In re: Idaho Conservation League , 811 F.3d 502 ( 2016 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued May 12, 2015                  Decided January 29, 2016
    No. 14-1149
    IN RE: IDAHO CONSERVATION LEAGUE, ET AL.,
    PETITIONERS
    On Petition For Writ of Mandamus to the
    United States Environmental Protection Agency
    Amanda W. Goodin argued the cause for petitioners. With
    her on the petition for writ of mandamus, the reply thereto, and
    the supplemental brief was Jan Hasselman.
    John E. Sullivan, Attorney, U.S. Department of Justice,
    argued the cause for respondent. With him on the opposition to
    the petition of writ of mandamus and supplemental submission
    was John C. Cruden, Assistant Attorney General.
    Michael S. Giannotto argued the cause for movant-
    intervenor National Mining Association. With him on the
    opposition to the petition for writ of mandamus and
    supplemental brief were Matthew M. Hoffman and Brian T.
    Burgess.
    Kevin A. Gaynor, John P. Elwood, Jeremy C. Marwell, and
    Joshua S. Johnson were on the opposition to the petition for writ
    of mandamus and the responsive supplemental brief of movant-
    intervenor Freeport-McMoRan Inc.
    2
    Michael W. Steinberg, Leslie A. Hulse, Stacy R. Linden, and
    Matthew A. Haynie were on the opposition to the petition for
    writ of mandamus and the responsive brief for movant-
    intervenors Superfund Settlements Project, et al.
    Before: HENDERSON, ROGERS and MILLETT, Circuit Judges.
    Opinion for the Court filed by Circuit Judge ROGERS.
    ROGERS, Circuit Judge: Presently before the court is a joint
    motion by environmental petitioners and the Environmental
    Protection Agency for an order on consent. This matter began
    with a petition filed by six environmental organizations for
    issuance of a writ of mandamus directing EPA to promulgate the
    financial assurance regulations required by section 108(b) of the
    Comprehensive Environmental Response, Compensation, and
    Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9675.
    Section 108(b) provides that EPA “shall promulgate”
    regulations requiring “that classes of facilities establish and
    maintain evidence of financial responsibility consistent with the
    degree and duration of risk associated with the production,
    transportation, treatment, storage, or disposal of hazardous
    substances.” 
    Id. § 9608(b)(1).
    Thirty years later, EPA has yet
    to issue any regulations. Petitioners sought a declaration that
    EPA had unreasonably delayed in failing to issue any
    regulations under section 108(b) and an order directing EPA to
    issue financial assurance regulations by January 1, 2016 for the
    four industries EPA had previously identified as most needing
    them. Pet. 1.
    Petitioners and EPA have now filed a joint motion for an
    order on consent establishing an agreed upon schedule for a
    rulemaking for the hardrock mining industry and timetable by
    which EPA would consider whether other industries would be
    involved with a financial assurance rulemaking. Joint Mot. 3–4.
    3
    We grant the joint motion. At least one of the petitioners has
    standing under Article III of the Constitution, and because the
    joint motion resolves the issues presented by the petition for
    mandamus, the court has no occasion to decide whether EPA’s
    delay in promulgating section 108(b) regulations was
    unreasonable delay for which mandamus would lie.
    I.
    Congress enacted CERCLA “to promote the timely cleanup
    of hazardous waste sites and to ensure that the costs of such
    cleanup efforts were borne by those responsible for the
    contamination.” Burlington N. & Santa Fe Ry. Co. v. United
    States, 
    556 U.S. 599
    , 602 (2009) (internal quotation marks and
    citation omitted). CERCLA vests in EPA “‘broad power to
    command government agencies and private parties to clean up
    hazardous waste sites’ by or at the expense of the parties
    responsible for the contamination.” Gen. Elec. Co. v. Envtl.
    Prot. Agency, 
    360 F.3d 188
    , 189 (D.C. Cir. 2004) (quoting Key
    Tronic Corp. v. United States, 
    511 U.S. 809
    , 814 (1994)).
    CERCLA also authorizes EPA to undertake “response actions”
    — using funds from the Hazardous Substance Superfund —
    when there is a release or substantial threat of release of a
    hazardous substance, pollutant, or contaminant. 
    Id. (citing 42
    U.S.C. § 9604); see also 42 U.S.C. § 9611; 26 U.S.C. § 9507; El
    Paso Natural Gas Co. v. United States, 
    750 F.3d 863
    , 874–75
    (D.C. Cir. 2014); Superfund Implementation, Exec. Order No.
    12,580, 52 Fed. Reg. 2923 (Jan. 23, 1987). EPA may either
    replenish the expended funds through a cost recovery action
    against the parties responsible for the release, 42 U.S.C.
    § 9607(a), or seek to require the responsible parties themselves
    to undertake response actions through an administrative or court
    order. 
    Id. § 9606(a).
                                     4
    At issue are “financial assurance” or “financial
    responsibility” regulations, whereby those entities potentially
    responsible for the release of hazardous substances can put aside
    funding — or otherwise demonstrate that funding is available —
    to pay for any necessary cleanup or reclamation efforts. Section
    108(b) of CERCLA provides that “[b]eginning not earlier than
    five years after December 11, 1980, [EPA] shall promulgate
    requirements . . . that classes of facilities establish and maintain
    evidence of financial responsibility consistent with the degree
    and duration of risk associated with the production,
    transportation, treatment, storage, or disposal of hazardous
    substances.” 
    Id. § 9608(b)(1).
    In the intervening thirty years
    since section 108(b) took effect, EPA has made little progress
    toward promulgating any financial assurance regulations. Not
    until certain petitioners here sued in California did EPA identify
    which classes of facilities required financial assurance rules.
    Sierra Club v. Johnson, No. C 08-01409 WHA, 
    2009 WL 482248
    , *7–10 (N.D. Cal. Feb. 25, 2009). EPA published a
    priority notice that it would first develop CERCLA financial
    assurance rules for the hardrock mining industry. See
    Identification of Priority Classes of Facilities for Development
    of CERCLA Section 108(b) Financial Responsibility
    Requirements, 74 Fed. Reg. 37,213, 37,214 (July 28, 2009). In
    January 2010, EPA also issued an advanced notice of proposed
    rulemaking of its plan to develop “as necessary” financial
    assurance requirements for three additional industries: chemical
    manufacturing; petroleum and coal products manufacturing; and
    electric power generation, transmission, and distribution.
    Identification of Additional Classes of Facilities for
    Development of Financial Responsibility Requirements Under
    CERCLA Section 108(b), 75 Fed. Reg. 816, 816 (Jan. 6, 2010).
    EPA has repeatedly postponed the completion date for the
    hardrock mining regulations, and it has not indicated if a
    rulemaking will occur for the three other industries, or, since
    2011, even mentioned the rulemakings in its regulatory agenda.
    5
    On August 11, 2014, six environmental organizations
    petitioned this court for a writ of mandamus “directing EPA to
    finalize [CERCLA financial assurance] rules by January 1,
    2016, for the four industries already identified by EPA.” Pet. 1.
    Petitioners argued the passage of nearly thirty years since EPA
    was first charged by Congress with issuing such regulations
    amounts to an unreasonable delay warranting mandamus relief.
    
    Id. At oral
    argument on May 12, 2015, petitioners
    acknowledged that the January 2016 deadline was no longer
    feasible due to the passage of time, see Oral Arg. Recording at
    15:58–16:20, and EPA claimed that it had recently completed a
    “framework” for a hardrock mining proposed rule, 
    id. at 20:49–24:46.
    The court thereafter ordered the petitioners and
    EPA to confer on (1) the date by which EPA would propose and
    finalize financial assurance rules for the hardrock mining
    industry and (2) the date by which EPA would decide whether
    to propose rules for the three other industries EPA identified as
    possibly requiring financial assurance rules. Order (May 19,
    2015) (Judge Millett did not join as to (2)). EPA also was to file
    the “framework” with the court.
    Subsequently, the parties filed a joint motion for an order on
    consent establishing an agreed upon schedule for a rulemaking
    for the hardrock mining industry and a timetable by which EPA
    would determine whether to engage in financial assurance
    rulemaking for any of the three other industries. Joint Mot. 3–4.
    In particular, the parties agreed that EPA would begin the
    rulemaking process for the hardrock mining industry by
    December 1, 2016 and publish its notice of final action by
    December 1, 2017. The parties also agreed that EPA would
    decide by December 1, 2016 whether it would proceed with a
    rulemaking for any of the other three industries. If EPA decides
    to go forward with one or more rulemakings, then it must
    6
    complete final action for the first industry by December 2, 2020,
    the second industry by December 1, 2021, and the third industry
    by December 4, 2024. The parties may jointly stipulate to a
    change in the schedule, Joint Mot. 6–7, and if petitioners oppose
    an extension, EPA may file a motion seeking court approval, 
    id. 5. EPA
    would submit compliance status reports to the court
    every six months. 
    Id. 7. The
    joint motion states that the parties’
    agreement resolves the issues presented by the petition for
    mandamus. 
    Id. 1. The
    joint motion further sought to have this
    panel retain jurisdiction until the schedule had been completed.
    
    Id. 6–7. EPA
    also filed its “framework” with the court.
    II.
    As a threshold matter, the court must determine whether it
    has jurisdiction to consider the order proposed in the joint
    motion, and that requires determining whether petitioners have
    Article III standing to seek a court order on consent. See CTS
    Corp. v. Envtl. Prot. Agency, 
    759 F.3d 52
    , 57 (D.C. Cir. 2014);
    Natural Res. Def. Council v. Pena, 
    147 F.3d 1012
    , 1018–19
    (D.C. Cir. 1998); Swift & Co. v. United States, 
    276 U.S. 311
    ,
    324, 326 (1928); cf. Mut. of Omaha Ins. Co. v. Nat’l Ass’n of
    Gov’t Emps., Inc., 
    145 F.3d 389
    , 394 (D.C. Cir. 1998). Because
    the proposed order would grant procedural relief — a
    rulemaking — with respect to the hardrock mining industry,
    petitioners need show that at least one petitioner has standing to
    challenge the lack of financial assurance regulations in the
    hardrock mining industry. Whether EPA must engage in the
    other proceedings initially sought by petitioners through
    mandamus remains within EPA’s discretion under the schedule
    set forth in the proposed consent order. To the extent petitioners
    would obtain relief through the setting of a schedule, however,
    we have assumed they must show standing for that relief as well.
    7
    An organization has standing to bring suit on behalf of its
    members if: “(a) its members would otherwise have standing to
    sue in their own right; (b) the interests it seeks to protect are
    germane to the organization’s purpose; and (c) neither the claim
    asserted nor the relief requested requires the participation of
    individual members in the lawsuit.” Hunt v. Wash. State Apple
    Adver. Comm’n, 
    432 U.S. 333
    , 343 (1977). The court has no
    reason to doubt that the petitioners satisfy the second and third
    requirements for associational standing. “The issue before the
    court, then, is whether at least one [of the petitioner’s]
    member[s] . . . has standing under Article III.” Sierra Club v.
    Envtl. Prot. Agency, 
    292 F.3d 895
    , 898 (D.C. Cir. 2002). The
    “irreducible constitutional minimum” of Article III standing
    requires satisfaction of three elements: (1) a concrete and
    particularized and actual or imminent injury-in-fact that is (2)
    fairly traceable to the challenged action of the defendant (and
    not the result of the independent action of some third party not
    before the court) and (3) likely to be redressed by a favorable
    decision. Lujan v. Defs. of Wildlife, 
    504 U.S. 555
    , 560–61
    (1992). The petitioners’ burden of production is to support each
    of these elements “by affidavit or other evidence,” and their
    burden of proof is not to demonstrate certainty but to “show a
    ‘substantial probability’” that each of these elements has been
    met. Sierra 
    Club, 292 F.3d at 899
    (emphasis added).
    A.
    At least one petitioner has met Article III’s requirements
    with respect to hardrock mining. Through the declaration of
    John Robison, the Idaho Conservation League has shown that at
    least one of its members has suffered and continues to be
    threatened with ongoing and certainly impending injuries-in-fact
    that are caused by EPA’s failure to promulgate financial
    assurance regulations in the hardrock mining industry and that
    will be redressed by promulgation of such rules. See Clapper v.
    Amnesty Int’l USA, 
    133 S. Ct. 1138
    , 1143, 1148 (2013); Defs. of
    8
    
    Wildlife, 504 U.S. at 560
    –61. So long as one petitioner has
    standing, that suffices for the court to evaluate the merits of the
    order on consent: “[I]f one party has standing in an action, a
    court need not reach the issue of the standing of other parties
    when it makes no difference to the merits of the case,” Ry.
    Labor Execs. Ass’n v. United States, 
    987 F.2d 806
    , 810 (D.C.
    Cir. 1993) (citing Doe v. Bolton, 
    410 U.S. 179
    , 189 (1973)).
    Injury-in-fact. Robison lives, works, and recreates near
    hardrock mining facilities, and he is in harm’s way and will
    continue to be in harm’s way in the future. Petitioners focus on
    two sources of injury caused by hardrock mining sites: (1)
    hazardous releases from various currently operating or proposed
    hardrock mining facilities that harm their economic, health,
    aesthetic, and recreational interests and imminently threaten to
    do so into the future; (2) the substantial probability that they will
    continue to be harmed even after operations cease because
    cleanup of such sites can take a long time. As a result of
    unnecessarily prolonged cleanup and reclamation efforts, the
    threat of future harm to Robison is real.
    Robison has described in “substantial detail the injuries [he]
    fear[s] from ongoing and future mining operations.” Nat’l
    Wildlife Fed’n v. Hodel, 
    839 F.2d 694
    , 707 (D.C. Cir. 1988).
    Although Robison describes many examples where his
    recreational interests were harmed by arsenic-laden mine
    tailings and waste, he further explains that two mining projects
    in particular — the proposed Midas Gold project and the older
    Atlanta Gold mine — threaten his future enjoyment of the Idaho
    wilderness. Although the former project is still in the planning
    stage, the record establishes that the mine is likely to go forward
    even though it is not yet complete; the mining company has
    concrete plans to proceed, the mine would be profitable, and the
    mine continues to solicit financing to make the mine a reality.
    The mine may not be completed for some time, but Robison has
    9
    presented concrete evidence substantiating a significant risk he
    will be harmed by the proposed mine. See 
    Clapper, 133 S. Ct. at 1153
    –54; Defs. of 
    Wildlife, 504 U.S. at 572
    n.7. By contrast,
    the Atlanta Gold mine is currently operating and is known to
    discharge hazardous substances into the Boise River system, a
    source of water Robison frequents. Although the mine operator
    currently treats the discharge, Robison reasonably fears that
    such treatment will stop because the mine operator has a low net
    worth and there are currently insufficient financial assurances
    for future cleanup efforts.
    Causation and redressability. The record also establishes
    that both sets of harms are caused by the lack of financial
    assurance rules and would be redressed by EPA promulgating
    such rules. Where, as here, causation and redressability “hinge
    on the response of the regulated (or regulable) third party to the
    government action or inaction,” Defs. of 
    Wildlife, 504 U.S. at 562
    , “the petitioner bears the burden of ‘adduc[ing] facts
    showing that those [third-party] choices have been or will be
    made in such manner as to produce causation and permit
    redressability of injury,” Ctr. for Biological Diversity v. U.S.
    Dep’t of Interior, 
    563 F.3d 466
    , 478 (D.C. Cir. 2009)
    (alterations in original) (citation omitted). “Article III does not
    demand a demonstration that victory in court will without doubt
    cure the identified injury. . . . Our cases require more than
    speculation but less than certainty.” Teton Historic Aviation
    Found. v. U.S. Dep’t of Defense, 
    785 F.3d 719
    , 727 (D.C. Cir.
    2015) (citation omitted).
    With respect to mitigating ongoing hazardous releases, the
    lack of financial assurance requirements causes mine operators
    to release more hazardous substances than they might if such
    financial assurance requirements were in place. Although
    CERCLA requires operators to pay to clean up hazardous
    releases, see 42 U.S.C. § 9607(a), many avoid payment by
    10
    structuring their operations so they never have to pay. It is a
    common practice for operators to avoid paying environmental
    liabilities by declaring bankruptcy or otherwise sheltering assets.
    See Identification of Priority Classes of Facilities for
    Development of CERCLA Section 108(b) Financial
    Responsibility Requirements, 74 Fed. Reg. at 37,217; U.S.
    GOV’T ACCOUNTABILITY OFF., GAO-05-658, ENVIRONMENTAL
    LIABILITIES: EPA SHOULD DO MORE TO ENSURE THAT LIABLE
    PARTIES MEET THEIR CLEANUP OBLIGATIONS 1–2, 33, 58–59
    (2005). At the very least, this limits the incentive to adopt best
    practices, and in some circumstances may encourage operators
    to take on greater risks knowing they will never have to pay the
    costs. In view of these common practices, financial assurances
    would strengthen hardrock mining operators’ incentives to
    minimize ongoing hazardous releases. By making it more
    difficult for mine operators to avoid paying for the cleanup of
    their hazardous releases, basic economic self-interest means the
    operator will take cost-effective steps to minimize hazardous
    releases in order to minimize their environmental liabilities.
    The court has long relied on such economic and other
    incentives to find standing. See Teton Historic Aviation 
    Found., 785 F.3d at 725
    –26; Airlines for Am. v. Transp. Sec. Admin., 
    780 F.3d 409
    , 410–11 (D.C. Cir. 2015); Natural Res. Def. Council
    v. Envtl. Prot. Agency, 
    643 F.3d 311
    , 318 (D.C. Cir. 2011);
    Abigail Alliance for Better Access to Dev. Drugs v. Eschenbach,
    
    469 F.3d 129
    , 135–36 (D.C. Cir. 2006); United Transp. Union
    v. Interstate Commerce Comm’n, 
    891 F.2d 908
    , 912 n.7 (D.C.
    Cir. 1989). And the notion that financial assurance requirements
    deter environmental misconduct is hardly novel. As the Fourth
    Circuit Court of Appeals recognized in evaluating a similar
    financial assurance program, “[t]he incentive for safety is
    obvious: the availability and cost of a bond will be tied directly
    to the structural integrity of a facility and the soundness of its
    day-to-day operations.” Safety-Kleen, Inc. (Pinewood) v.
    11
    Wyche, 
    274 F.3d 846
    , 866 (4th Cir. 2001). “[S]loppy ‘design
    and operating procedures . . . are more likely to be avoided’ with
    the financial assurance requirements and the resulting incentive
    to reduce bond costs.” 
    Id. (alterations in
    original) (quoting
    Standards Applicable to Owners and Operators of Hazardous
    Waste Treatment, Storage, and Disposal Facilities; Financial
    Requirements, 47 Fed. Reg. 15,032, 15,044–45 (Apr. 7, 1982)).
    This incentives-based theory of standing is further
    supported by congressional and agency assessments. Such
    assessments may be considered: “[W]hile Congress cannot
    create standing on its own, it can provide legislative assessments
    which courts can credit in making standing determinations.”
    Nat’l Wildlife 
    Fed’n, 839 F.2d at 708
    ; see also Friends of the
    Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 
    528 U.S. 167
    ,
    185 (2000). As the Senate Committee Report observed in
    connection with the Superfund Improvement Act of 1985, “a
    major goal of [CERLCA’s] financial responsibility requirements
    is to enlist insurers to provide additional policing and incentives
    to monitor the behavior of their insureds . . . . It is often policy
    terms and conditions, as well as inspection and rate-making, that
    form the basis of the insurer’s ability to influence the insured to
    act carefully and responsibly.” S. REP. 99-11, at 47 (1985).
    EPA, too, has concluded that financial assurances play a critical
    preventative role by creating incentives for the proper handling
    of hazardous substances. See, e.g., ENVTL. PROT. AGENCY
    REGION 10 MINING TEAM, REGION 10 MINING FINANCIAL
    ASSURANCE STRATEGY 2 (2008); ENVTL. PROT. AGENCY,
    COMPLIANCE AND ENFORCEMENT NATIONAL PRIORITY:
    FINANCIAL RESPONSIBILITY UNDER ENVIRONMENTAL LAW 1
    (2005).
    Because hardrock mining is already subject to some
    financial assurance requirements, the impact of new financial
    assurance requirements may be reduced. Cf. Decl. of Barnes
    12
    Johnson, Dir. of Office of Res. Conservation and Recovery,
    Envtl. Prot. Agency ¶¶ 30–31 (Nov. 19, 2014) (citing Reducing
    Excessive Deadline Obligations Act of 2013, H.R. 2279, 113th
    Cong. § 104 (as passed by House, Jan. 9, 2014), and 160 CONG.
    REC. H475, H979 (daily ed. Jan. 15, 2014)). But “the existence
    of alternative ‘protective conditions’ does not negate a party’s
    standing to enforce statutorily mandated regulations.” Sierra
    Club v. Envtl. Prot. Agency, 
    129 F.3d 137
    , 139 (D.C. Cir. 1997).
    So long as existing regulatory coverage — or the lack thereof —
    subjects at least one petitioner to some harm, that is sufficient to
    confer standing to challenge the regulatory regime (or lack
    thereof). See id.; Airlines for 
    Am., 780 F.3d at 411
    . The record
    shows that the Idaho Conservation League’s member faces such
    harms because there are gaps in the existing regulatory
    landscape; financial assurance procedures are inconsistent and
    inadequate. Although EPA sometimes negotiates case-by-case
    financial assurance requirements after significant releases of
    hazardous substances have occurred, those tools are limited and
    do not cover many facilities that pose the risk of such releases.
    Further, the record shows that some facilities file for bankruptcy
    protection without entering into a settlement agreement, which
    may make it difficult for EPA to recover any of the cleanup
    costs. There is no evidence that the facilities identified by
    Robison are immune to these problems; he demonstrates that the
    facilities about which he is concerned are not adequately
    covered by existing financial assurance requirements. Because
    additional financial assurance requirements would address gaps
    in protection that affect Robison’s interests and there are no
    “reasons beyond the challenged government action for the third
    parties to continue the conduct that caused injury to the
    [petitioners],” see Ams. for Safe Access v. Drug Enforcement
    Admin., 
    706 F.3d 438
    , 448 (D.C. Cir. 2013), there is no basis to
    doubt that the congressional assessment and economic logic
    further support causation and redressability. Nor is the
    connection between imposing financial assurance requirements
    13
    and mine operators choosing to reduce their releases into the
    environment too attenuated to require more to support standing.
    See, e.g., Ctr. for Biological 
    Diversity, 563 F.3d at 478
    .
    Furthermore, under petitioners’ second theory of standing,
    EPA’s failure to promulgate CERCLA financial assurance
    regulations contributes to funding shortfalls for cleanup efforts,
    which delays remediation and increases the length of time
    Robison would be exposed to hazardous substances. As
    discussed, the lack of financial assurance requirements means
    that mine operators can avoid paying some portion of the
    cleanup costs by declaring bankruptcy. Although the federal
    government has taken over responsibility for cleaning up these
    sites, the record shows that cleanup proceeds at a slower rate
    than it would if fully funded. Slower cleanups prolong the
    public’s exposure to hazardous materials. With respect to
    hardrock mining, EPA concluded that “if the total Federal, State,
    and potentially responsible party outlays for remediation were
    to continue at existing levels . . . , no more than eight to 20
    percent of all cleanup work could be completed within 30
    years.” Identification of Priority Classes of Facilities for
    Development of CERCLA Section 108(b) Financial
    Responsibility Requirements, 74 Fed. Reg. at 37,217. For
    instance, “EPA officials [have reported] that at the Bunker Hill
    Mining site in Idaho . . . the pace of the cleanup had to be
    slowed down because of preconstruction and remedial action
    funding limitations.” U.S. GOV’T ACCOUNTABILITY OFF., GAO-
    10-380, SUPERFUND: EPA’S ESTIMATED COSTS TO REMEDIATE
    EXISTING SITES EXCEED CURRENT FUNDING LEVELS, AND MORE
    SITES ARE EXPECTED TO BE ADDED TO THE NATIONAL
    PRIORITIES LIST 18 (2010). In view of these assessments, there
    is a substantial risk that cleanup delays will occur in hazardous-
    waste-releasing sites near Robison. The injuries threatened by
    such delayed cleanup would be redressed by an order requiring
    EPA to finalize a hardrock-mining financial assurance rule.
    14
    Whether financial assurance requirements provide the funds to
    clean up a site directly, or free up government funds to clean up
    the site, the record makes clear that financial assurances would
    reduce current delays in cleanup at these sites.
    Assuming, as we must for purposes of standing, that EPA
    adheres to the schedule set forth in the joint order on consent
    and timely promulgates financial assurance requirements in the
    hardrock mining industry, see, e.g., Sierra Club v. Envtl. Prot.
    Agency, 
    699 F.3d 530
    , 533 (D.C. Cir. 2012), there is a
    substantial probability that doing so will reduce the injuries
    caused to one member of the Idaho Conservation League.
    Promulgating a financial assurance rule in the hardrock mining
    industry will lessen, if not prevent, both ongoing hazardous
    waste release and future delays in cleaning up such releases,
    which, in turn, will limit Robison’s exposure to these hazards.
    Accordingly, we hold that at least one petitioner has established
    standing under Article III.
    B.
    To the extent that a showing of standing is also needed for
    the requirement that EPA decide whether to conduct a
    rulemaking in any of the other three industries by a specific date
    as a different form of relief, cf. 
    Laidlaw, 528 U.S. at 186
    , the
    declarations of members of Sierra Club and the Idaho
    Conservation League show that they are currently harmed and
    will continue to be harmed by the lack of financial assurance
    regulations for the remaining industries. For instance, Karla
    Land, a member of the Sierra Club, lives and works near
    petroleum and chemical manufacturing facilities that dump
    hazardous substances in the San Juacinto River and will
    continue to do so in the future. This harms her interests because
    it limits her ability to test the jet skis she repairs and to fish in
    the river. Similarly, Justin Hayes, a member of the Idaho
    Conservation League, explains how he is harmed by the lack of
    15
    financial assurance regulations. Specifically, he is concerned
    about the Monsanto Chemical Company Superfund site, which
    is located at a Monsanto facility that processes chemicals and
    continues to contaminate the groundwater near springs he likes
    to visit and from which he drinks the spring water. Although
    Monsanto has undertaken some cleanup at the site, he has reason
    to fear that the additional contamination will require even more
    cleanup and that there is nothing to stop Monsanto from ceasing
    to clean up the area. Mark Romines of the Sierra Club states
    that a nearby power generating facility is releasing coal ash
    directly into the Ohio River and has made no effort to clean up
    these hazardous releases, so that he is no longer able to swim in
    the river. He is especially concerned that he is currently
    vulnerable to the possibility that a coal ash retention pond down
    the street could breach, releasing black coal water into the
    subdivision where he lives. Finally, Richard Kark, a member of
    the Sierra Club, states that the active electric power plant near
    his home is contaminating the French Broad River in which he
    canoes, and that the coal ash dam created by the plant could
    burst, harming his community.
    In sum, these declarations show that at least one of
    petitioners’ members have been and continue to be harmed by
    facilities in the three remaining industries and that, just as with
    hardrock 
    mining, supra
    Part II.A., financial assurance
    requirements would redress their injuries by incentivizing these
    industries to limit hazardous releases and by reducing cleanup
    delays. Additionally, a schedule for decision-making affords
    petitioners relief as it is more likely that EPA will promulgate
    financial assurance regulations and make that decision sooner
    rather than later. Petitioners need not show that “but for the
    alleged procedural deficiency the agency would have reached a
    different substantive result.” See, e.g., WildEarth Guardians v.
    Jewell, 
    738 F.3d 298
    , 306 (D.C. Cir. 2013); Sugar Cane
    Growers Co-op. of Fla. v. Veneman 
    289 F.3d 89
    , 94–95 (D.C.
    16
    Cir. 2002). Even though petitioners could not establish “with
    any certainty” that requiring EPA to decide whether to conduct
    a rulemaking will result in financial assurance regulations for
    the remaining industries, it is enough that this “procedural step
    [is] connected to the substantive result” sought by petitioners —
    promulgation of financial assurance rules for the remaining
    industries. See Sugar 
    Cane, 289 F.3d at 94
    –95 (citation and
    internal quotation marks omitted); 
    WildEarth, 738 F.3d at 306
    .
    Therefore, the court is assured that at least one petitioner
    has standing to obtain all of the relief sought in the order in the
    joint motion on consent.
    III.
    Also pending are motions to intervene as of right under
    CERCLA, 42 U.S.C. § 9613(i) and Federal Rule of Civil
    Procedure 24(a), filed by Freeport-McMoRan, Inc. (“Freeport”),
    the National Mining Association, and a group of other industry
    intervenors including the Superfund Settlements Project, the
    American Chemistry Council, and the American Petroleum
    Institute (herein, the “Superfund group”). The motions were
    filed after the court ordered EPA to respond to the petition for
    a writ of mandamus seeking rules by set dates, and they have not
    been supplemented since the joint motion on consent was filed.
    Our decision in Defenders of Wildlife v. Perciasepe, 
    714 F.3d 1317
    , 1323–25 (D.C. Cir. 2013), is controlling. See also Nat’l
    Ass’n of Home Builders v. U.S. Fish & Wildlife Serv., 
    786 F.3d 1050
    , 1053 (D.C. Cir. 2015); In re Endangered Species Act
    Section 4 Deadline Litig., 
    704 F.3d 972
    , 976 (D.C. Cir. 2013).
    We conclude the proposed intervenors fall short of
    demonstrating their right to intervene because they fail to show
    they have Article III standing, which they do not dispute is
    17
    required.1 We further conclude permissive intervention would
    be inappropriate. See FED. R. CIV. P. 24(b)(1)(B).
    Because the petition for mandamus is no longer at issue,
    those seeking to intervene must base their Article III standing on
    harms caused by the joint motion on consent, not the relief
    sought in the petition for mandamus or concerns generated by
    EPA’s “throat-clearing” beyond the joint order on consent.
    
    Perciasepe, 714 F.3d at 1325
    n.7. They suggest generally that
    stricter hardrock mining regulation is a foregone conclusion.
    But the proposed joint order “does not require EPA to
    promulgate a new, stricter rule.” 
    Id. at 1324.
    At most, it
    “merely requires that EPA conduct a rulemaking and then
    decide whether to promulgate a new rule — the content of
    which is not in any way dictated by the [proposed order on
    consent] — using a specific timeline.” 
    Id. The timeline
    in the
    joint motion requires that EPA commence a rulemaking with
    respect to hardrock mining by December 1, 2016, and provide
    “notice of its final action” by December 1, 2017. Joint Mot. 3.
    Although more is required with respect to hardrock mining than
    the other identified industries, where EPA retains discretion not
    to conduct a rulemaking at all, EPA retains “discretion to
    promulgate a rule or decline to do so” even for the hardrock
    mining industry. See 
    Perciasepe, 714 F.3d at 1325
    n.7; see also
    5 U.S.C. § 551(13). The joint motion on consent states that
    “[n]othing in this Joint Motion should be construed to limit or
    modify the discretion accorded EPA by CERCLA or the general
    principles of administrative law.” Joint Mot. 6. It neither
    resolves the substance of any rulemaking nor even which
    1
    With respect to Part III of this opinion, Judge Millett joins
    only the last paragraph denying permissive intervention. She would
    hold that hardrock mining intervenors have standing but deny
    intervention in view of their unhindered ability to participate in that
    rulemaking.
    18
    classes of hardrock mining facilities will be regulated. See 2nd
    Decl. of Barnes Johnson, Dir. of Office of Res. Conservation
    and Recovery, Envtl. Prot. Agency, Ex. 1, at 1 (Aug. 25, 2015)
    (“framework” for hardrock mining rules). In other words,
    nothing about this particular order on consent makes it any more
    likely than in 
    Perciasepe, 714 F.3d at 1324
    –25, that proposed
    intervenors will be subject to regulation, much less suffer
    concrete harm to their interests, cf. Fund for Animals v. Norton,
    
    322 F.3d 728
    , 733–34 (D.C. Cir. 2003). Because the order
    sought in the joint motion on consent merely “prescribes a date
    by which regulation could occur,” proposed intervenors have not
    established Article III standing. See 
    Perciasepe, 714 F.3d at 1325
    .
    That the schedule for EPA to act has been condensed over
    what was originally proposed by EPA in responding to the
    petition for mandamus does no more to establish proposed
    intervenors’ standing. Freeport explains in very general terms
    why the proposed schedule in the joint motion is unreasonable,
    but it does not explain how the schedule might harm it, see
    Freeport Suppl. Resp. 1–5, much less attempt to establish how
    that schedule increases its information gathering costs. See
    
    Perciasepe, 714 F.3d at 1326
    . Nor do the proposed intervenors
    point to authority that the proposed one-year period for notice-
    and-comment is so short that it would necessarily harm them.
    See 
    id. at 1324;
    Omnipoint Corp. v. Fed. Commc’n Comm’n, 
    78 F.3d 620
    , 630 (D.C. Cir. 1996).
    Alternatively, had the proposed intervenors argued that
    Article III standing is not required for intervention as of right
    under CERCLA § 9613(i), which they did not, our conclusion
    would be the same. Their concerns about the order sought by
    the joint motion on consent, which sets only a schedule for
    rulemaking, are insufficient to show the necessary impairment
    to their interests. See Alt. Research & Dev. Found. v. Veneman,
    19
    
    262 F.3d 406
    , 411 (D.C. Cir. 2001). Granting the joint motion
    on consent would not prevent proposed intervenors from seeking
    to intervene in the scheduled rulemaking or challenging a final
    rule that subjects them to regulation. See 
    id. As to
    permissive intervention, it is discretionary. See Equal
    Emp’t Opportunity Comm’n v. Nat’l Children’s Ctr., Inc., 
    146 F.3d 1042
    , 1046 (D.C. Cir. 1998). Given proposed intervenors’
    failure to show in regard to the order on consent a “claim or
    defense that shares with the main action a common question of
    law or fact,” FED. R. CIV. P. 24(b), such intervention would be
    inappropriate.
    IV.
    Finally, we conclude that the motion and its proposed order
    appropriately respond to the court’s order of May 19, 2015.
    That suffices for the court to grant the joint motion. Even an
    intervenor would lack the power to block the order on consent
    by withholding their consent, see Local No. 93, Int’l Ass’n of
    Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 
    478 U.S. 501
    , 528–29 (1986). Besides that, our role in evaluating the
    reasonableness of a proposed consent order is limited. See
    Citizens for a Better Env’t v. Gorsuch, 
    718 F.2d 1117
    , 1125–26
    (D.C. Cir. 1983). As a district court has “power to enter a
    consent decree without first determining that a statutory
    violation has occurred,” 
    id. (citing Swift,
    276 U.S. at 327), its
    duty is only to “satisfy itself of the settlement’s ‘overall fairness
    to beneficiaries and consistency with the public interest.’” 
    Id. (quoting United
    States v. Trucking Emps., Inc., 
    561 F.2d 313
    ,
    317 (D.C. Cir. 1977)). Thus, this court has instructed:
    The trial court in approving a settlement need not
    inquire into the precise legal rights of the parties nor
    reach and resolve the merits of the claims or
    20
    controversy, but need only determine that the
    settlement is fair, adequate, reasonable and appropriate
    under the particular facts and that there has been valid
    consent by the concerned parties.
    
    Id. (quoting Metro.
    Hous. Dev. Corp. v. Vill. of Arlington
    Heights, 
    616 F.2d 1006
    , 1014 (7th Cir. 1980)). We view our
    role to be similarly limited inasmuch as the joint motion
    resolves a petition for mandamus that originated in this court
    and conclude that the joint motion satisfies this standard.
    Stated broadly, Congress, in enacting CERCLA, has
    determined that the financial assurance provisions required by
    section 108(b) are in the public interest. In adopting
    amendments to CERCLA, Congress has retained these
    provisions. The joint motion on consent is designed to ensure
    meaningful implementation of them. For the same reason,
    petitioners have concluded that the joint motion represents a
    fruitful way to achieve their objectives. Nothing on the face of
    the joint motion suggests unfairness to any interested parties.
    As noted, Part 
    III supra
    , the joint motion does not preordain the
    content of a rulemaking much less indicate that in committing
    itself to conducting a rulemaking EPA has prejudged the
    outcome for the hardrock mining industry. Once EPA publishes
    a notice of proposed rulemaking, interested parties will have an
    opportunity to present their comments, and if EPA publishes a
    final rule, those affected could challenge it.
    Considering the arguments presented by those seeking to
    intervene as arguments of amici, see 7A CHARLES ALAN
    WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
    PROCEDURE § 1913 (3d ed. 2015), does not persuade us to deny
    the joint motion. For instance, in urging that the joint motion on
    consent is not a reasonable settlement of the parties’ positions,
    amici focus on the compressed schedule for EPA to act. EPA
    21
    had stated in response to the petition for mandamus that
    petitioners’ proposed schedule — requiring a final rule for all
    four industries by January 2016 — was unreasonable in view of
    the many tasks to be completed before proposing a financial
    assurance rule as well as difficulties that might arise after the
    comment period. See, e.g., Decl. of Barnes Johnson ¶¶ 33-35,
    71-73. Instead, EPA suggested that it could not produce a final
    rule for the hardrock mining industry until August 2019. See 
    id. ¶ 73.
    Now EPA has represented that it can produce a final rule
    by December 2017. There is no reason to doubt its
    representation to the court inasmuch as EPA has a “framework”
    to facilitate rulemakings and the joint motion on consent affords
    EPA additional time to act in several key areas while preserving
    its discretion in other areas. Under the joint motion, the
    deadline for proposing a hardrock mining rule has been
    extended from August 2016 to December 1, 2016, even though
    the period for notice and comment has been reduced from three
    years, as EPA originally estimated, to one year. Further, EPA
    no longer faces the imminent possibility that the court would
    grant mandamus for financial assurance rules in the other three
    industries, Pet. 1, as it retains discretion to determine whether to
    engage in a rulemaking for these industries at all. If EPA
    decides to proceed with rulemaking for other industries, it has
    until 2024 to provide notice of its final action for the third
    industry. Contrary to amici’s suggestion, schedule adjustments
    like these are not substantive reversals in policy that require
    explanation beyond what is evident on the face of the parties’
    joint motion on consent. See 
    Perciasepe, 714 F.3d at 1324
    &
    n.6; Omnipoint 
    Corp., 78 F.3d at 629
    –30; cf. Envtl. Def. Fund,
    Inc. v. Costle, 
    636 F.2d 1229
    , 1255–56 & n.93 (D.C. Cir. 1980);
    see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
    Mut. Auto. Ins. Co. 
    463 U.S. 29
    , 41–42 (1983). EPA’s
    representation, moreover, is properly understood in the context
    of acknowledging that Congress’s instruction on financial
    assurance rules was issued more than thirty years ago.
    22
    Accordingly, because the parties’ joint motion on consent
    appropriately responds to the Court’s order and is reasonable,
    we grant the motion. An order accompanies this opinion.
    

Document Info

Docket Number: 14-1149

Citation Numbers: 421 U.S. App. D.C. 52, 811 F.3d 502

Filed Date: 1/29/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (28)

safety-kleen-incorporated-pinewood-and-toronto-dominion-texas , 274 F.3d 846 ( 2001 )

Metropolitan Housing Development Corp. v. Village of ... , 616 F.2d 1006 ( 1980 )

Center for Biological Diversity v. US Dept. of Interior , 563 F.3d 466 ( 2009 )

Sierra Club v. Environmental Protection Agency , 292 F.3d 895 ( 2002 )

Omnipoint Corporation v. Federal Communications Commission ... , 78 F.3d 620 ( 1996 )

National Wildlife Federation v. Donald P. Hodel, Secretary ... , 839 F.2d 694 ( 1988 )

Fund for Animals, Inc. v. Norton , 322 F.3d 728 ( 2003 )

General Electric Co. v. Environmental Protection Agency , 360 F.3d 188 ( 2004 )

Nat Rescr Def Cncl v. Pena, Federico F. , 147 F.3d 1012 ( 1998 )

Equal Employment Opportunity Commission v. National ... , 146 F.3d 1042 ( 1998 )

Sugar Cane Growers Cooperative of Florida v. Veneman , 289 F.3d 89 ( 2002 )

Natural Resources Defense Council v. Environmental ... , 643 F.3d 311 ( 2011 )

environmental-defense-fund-inc-a-nonprofit-new-york-corporation-v , 636 F.2d 1229 ( 1980 )

citizens-for-a-better-environment-dennis-l-adamczyk-v-anne-gorsuch , 718 F.2d 1117 ( 1983 )

Alternative Research & Development Foundation v. Veneman , 262 F.3d 406 ( 2001 )

Railway Labor Executives' Association v. United States of ... , 987 F.2d 806 ( 1993 )

United Transportation Union v. Interstate Commerce ... , 891 F.2d 908 ( 1989 )

mutual-of-omaha-insurance-company-and-union-labor-life-insurance-company-v , 145 F.3d 389 ( 1998 )

Sierra Club v. Environmental Protection Agency , 129 F.3d 137 ( 1997 )

Swift & Co. v. United States , 48 S. Ct. 311 ( 1928 )

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