mutually repugnant or contradictory, such that causing the application of one implies the abrogation or abandonment of the other.

The Ninth Circuit further explained that the context of the anti-duplication provision within RCRA supported that reading. Specifically, two other provisions in RCRA were meaningful only if the potential for waste regulation under CWA would not, on its own, bar RCRA’s application. The first was RCRA’s “integration” provision, which required EPA to administer RCRA in a coordinated manner that avoids duplication, “to the maximum extent practicable, with the appropriate provisions” of other environmental statutes, when doing so was “consistent with the goals and policies expressed” in RCRA and the other statutes.[6] The Ninth Circuit reasoned that the CWA’s inclusion in the integration provision indicated Congress recognized there would be overlapping coverage between the CWA and RCRA. Thus, if all matters potentially open to regulation under the CWA were prohibited from regulation under RCRA, the integration clause would serve little purpose. The second provision that would be rendered meaningless was RCRA’s definition of “solid wastes,” which controlled its jurisdiction.[7] RCRA’s definition of “solid wastes” specifically excludes industrial discharges which are point sources subject to permits under the CWA. The Ninth Circuit reasoned that if any potential regulation of any substance under the CWA were enough to trigger the anti-duplication provision and bar the application of RCRA, the exclusion of substances subject to CWA permits would be superfluous. Finally, the Ninth Circuit turned to persuasive authorities to support its reading of the anti-duplication provision, citing other federal courts as well as the Department of Justice’s Office of Legal Counsel.[8] In light of this reading of RCRA’s anti-duplication provision, the Ninth Circuit found unavailing PG&E’s argument that EPA’s decision not to impose CWA permit requirements barred the application of RCRA. Rather, because there were no legal requirements imposed on the stormwater discharges under the CWA, there was no legal requirement that could be inconsistent with RCRA. Thus, RCRA’s application was not barred.[9]

Lastly, the Ninth Circuit addressed the second part of EcoRights’ RCRA claim, in which EcoRights alleged that PG&E had discharged pollution into the Bays via “tire tracking.”[10] On this issue, the district court had concluded that EcoRights had failed to provide sufficient evidence of actual transmission of pollutants through tire tracking. The Ninth Circuit affirmed the district court’s holding.

In sum, the Ninth Circuit affirmed that EcoRights had organizational standing to pursue its claims and affirmed the district court’s holding that there was insufficient evidence on the tire tracking theory under the RCRA claim. In reversing the district court’s grant of summary judgment, the Ninth Circuit held that RCRA’s anti-duplication provision did not bar the application of RCRA unless doing so would contradict a requirement imposed by the CWA or any other statute listed in the provision. Thus, the absence of a CWA permit requirement did not trigger RCRA’s anti-duplication provision and EcoRights’ RCRA claim as to PG&E’s alleged stormwater discharges was not barred. The Ninth Circuit remanded for further consideration.

Footnotes    (↵ returns to text)

  1. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012).
  2. 42 U.S.C. §§ 6901–6992k (2012).
  3. Ecological Rights Found. v. Pac. Gas & Elec. Co., No. 10-CV-00121-RS, 2015 WL 537771, at *1 (N.D. Cal. Jan. 30, 2015).
  4. 42 U.S.C. § 6905(a).
  5. Id.
  6. Id. § 6905(b)(1).
  7. Id. § 6903(27); see also id. § 6903(5).
  8. The Ninth Circuit also noted that EPA filed a brief as amicus curiae in this case and appeared at argument in support of EcoRights, arguing that RCRA’s anti-duplication provision did not restrict the reach of the citizen suit.
  9. The Ninth Circuit also quickly disposed of PG&E’s alternative argument that its stormwater discharges were subject to CWA requirements through municipal storm sewer system permits required by local government agencies. Any potential requirements under municipal permits were not relevant to RCRA’s application.
  10. Tire tracking occurs when vehicles pick up contaminants on their tires and carry them offsite.
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