Carbon Sequestration Council v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 2015 Decided June 2, 2015

No. 14-1046

CARBON SEQUESTRATION COUNCIL AND SOUTHERN COMPANY
SERVICES, INC.,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND GINA
MCCARTHY, ADMINISTRATOR,
RESPONDENTS

Consolidated with 14-1048

On Petitions for Review of Final Agency Action
of the United States Environmental Protection Agency

Thomas Sayre Llewellyn argued the cause for petitioners.
With him on the briefs were Stacy R. Linden and Robert F.
Van Voorhees. Alec W. Farr entered an appearance.

Michele L. Walter, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief was
John C. Cruden, Assistant Attorney General.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
 2

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

EDWARDS, Senior Circuit Judge: Under the Safe
Drinking Water Act, the Environmental Protection Agency
(“EPA” or “Agency”) is authorized to regulate the injection of
fluids into underground wells to ensure that injection does not
endanger drinking water sources. Under the Resource
Conservation and Recovery Act (“RCRA”), EPA is
authorized to regulate “solid waste,” which is defined, in part,
as “discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations.” 42 U.S.C.
§ 6903(27). When fluid “solid waste” is injected into
underground wells, that waste may be subject to regulation
under both the Safe Drinking Water Act and RCRA.

In 2010, acting pursuant to its authority under the Safe
Drinking Water Act, EPA promulgated a rule creating the
new “Class VI” well, and prohibiting the injection of
hazardous RCRA “solid waste” into such wells. See Federal
Requirements Under the Underground Injection Control
(UIC) Program for Carbon Dioxide (CO2) Geologic
Sequestration (GS) Wells, 75 Fed. Reg. 77,230 (Dec. 10,
2010). Class VI wells are designated to receive carbon
dioxide streams generated as part of a climate change
mitigation program known as “carbon capture and storage.”
This program involves the capture of carbon dioxide from
industrial sources, the compression of that carbon dioxide into
a “supercritical fluid” that is neither a liquid nor a gas but has
properties of both, and the injection of that supercritical
carbon dioxide into an underground well to ensure that it does
not reenter the atmosphere. Because the final stage of carbon
capture and storage – geologic sequestration of the
 3
supercritical carbon dioxide – involves the underground
injection of fluid, it is subject to Safe Drinking Water Act
regulation.

A question arose during the course of the Class VI
rulemaking whether carbon dioxide streams injected into
Class VI wells are also “solid waste” subject to regulation
under RCRA. EPA initiated a separate rulemaking in part to
address that question. Several commenters argued that the
carbon dioxide streams do not fit within the statutory
definition of solid waste. And a number of commenters were
concerned that if EPA determined that supercritical fluids are
solid waste, then generators and injectors of these streams
would be obliged to comply with costly RCRA regulations.

On Jan. 3, 2014, EPA issued a final rule in which it
determined that supercritical carbon dioxide injected into
Class VI underground wells for purposes of geologic
sequestration is “solid waste” within the meaning of RCRA.
See Hazardous Waste Management System: Conditional
Exclusion for Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities, 79 Fed. Reg. 350 (Jan. 3, 2014).
EPA interpreted the phrase “including solid, liquid, semisolid,
or contained gaseous material” as illustrative, rather than
exhaustive, and stated that supercritical fluids fall within the
statutory definition because they are of the same kind as those
expressly included in the definition. 79 Fed. Reg. at 355. EPA
also determined that the geologically sequestered streams
constitute “discarded material” within the meaning of the
statute because they are injected underground with the express
intention of isolating them from reentry into the atmosphere,
even though they could, theoretically, be extracted and reused
in the future. Id. Having so concluded, EPA determined that
supercritical carbon dioxide streams injected into Class VI
 4
wells for the purpose of geologic sequestration constitute
“solid waste” subject to RCRA.

The Carbon Sequestration Council, Southern Company
Services, Inc. (which is a member of the Carbon
Sequestration Council), and the American Petroleum Institute
(together, “Petitioners”) now seek review of EPA’s solid
waste determination, arguing that the supercritical carbon
dioxide streams at issue in this rule are not RCRA solid waste.
The Carbon Sequestration Council asserts representational
standing on behalf of Southern; and the American Petroleum
Institute asserts representational standing on behalf of
Occidental Oil and Gas (“Occidental”). Because we find that
Petitioners have no standing to pursue this challenge, we
dismiss for want of jurisdiction. As the parties invoking
federal jurisdiction, Petitioners “bear[] the burden of
establishing” Article III standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). They “must support each
element of [their] claim to standing by affidavit or other
evidence. [Their] burden of proof is to show a substantial
probability that [they have] been injured, that the defendant
caused [their] injury, and that the court could redress that
injury.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir.
2002) (citation and internal quotation marks omitted).
Petitioners have failed to meet this burden of proof.

Southern Company Services, Inc. (“Southern”) has failed
to allege that it uses or intends to use any Class VI wells.
Rather, it captures and compresses carbon dioxide either for
use in enhanced oil recovery or in Class V experimental
wells. The disputed rule addresses only streams injected into
Class VI wells for the purpose of geologic sequestration,
which are not mentioned in Southern’s affidavit supporting
standing. American Petroleum Institute (“Institute”), in turn,
relies on one of its members, Occidental, in an effort to
 5
demonstrate representational standing. Occidental, however,
acknowledges that it is not directly regulated by the disputed
rule. Rather, Occidental claims that EPA’s 2014 rule presages
regulation of its enhanced oil recovery activities, and that this
will cause it to change its business practices in anticipation of
likely future regulation. This is not enough in this case to
demonstrate injury sufficient to meet the standing
requirements of Article III. There is nothing in EPA’s
disputed rule to suggest that EPA intends to extend the rule to
cover the activities of concern to Occidental; indeed, EPA
expressly distinguished Occidental’s activities from those
being regulated and suggested that they are unlikely to be
regulated in the future. Therefore, the actions taken by
Occidental in anticipation of unspecified regulations are not
fairly traceable to EPA’s 2014 rulemaking.

Neither Southern nor Occidental can show any injury
sufficient to satisfy the requirements of Article III. They
therefore lack standing. Carbon Sequestration Council lacks
standing because Southern lacks standing. And American
Petroleum Institute lacks standing because Occidental lacks
standing. The petitions for review are hereby dismissed.

I. BACKGROUND

Because Petitioners lack standing, we have no occasion
to consider whether supercritical fluids injected into a Class
VI well that is subject to regulation under the Safe Drinking
Water Act constitute “solid waste” that must also be regulated
under RCRA. Nevertheless, because the regulatory context is
crucial to understanding the Article III standing issues in this
case, we begin with a brief review of the relevant statutes and
regulations.
 6
A. The Safe Drinking Water Act’s Regulation of
Underground Injection of Fluids

The Safe Drinking Water Act, 42 U.S.C. § 300f et seq.,
empowers EPA to promulgate regulations protecting the
quality of drinking water sources in the United States. One of
the industrial activities regulated under the statute is the
injection of fluids into underground wells, when that injection
may endanger the safety of drinking water sources. Id.
§ 300h(b)(1). To prevent any danger from underground
injection of fluids, EPA has promulgated regulations creating
“classes” of underground injection control wells, each with
different construction and use requirements, and each
authorized to receive different kinds of fluids under different
circumstances. See 40 C.F.R. § 144.6 (describing the classes
of wells). For example, Class I wells are the most secure and
can be used for the injection of hazardous and radioactive
waste. Class II wells are used for natural gas storage
operations or oil or natural gas production. See id. This case
involves the recently created “Class VI” well, which EPA
created for carbon capture and storage operations involving
the geologic sequestration of carbon dioxide. Any well owner
or operator who seeks to inject fluids underground must meet
the permitting requirements for the kind of injection well they
intend to operate.

B. The Resource Conservation and Recovery Act’s
Regulation of Solid Waste

EPA also administers RCRA, which establishes
regulatory standards for “solid waste.” Under RCRA,
generators of solid waste must determine whether that waste
is hazardous, and then treat hazardous solid waste according
to various regulatory requirements. The Act defines “solid
waste,” in relevant part, as follows:
 7

The term “solid waste” means any garbage, refuse,
sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other
discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations . . . .

42 U.S.C. § 6903(27) (emphasis added). Importantly, this
definition makes clear that statutory “solid waste” is not
limited only to waste that is solid. Rather, it includes “other
discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations.” See id.
Some waste that is not in a solid state – for example, liquid
waste – can thus be considered “solid waste” within the
meaning of the statute if it is “discarded material” and
otherwise within the definition in the statute.

As noted above, generators of solid waste “must
determine if that waste is a hazardous waste.” 40 C.F.R.
§ 262.11. The statute defines “hazardous waste” as follows:

The term “hazardous waste” means a solid waste, or
combination of solid wastes, which because of its
quantity, concentration, or physical, chemical, or
infectious characteristics may –
(A) cause, or significantly contribute to an increase
in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to
human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise
managed.
 8
42 U.S.C. § 6903(5). The Act then creates a “‘cradle-to-
grave’ regulatory structure overseeing the safe treatment,
storage and disposal of hazardous waste.” United Techs.
Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir. 1987).

EPA has construed RCRA to allow it to conditionally
exclude regulated parties from the potentially costly
requirement of determining whether solid waste is hazardous.
See Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C.
Cir. 1998) (upholding the authority to grant conditional
exclusions). Whether a waste should be exempted from
hazardous waste regulation “turns upon [EPA’s] assessment
of whether such regulation is necessary to protect human
health and the environment.” Id.; see 42 U.S.C. § 6922(a)
(directing EPA to issue regulations governing the
management of hazardous waste “as may be necessary to
protect human health and the environment”).

C. Geologic Sequestration of Carbon Dioxide and the
“Class VI” Well

Carbon capture and storage is an emerging climate
change mitigation program that involves capturing carbon
dioxide from industrial sources, compressing it into a
“supercritical fluid,” and injecting that fluid underground for
the purposes of geologic sequestration, with the goal of
preventing the carbon from reentering the atmosphere.
Because the last of these steps – geologic sequestration of the
supercritical carbon dioxide – involves the injection of fluid
into underground wells, it is subject to regulation under the
Safe Drinking Water Act.

As carbon capture and storage technologies developed,
EPA concluded that, in compliance with the Safe Drinking
Water Act, it should create a new “class” of underground
 9
injection well specifically to govern injection of carbon
dioxide for geologic sequestration. After notice and comment,
EPA promulgated a rule creating the “Class VI” well. See 75
Fed. Reg. at 77,230. The Class VI well exists strictly “for
underground injection of carbon dioxide (CO2) for the
purpose of geologic sequestration.” Id.

While the Class VI well is meant to receive carbon
dioxide streams for geologic sequestration, EPA clarified in
the rule that the wells could not receive “any carbon dioxide
stream that meets the definition of a hazardous waste under”
RCRA and its associated regulations. Id. at 77,231.

A number of commenters expressed concerns about this
exclusion of hazardous waste from Class VI wells because it
suggested that some supercritical carbon dioxide streams were
solid waste regulated by RCRA. Although EPA had never
addressed this issue, these commenters feared that if EPA
found RCRA applicable to these carbon dioxide streams this
would require regulated parties to make costly pre-injection
determinations as to whether their streams were hazardous.

Although the commenters raised their concerns during
the course of the Class VI rulemaking proceedings, EPA
stated that the Class VI rule “does not itself change applicable
RCRA regulations.” Id. at 77,260. The agency thus made
clear that the Class VI rule did not provide an answer to the
question whether geologically sequestered carbon dioxide
streams are either solid or hazardous waste.

D. EPA’s Rulemaking to Determine RCRA’s Applicability
to Geologically Sequestered Carbon Dioxide Streams

In 2010, EPA initiated a rulemaking to determine
whether RCRA applies to carbon dioxide streams being
 10
geologically sequestered in a Class VI well. See Hazardous
Waste Management System: Identification and Listing of
Hazardous Waste: Carbon Dioxide (CO2) Streams in
Geologic Sequestration Activities, 76 Fed. Reg. 48,073
(Aug. 8, 2011) (proposed rule). In the course of this
rulemaking, EPA made two principal determinations.

First, EPA concluded that a “supercritical [carbon
dioxide] stream injected into a permitted . . . Class VI well for
purposes of [geologic sequestration] is a RCRA solid waste.”
76 Fed. Reg. at 48,077–78; see also 79 Fed. Reg. at 355. The
relevant part of RCRA’s “solid waste” definition reads:

The term “solid waste” means any garbage, refuse,
sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other
discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations . . . .

42 U.S.C. § 6903(27) (emphasis added).

Several commenters had argued that supercritical carbon
dioxide streams injected into Class VI wells for purposes of
geologic sequestration could not be solid waste because, as
“supercritical fluids” that are neither liquids nor gases but
have properties of both, they are not among the “solid, liquid,
semisolid, or contained gaseous” physical states mentioned in
the definition. See 79 Fed. Reg. at 354–55. These commenters
also argued that the carbon dioxide streams were not
“discarded” when they were injected for the purpose of
geologic sequestration in a Class VI well, because the carbon
dioxide streams could be extracted again and used
productively in drilling and other operations. Id.
 11
EPA rejected these arguments, interpreting the statute to
include these supercritical fluid streams. It stated that while
“supercritical fluids” were not expressly mentioned in the
statutory list defining “solid waste,” the list was illustrative,
not exhaustive, and supercritical fluids were similar to the
physical states expressly included. See id. Furthermore, EPA
found that carbon dioxide streams injected into Class VI wells
for the purpose of long-term geologic sequestration were
“discarded” at the moment they were injected, even if they
could, theoretically, be extracted again for other uses. Id. As a
result, these streams, when injected into Class VI wells for the
purpose of geologic sequestration, were solid waste and
subject to regulation under RCRA.

Second, EPA concluded that although it “believes that the
RCRA hazardous waste regulations can apply to [carbon
dioxide] streams being geologically sequestered” because
these streams are solid waste, 76 Fed. Reg. at 48,077, it would
nevertheless grant a conditional exclusion from the definition
of “hazardous waste” for such supercritical carbon dioxide
streams when the generators and injectors of those streams
abided by certain requirements. 79 Fed. Reg. at 355–57. EPA
concluded that RCRA regulations were unnecessary because
existing pipeline safety regulations promulgated by the
Department of Transportation, in conjunction with the safety
requirements already in place in the Class VI regulations,
were sufficient to achieve RCRA’s goals. 76 Fed. Reg. at
48,081. Under EPA’s conditional exclusion, generators and
well owners and operators could consider their carbon dioxide
streams excluded from the hazardous waste definition, and
could avoid testing their solid waste streams for hazardous
properties, if they: (1) abided by the relevant Department of
Transportation pipeline regulations, (2) abided by the Class
VI injection regulations, (3) did not mix other hazardous
wastes with their carbon dioxide streams, and (4) certified to
 12
the above conditions. 40 C.F.R. § 261.4(h). Thus, excluded
streams could be injected into Class VI wells without running
afoul of the Class VI regulation’s ban on the injection of
RCRA hazardous waste.

Petitioners do not contest the portion of EPA’s rule that
creates a conditional exclusion from the hazardous waste
definition. Instead, Petitioners challenge only EPA’s
determination that supercritical carbon dioxide streams
injected into Class VI wells are “solid waste” within the
meaning of 42 U.S.C. § 6903(27).

Before this court, Petitioners submit two declarations to
demonstrate their standing to pursue their petitions for review.
The first of these declarations is from petitioner Southern
Company Services, Inc., which is part of a corporate family
that includes several electricity generating power plants.
Southern is also a member of petitioner Carbon Sequestration
Council, which claims representational standing on behalf of
Southern. Southern’s corporate family tests carbon capture
technology, participates in geologic sequestration experiments
in “Class V” experimental wells, and also captures carbon for
use in enhanced oil recovery and other commercial purposes.
The second declaration is from Occidental Oil and Gas.
Occidental is a member of petitioner American Petroleum
Institute, which claims representational standing on behalf of
Occidental. Occidental is an oil exploration company that
injects carbon dioxide into underground wells as part of its
drilling operations.

The record is clear that neither Occidental nor Southern
operates or plans to operate Class VI wells and neither is
regulated in any way by the narrow rule at issue in this case.
Since neither can show any injury attributable to EPA’s
disputed rule, they lack the standing necessary to satisfy the
 13
requirements of Article III. Carbon Sequestration Council
lacks standing because Southern lacks standing. Likewise,
American Petroleum lacks standing because Occidental lacks
standing.

II. ANALYSIS

“It is well understood that a party who seeks to pursue an
action in federal court must first establish Article III
standing.” Bauer v. Mavi Marmara, 774 F.3d 1026, 1028
(D.C. Cir. 2014). Therefore, a federal court cannot proceed to
the merits of a claim unless it can satisfy itself that at least
one claimant has standing to bring suit.

As the party invoking federal jurisdiction, Petitioners
“bear[] the burden of establishing” standing. Lujan, 504 U.S.
at 561. In a case such as this,

[t]he petitioner's burden of production in the court of
appeals is . . . the same as that of a plaintiff moving for
summary judgment in the district court: it must support
each element of its claim to standing by affidavit or other
evidence. Its burden of proof is to show a substantial
probability that it has been injured, that the defendant
caused its injury, and that the court could redress that
injury.

Sierra Club, 292 F.3d at 899 (citation and internal quotation
marks omitted).

In some cases, such as when a petitioner is “an object of
the action” under review, standing may be “self-evident.” Id.
at 899–900 (internal quotation marks omitted). But when a
“petitioner’s standing is not self-evident . . . the petitioner
must supplement the record to the extent necessary to explain
 14
and substantiate its entitlement to judicial review.” Id. at 900
(emphasis added). Thus, a petitioner has a duty to “establish
its standing by the submission of its arguments and any
affidavits or other evidence appurtenant thereto at the first
appropriate point in the review proceeding.” Id. “Requiring
the petitioner to establish its standing at the outset of its case
is the most fair and orderly process by which to determine
whether the petitioner has standing to invoke the jurisdiction
of the court.” Id. at 901. And because the party seeking to
invoke the jurisdiction of the court carries the burden of
proof, we normally accept a petitioner’s submissions in
support of standing as offered. The court then determines
whether the petitioner’s submissions demonstrate a substantial
probability of actual or imminent injury, show that the alleged
injury was caused by the disputed agency action, and indicate
that the court can redress that injury.

As we explain below, Petitioners have failed to meet their
burden of proof necessary to demonstrate standing.

A. Southern Company Services, Inc.

Southern provides regulatory and engineering services
for its corporate family, which delivers energy-related
services, including electric power, in the states of Alabama,
Georgia, Florida, and Mississippi. Southern submitted the
declaration of Richard A. Esposito, its Principal Research
Geologist, in support of its claim to standing and in support of
Carbon Sequestration Council’s claim to representational
standing.

Esposito’s affidavit describes Southern’s involvement in
carbon capture, including testing carbon capture technologies
and installing carbon capture equipment on a variety of the
electricity generating plants in its corporate family. Among
 15
other things, Southern’s corporate family provides
supercritical carbon dioxide from several of its plants for
geologic sequestration demonstration projects being
conducted by the United States Department of Energy. Much
of the captured carbon dioxide from the plants is injected into
Class V wells, which are authorized for testing experimental
technologies such as those involved in geologic sequestration.
Decl. of Richard A. Esposito ¶¶ 7–8, 10. Beyond its
involvement in testing carbon sequestration technologies
using experimental Class V wells, Southern’s corporate
family also plans to capture carbon dioxide for use by other
companies in enhanced oil recovery and for “other
commercial uses.” Id. ¶¶ 13–14. Esposito’s affidavit contends
that EPA’s solid waste determination injures Southern by
requiring it to incur costs to determine whether its carbon
dioxide streams are hazardous.

Southern lacks standing because Esposito’s affidavit fails
to point to any activity covered by the regulation at issue in
this case – namely, the injection of “a supercritical [carbon
dioxide] stream . . . into a permitted . . . Class VI well for
purposes of [geologic sequestration].” 79 Fed. Reg. at 354. As
a result, there is no evidence in the record to support
Southern’s claim that the disputed rule injures Southern by
requiring it to incur costs related to determining whether its
carbon dioxide streams are hazardous waste. Stated simply,
the record is devoid of evidence showing that Southern is
regulated or otherwise injured by EPA’s solid waste
determination.

As noted above, Southern has averred that it engages or
plans to engage in two assertedly relevant activities: (1)
capturing carbon dioxide for use in enhanced oil recovery and
“other commercial uses,” and (2) capturing carbon dioxide for
injection into Class V experimental wells in connection with
 16
geologic sequestration demonstration projects. Neither of
these activities is covered by EPA’s solid waste
determination. EPA has strictly and clearly limited its solid
waste determination to carbon dioxide streams injected into
Class VI wells for purposes of geologic sequestration,
meaning that any requirement that Southern might have to
determine whether its carbon dioxide streams are hazardous is
speculative rather than actual or imminent. There is no
evidence that Southern operates or plans to operate Class VI
wells, or that any of Southern’s business activities are covered
by this rule.

Petitioners attempt to escape this conclusion by stating
that “Southern is harmed by EPA’s decision to include
captured supercritical carbon dioxide streams in the definition
of ‘solid waste’ because Southern will incur costs to
determine if any carbon dioxide stream it captures is a RCRA
hazardous waste.” Opening Br. of Petitioners 16. In support of
this theory of standing, Southern points to Esposito’s
declaration in which he states that “[u]nder the final rule, it
will be necessary for anyone who captures carbon dioxide
streams from an emission source to determine whether the
captured carbon dioxide stream is a ‘hazardous waste’ subject
to RCRA.” Decl. of Richard A. Esposito ¶ 18 (emphasis
added). This claim finds no support in the record.

EPA has made it very clear in its rule, in its brief, and
during oral argument before the court that its solid waste
determination is limited to supercritical carbon dioxide
streams injected into Class VI wells for the purpose of
geologic sequestration. The rule does not classify carbon
dioxide used in enhanced oil recovery or for experimentation
in Class V wells as “solid waste,” and so Esposito’s statement
that “anyone who captures carbon dioxide streams from an
emission source [must] determine whether the captured
 17
carbon dioxide stream is a ‘hazardous waste’” is simply
wrong.

In a vain attempt to support their position, Esposito and
Petitioners selectively quote part of EPA’s proposed rule as
saying that “all generators that capture [carbon dioxide] . . .
would incur costs to determine if the [carbon dioxide] stream
is a RCRA hazardous waste.” See, e.g., Opening Br. of
Petitioners 16–17 (quoting 76 Fed. Reg. at 48,089). But
Esposito and Petitioners leave out that this quotation comes
from the proposed rule’s economic assessment of the possible
impact of the rule, in which EPA “assume[d]” that all existing
generators capturing carbon would incur costs. 76 Fed. Reg.
at 48,089. In the context of the cost-benefit analysis that
assumption made sense, because EPA also “assume[d] . . . all
generators that capture [carbon dioxide] will . . . send their
[carbon dioxide] streams to Class VI wells.” Id. at 48,090.
These assumptions do not define the scope of the disputed
rule. To the contrary, EPA has stated that it “considers
[supercritical carbon dioxide streams] to be a solid waste”
only “[o]nce the decision is made that the supercritical
[carbon dioxide] stream will be sent to a . . . Class VI well for
discard.” 76 Fed. Reg. at 48,078. Since Southern has not
stated that it currently or in the future intends to send its
carbon dioxide streams to Class VI wells, the rule, by its own
terms, does not apply, and Southern will not incur the injuries
it claims as a result of EPA’s solid waste determination in this
case.

With respect to the use of carbon dioxide in commercial
activities such as enhanced oil recovery, EPA expressly
distinguished such commercial uses of carbon dioxide from
the specific, narrow use at issue in this case. EPA made it
clear that carbon dioxide used in oil recovery raises issues that
“are beyond the scope of this final rule.” 79 Fed. Reg. at 355.
 18
The rule concerns only carbon dioxide “streams when they
are to be injected into . . . Class VI wells for the purpose of
[geologic sequestration].” Id. (emphasis in original).

It is no less clear that EPA’s rule does not embrace any
determination regarding Class V experimental wells, because
EPA explicitly stated in its solid waste determination that the
“rule is not intended to affect the status of [carbon dioxide]
that is injected into wells other than . . . Class VI wells.” 76
Fed. Reg. at 48,078 & n.16. Counsel for EPA also confirmed
at oral argument that the agency’s solid waste determination
in this rule did not reach experimental injection into Class V
wells. Oral Arg. 24:35.

Finally, Petitioners argue that Southern is injured by
EPA’s solid waste determination because the company may
not always be able to rely on the conditional exclusion
included in EPA’s final rule. And, according to Petitioners,
this may cause Southern to incur the costs associated with the
requirement to make hazardous waste determinations. For
example, “Southern may decide to contract for geologic
sequestration of some of [its] carbon dioxide . . . through a
commingled pipeline system” that will deliver carbon dioxide
streams both to Class VI wells and to other uses such as
enhanced oil recovery operations. Reply Br. of Petitioners 11.
“In that circumstance, Southern will have no way of knowing
whether its carbon dioxide stream is actually sequestered in a
Class VI well . . . .” Id. EPA contests Southern’s description
of the requirements of the conditional exclusion, arguing that
Southern would have no difficulty abiding by the exclusion.
We need not address this matter, however, because Southern’s
claim fails on its own terms. The Esposito affidavit does not
say, or even suggest, that Southern is considering entering
into such an arrangement. In order to establish standing, a
petitioner’s evidentiary submissions “must be more than an
 19
ingenious academic exercise in the conceivable.” Alaska
Legislative Council v. Babbitt, 181 F.3d 1333, 1339 (D.C. Cir.
1999) (internal quotation marks omitted). Counsel’s
unsupported assertions in a Reply Brief are inadequate to
meet the burden of proof to demonstrate standing.

B. The American Petroleum Institute and Occidental Oil
and Gas

American Petroleum Institute, a party in this case,
attempts to rely on its member Occidental Oil and Gas in
support of representational standing. See Public Citizen, Inc.
v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1289
(D.C. Cir. 2007) (“An organization has standing to sue on
behalf of its members when, among other things, its members
would otherwise have standing to sue in their own right.”
(internal quotation marks omitted)). Occidental produces oil
and gas in the United States and around the world,
occasionally using enhanced oil recovery processes involving
the injection of carbon dioxide into underground wells. In
support of standing, Occidental submitted the affidavit of
Greg Hardin, its Director of Regulatory Affairs.

Hardin’s affidavit explains Occidental’s use of carbon
dioxide streams in its oil exploration efforts, which involve
injecting these streams underground to release trapped oil
from porous rock and make the oil flow more easily to the
wellhead. The affidavit states that over time virtually all of
the injected carbon dioxide becomes permanently trapped
underground, occupying the pore space remaining after the oil
and gas have been produced. While Hardin acknowledges that
the rule under review does not directly cover Occidental’s use
of carbon dioxide streams, and further acknowledges that the
rule explicitly indicates that EPA’s position is that use of
carbon dioxide streams in enhanced oil recovery “would not
 20
generally be a waste management activity,” Hardin
nevertheless claims that the rule injures Occidental. Decl. of
Greg Hardin ¶ 8 (quoting 79 Fed. Reg. at 355).

Hardin contends that EPA’s “broad assertion” of
authority resulting from the agency’s solid waste
determination may presage further regulatory action touching
on Occidental’s drilling operations. See id. ¶¶ 8–9. For this
reason, Hardin claims that “EPA’s assertion of authority, if
left undisturbed, will influence Occidental’s business
decisions concerning the expansion of [carbon dioxide
enhanced oil recovery] going forward.” Id. ¶ 8. This is
insufficient to demonstrate standing.

Occidental has not averred that it is engaged in any
activity regulated by the narrow rule at issue in this case. Any
injury it could claim as a direct result of the regulation would
be speculative, because, as demonstrated above, EPA
carefully cabined its rule to encompass only the injection of
carbon dioxide streams into Class VI wells for purposes of
geologic sequestration. Occidental has not claimed any
interest in pursuing these regulated activities. Perhaps sensing
this problem, Petitioners do not claim that Occidental will
incur costs as a direct consequence of EPA’s solid waste
determination. Rather, they claim that EPA’s determination
“will influence Occidental’s business decisions,” forcing it to
incur costs and alter its behavior in anticipation of
incremental regulatory action. See Opening Br. of Petitioners
17–18.

In support of their position, Petitioners cite Sabre, Inc. v.
Department of Transportation, 429 F.3d 1113 (D.C. Cir.
2005). In Sabre, the Department of Transportation
(“Department”) issued a rule “unambiguously claim[ing]
jurisdiction over” Sabre, the petitioner in that case. Id. at
 21
1117. Although that contested claim of jurisdiction did not
itself impose any immediate regulatory injuries, this court
found that Sabre had standing to challenge the jurisdictional
determination because the Department’s statements
“indicate[d] a very high probability that it [would] act against
a practice that” Sabre had shown, through detailed evidence,
it was interested in pursuing. Id. Specifically, the Department
“strongly condemn[ed]” Sabre’s desired activity and made
clear that it viewed it as “categorically anti-competitive and
unfair,” “reject[ing] arguments that [it] may have social
benefits.” Id. Because the Department had authority to impose
penalties on Sabre without any further action, the court found
that, under these circumstances, the Department’s assertion of
jurisdiction had “immediate, unavoidable implications for
Sabre’s business choices and investments, which constitutes a
sufficiently distinct and palpable injury.” Id. at 1118. Because
Sabre had “proffered evidence in a sealed supplemental
declaration that confirm[ed] the present existence” of business
plans that would be interrupted as a result of the Department’s
assertion of jurisdiction, the court concluded that the company
had met its burden of showing that its “injury [was] actual,
not conjectural or hypothetical.” Id.

Sabre is clearly inapposite, and gives no support to
Occidental’s standing claim here. Unlike that case, in which
the agency had unambiguously established jurisdiction over a
party, in this case EPA has – as Hardin admits in his affidavit
– explicitly declined to assert jurisdiction over the enhanced
oil recovery activities engaged in by Occidental. Additionally,
the agency’s statements in Sabre explicitly condemned the
regulated party’s desired activity and indicated a high
likelihood of agency enforcement action. Occidental has faced
no such statements from EPA in this case. In fact, EPA has
stated its “expectation that [injection of carbon dioxide
streams as part of enhanced oil recovery] would not generally
 22
be a waste management activity” subject to RCRA. 79 Fed.
Reg. at 355.

In sum, the record in this case stands in stark contrast to
the situation encountered by the regulated party in Sabre. The
disputed rule here is indisputably narrow and it does not
capture any of Occidental’s business activities. Therefore,
Occidental cannot show that EPA’s solid waste determination
has “immediate, unavoidable implications” for its business
that create a “distinct and palpable injury.” Occidental
speculates that its enhanced oil recovery activities may at
some ill-defined time in the future be subject to the disputed
rule. But there is nothing in the record to support this claim.
Standing cannot be “inferred argumentatively,” based on a
party’s “(mis)characterization” and “exaggeration of [an
agency’s’] findings.” See Advanced Mgmt. Tech., Inc. v. FAA,
211 F.3d 633, 636 (D.C. Cir. 2000) (citation omitted).
Occidental surely cannot claim injury sufficient to satisfy the
requirements of Article III standing based purely on a
speculative concern that EPA may choose to regulate its
business at some point in the indefinite future. And any
business decisions prompted by its misreading of the solid
waste determination cannot reasonably be attributed to EPA.
Because Occidental lacks standing, the Institute cannot claim
representational standing on its behalf.

III. CONCLUSION

Because Petitioners have failed to establish the standing
of any party in this case, we dismiss the petitions for review.

So ordered.