DC Cir. Dismisses Challenge to EPA “Solid Waste” Determination for Lack of Standing


On June 2, the U.S. Court of Appeals for the District of Columbia Circuit decided the case of Carbon Sequestration Council and Southern Company Services, Inc., v. EPA on standing grounds. In 2010, EPA promulgated a rule establishing a new category of Safe Drinking Water Act injection wells, known as “Class VI” wells, to respond to the need to sequester large amounts of carbon dioxide necessitated by EPA’s new carbon capture and storage program. In connection with this rulemaking, EPA also determined that “supercritical carbon dioxide streams” managed in Class VI wells were “solid waste” within the meaning of the Resource Conservation and Recovery Act (RCRA). Believing that EPA’s action was inconsistent with RCRA and a number of DC Circuit precedents, this determination was challenged. However, the Court of Appeals held that none of the petitioners had standing to litigate this issue. Under circuit precedent, the Court of Appeals ruled that they could not show that they suffered any injuries attributable to this new rule although they were otherwise deeply engaged in the carbon capture and storage program.