United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2002 Decided June 18, 2002
No. 01-1057
Sierra Club and Environmental Technology Council, Inc.,
Petitioners
v.
Environmental Protection Agency,
Respondent
American Chemistry Council, et al.,
Intervenors
On Petition for Review of a Rule of the
Environmental Protection Agency
David R. Case argued the cause and filed the briefs for
petitioners.
G. Scott Williams, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Deputy Assistant Attorney General, and
Alan Carpien, Attorney, U.S. Environmental Protection
Agency.
David F. Zoll, Leslie A. Hulse, G. William Frick, Ralph J.
Colleli, Douglas H. Green and Steven J. Groseclose were on
the brief for intervenors.
Before: Ginsburg, Chief Judge, Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: The Environmental Protection
Agency promulgated a rule to establish the conditions under
which it would consider certain wastewater treatment sludges
"hazardous" within the meaning of the Resource Conserva-
tion and Recovery Act, 42 U.S.C. s 6901 et seq. See Hazard-
ous Waste Mgmt. Sys., 65 Fed. Reg. 67068 (Nov. 8, 2000)
(Chlorinated Aliphatics Rule). The Sierra Club and the
Environmental Technology Council challenge the rule as un-
reasonable and as inconsistent with the plain meaning of the
RCRA. Because neither of the petitioners has standing to
seek review, we dismiss their petition.
I. Background
The RCRA establishes a comprehensive regulatory frame-
work for the handling and disposal of "solid waste," including
"any garbage, refuse, [or] sludge from a waste treatment
plant." 42 U.S.C. s 6903(27). The Act further defines as
"hazardous waste" the subset of solid waste that (for specified
reasons) 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 other-
wise managed.
Id. s 6903(5). Subtitle C of the RCRA, 42 U.S.C. ss 6921-
34, establishes "a stringent 'cradle-to-grave' regulatory struc-
ture overseeing the safe treatment, storage and disposal of
hazardous waste." Military Toxics Project v. EPA, 146 F.3d
948, 950 (D.C. Cir. 1998). Solid waste that is not deemed
hazardous is "regulated much more loosely" under subtitle D
of the Act, 42 U.S.C. ss 6941-49. City of Chicago v. EDF,
511 U.S. 328, 331 (1994).
Under the Agency's established criteria "for identifying the
characteristics of hazardous waste," 42 U.S.C. s 6921(a), a
waste is "listed" as hazardous if it: (1) "exhibits any of the
characteristics of hazardous waste"; (2) "has been found to be
fatal to humans [or, if data for humans are not available, then
to rats] in low doses"; or (3) contains a substance the
Congress has designated a "toxic constituent" capable of
causing harm when improperly managed or stored. 40
C.F.R. ss 261.11(a)(1-3). The last criterion entails a risk
assessment in order to determine whether the constituent is
in fact "capable of posing a substantial present or potential
hazard to human health or the environment." Id.
s 261.11(a)(3).
In 1984 the Congress directed the EPA to determine
whether the byproducts of chlorinated aliphatics should be
listed as hazardous pursuant to the Agency's criteria. See 42
U.S.C. s 6921(e)(2). The EPA found that the production of
certain chlorinated aliphatics, including ethylene dichloride
and vinyl chloride monomer (EDC/VCM), generates a waste-
water treatment sludge containing two "toxic constituents,"
arsenic and dioxin, in amounts that could endanger the public
health if managed or disposed of improperly. See Chlorinat-
ed Aliphatics Rule, 65 Fed. Reg. at 67072/1, 67089. The
Agency concluded that although the sludge "posed a substan-
tial hazard to human health and the environment when man-
aged in a land treatment unit, [it] did not pose this hazard
when managed in a landfill." Id. at 67097/1.
Having determined that EDC/VCM sludge threatens hu-
man health and the environment under certain conditions, the
EPA "conditionally listed" the sludge as a hazardous waste.
See id. at 67088/3. More specifically, the Agency determined
that the wastewater sludges generated during the production
of EDC/VCM are hazardous, and therefore must be handled
in accordance with subtitle C of the RCRA, unless:
(i) they are disposed of in a subtitle C or non-hazardous
landfill licensed or permitted by the state or federal
government;
(ii) they are not otherwise placed on the land prior to
final disposal; and
(iii) the generator maintains documentation demonstrat-
ing that the waste was either disposed of in an on-
site landfill or consigned to a transporter or disposal
facility that provided a written commitment to dis-
pose of the waste in an off-site landfill.
Id. at 67088-89.
There are fourteen facilities, all located in Louisiana and
Texas, that generate EDC/VCM sludge. Ten of the facilities
send their sludge to landfills for disposal; two treat the
sludge on site -- that is, they attempt to detoxify it and
recycle its components -- and two dispose of it as required by
subtitle C. The rule under review, therefore, requires only the
two facilities that presently treat their sludge to change their
method of storing and disposing of the substance, either by
placing it in a landfill or by complying with the stringent
directives of subtitle C.
The Sierra Club and the Environmental Technology Coun-
cil -- formerly known as the Hazardous Waste Treatment
Council -- petitioned for review of the Rule. The American
Chemistry Council, the American Petroleum Institute, the
Utility Solid Waste Activities Group, the Edison Electric
Institute, the American Public Power Association, the Nation-
al Rural Electric Cooperative Association, and the American
Gas Association have intervened to defend the Rule.
II. Standing
The Sierra Club and the ETC argue that the conditional
listing of EDC/VCM sludge cannot be squared with the land
disposal restrictions in the Act; the Chlorinated Aliphatics
Rule is based upon an untenable interpretation of the RCRA;
and the Rule is arbitrary and capricious in substance. The
EPA and the intervenors respond first by arguing that the
court does not have jurisdiction over the petition because the
Sierra Club and the ETC respectively lack constitutional and
prudential standing. We consider the standing issues, mind-
ful of our independent obligation to be sure of our jurisdic-
tion. See High Plains Wireless, L.P. v. FCC, 276 F.3d 599,
607 (D.C. Cir. 2002).
A. The Sierra Club
Under Article III of the Constitution of the United States,
an association, such as the Sierra Club, has standing to sue on
behalf of its members only if (1) at least one of its members
would have standing to sue in his own right, (2) the interests
the association seeks to protect are germane to its purpose,
and (3) neither the claim asserted nor the relief requested
requires that an individual member of the association partici-
pate in the lawsuit. See Hunt v. Washington State Apple
Advertising Comm'n, 432 U.S. 333, 342-43 (1977). The EPA
and the intervenors do not argue, nor do we have any reason
to believe, that the Sierra Club fails to satisfy the latter two
requirements.
The issue before the court, then, is whether at least one
member of the Sierra Club has standing under Article III.
The "irreducible constitutional minimum of standing contains
three elements": (1) injury-in-fact, (2) causation, and (3)
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). For the first element, the Sierra Club must show
"that EPA's alleged failings have caused a traceable 'concrete
and particularized' harm to their members that is 'actual or
imminent.' " American Petroleum Inst. v. EPA, 216 F.3d 50,
63 (D.C. Cir. 2000) (quoting Louisiana Envtl. Action Network
v. EPA, 172 F.3d 65, 71 (D.C. Cir. 1999) (LEAN)) The
organization need not prove the merits of its case -- "i.e.,
that localized harm has in fact resulted from a federal rule-
making" -- in order to establish its standing, but it "must
demonstrate that there is a 'substantial probability' that local
conditions will be adversely affected" and thereby injure a
member of the organization. Id. (quoting LEAN, 172 F.3d at
68).
In reply to the suggestion in the EPA's brief that it does
not have standing, the Sierra Club duly avers that some of its
members "live, work, and recreate in communities adversely
affected by the chemical plants that produce, store, and
transport the EDC/VCM sludge, as well as [by] the on-site
and off-site landfills used for sludge disposal," and it claims
that "there is a substantial probability that improper manage-
ment and disposal of EDC/VCM sludge will cause harm" to
its members in the vicinity of those facilities and landfills.
Bare allegations are insufficient, however, to establish a
petitioner's standing to seek judicial review of administrative
action.
As the Supreme Court explained in Defenders of Wildlife,
the burden of production a plaintiff must bear in order to
show it has standing to invoke the jurisdiction of the district
court varies with the procedural context of the case. At the
pleading stage, "general factual allegations of injury resulting
from the defendant's conduct may suffice," and the court
"presum[es] that general allegations embrace the specific
facts that are necessary to support the claim." Defenders of
Wildlife, 504 U.S. at 561. On a motion for summary judg-
ment, however, "the plaintiff can no longer rest on such 'mere
allegations,' but must 'set forth' by affidavit or other evidence
'specific facts,' ... which for purposes of the summary judg-
ment motion will be taken to be true." Id. (quoting Fed. R.
Civ. P. 56(e)). Although the Supreme Court did not address
directly the burden of production to be borne by a petitioner,
such as the Sierra Club in this case, seeking review of
administrative action in the court of appeals, the implication
of its teachings is clear.
In such cases, the agency that issued the order under
review ordinarily will have compiled an evidentiary record,
and the petitioner ordinarily will have participated in the
proceedings before the agency. "An administrative agency
... is not subject to Article III of the Constitution of the
United States," however, Pfizer, Inc. v. Shalala, 182 F.3d 975,
980 (D.C. Cir. 1999), so the petitioner would have had no need
to establish its standing to participate in the proceedings
before the agency. When the petitioner later seeks judicial
review, the constitutional requirement that it have standing
kicks in, and that requirement is the same, of course, as it
would be if such review were conducted in the first instance
by the district court. Compare U.S. Airwaves, Inc. v. FCC,
232 F.2d 227, 231-32 (D.C. Cir. 2000) (applying elements of
standing as set out in Defenders of Wildlife), with, e.g., Giles
v. Ashcroft, 193 F. Supp.2d 258, 263 (D.D.C. 2002) (same). In
either forum, therefore, the petitioner must substantiate its
standing "with the manner and degree of evidence required at
the successive stages of the litigation." Defenders of Wildlife,
504 U.S. at 561.
In contrast to the plaintiff in a case that has not yet
progressed beyond the pleading stage in the district court --
at which stage the court " 'presum[es] that general allegations
embrace those specific facts that are necessary to support the
claim,' " id. (quoting Lujan v. National Wildlife Fed., 497
U.S. 871, 889 (1990)) -- a petitioner seeking review in the
court of appeals does not ask the court merely to assess the
sufficiency of its legal theory. Rather, like a plaintiff moving
the district court for summary judgment, the petitioner is
asking the court of appeals for a final judgment on the merits,
based upon the application of its legal theory to facts estab-
lished by evidence in the record. Consistent with Defenders
of Wildlife, therefore, the petitioner must either identify in
that record evidence sufficient to support its standing to seek
review or, if there is none because standing was not an issue
before the agency, submit additional evidence to the court of
appeals. See Amfac Resorts, L.L.C. v. DOI, 282 F.3d 818, 830
(D.C. Cir. 2002) ("[The petitioners] are not confined to the
administrative record. ...Beyond the pleading stage, they
must support their claim of injury with evidence").
The petitioner's burden of production in the court of ap-
peals is accordingly 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 evi-
dence." Defenders of Wildlife, 504 U.S. at 561. 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. American Petroleum, 216
F.3d at 63.
In many if not most cases the petitioner's standing to seek
review of administrative action is self-evident; no evidence
outside the administrative record is necessary for the court to
be sure of it. In particular, if the complainant is "an object of
the action (or forgone action) at issue" -- as is the case
usually in review of a rulemaking and nearly always in review
of an adjudication -- there should be "little question that the
action or inaction has caused him injury, and that a judgment
preventing or requiring the action will redress it." Defenders
of Wildlife, 504 U.S. at 561-62. When the petitioner's stand-
ing is not self-evident, however, the petitioner must supple-
ment the record to the extent necessary to explain and
substantiate its entitlement to judicial review.
The Sierra Club protests in vain that it bears not this
burden, observing first that "no Federal rule of appellate
procedure, or of this circuit ... requires parties to demon-
strate standing through affidavits," and second that the court
has "long accepted parties' allegations of standing made by
counsel in briefs." The first observation is correct but una-
vailing in the face of the Supreme Court's teaching that the
burden of production for standing is correlative to the burden
of production for the substantive elements of the litigant's
case at the successive stages of litigation. The second obser-
vation, though supported by citations to two of our cases, still
is of no help to the petitioner. The court was not impelled in
those cases to call upon the petitioners to produce such
evidence because the petitioners' standing was clear, see
Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246, 1259
(D.C. Cir. 1994) ("environmental organizations [whose mem-
bers live in affected areas] clearly do have standing"); accord
Sierra Club v. EPA, 129 F.3d 137, 139 (D.C. Cir. 1997); those
precedents do not relieve the Sierra Club of its duty to
answer the call in this case. The Sierra Club well knows as
much: after the EPA questioned the Sierra Club's standing
in its responsive brief, the Club in its reply brief, citing
another pair of this court's decisions, sought specifically "an
opportunity to submit post-argument affidavits further dem-
onstrating [its] standing," which request the court granted.
Absent good cause shown, however, a litigant should not
expect the court to follow that procedure again; experience
teaches that full development of the arguments for and
against standing requires the same tried and true adversarial
procedure we use for the presentation of arguments on the
merits. Cf. Grant v. United States Air Force, 197 F.3d 539,
543 n.6 (D.C. Cir. 1999) ("our caselaw makes clear that an
argument first made in the reply comes too late"). Hence-
forth, therefore, a petitioner whose standing is not self-
evident should 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 proceed-
ing. In some cases that will be in response to a motion to
dismiss for want of standing; in cases in which no such
motion has been made, it will be with the petitioner's opening
brief--and not, as in this case, in reply to the brief of the
respondent agency.* In either procedural context the peti-
tioner may carry its burden of production by citing any
record evidence relevant to its claim of standing and, if
necessary, appending to its filing additional affidavits or other
evidence sufficient to support its claim. In its opening brief,
the petitioner should also include in the "Jurisdictional State-
ment" a concise recitation of the basis upon which it claims
standing.
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. The facts upon which a
petitioner relies for its standing to sue are necessarily pecu-
liar to it and are ordinarily within its possession; indeed it is
__________
* The Sierra Club appears already to have recognized the virtue
in establishing its standing at the outset of a case. In Sierra Club
v. EPA, Nos. 01-1070 & 01-1158 (D.C. Cir. filed Feb. 14, 2001),
which was filed in this court eight days after the instant petition,
the Sierra Club appended to its opening brief the declarations of
two members and one employee in order to provide facts sufficient
to support the Club's standing to sue. The EPA found no cause to
question the petitioner's standing, and the litigants focused their
attention instead upon the merits of the case.
often the case, as here, that some of the relevant facts are
known only to the petitioner, to the exclusion of both the
respondent and the court. Yet all too often the petitioner
does not submit evidence of those facts with its opening brief
and the respondent is therefore left to flail at the unknown in
an attempt to prove the negative, see, e.g., D&F Afonso
Realty Trust v. Garvey, 216 F.3d 1191, 1194 (D.C. Cir. 2000)
(agency challenged standing, which challenge petitioner readi-
ly overcame when "afforded ... the opportunity [after oral
argument] to submit affidavits supporting its allegations");
Chlorine Chem. Council v. EPA, 206 F.3d 1286, 1289 (D.C.
Cir. 2000) (agency that had challenged standing later "con-
cede[d] that 'the discussion of standing at oral argument
indicates that petitioners may indeed meet minimum require-
ments for standing' "); or the court raises its own question
about the petitioner's standing and ends up having to direct
the parties to file supplemental briefs in order to ensure that
the issue is joined in a fair and thorough adversarial process,
see, e.g., Gettman v. DEA, No. 01-1182, 2002 WL 1040572 at
*2 (D.C. Cir. May 24, 2002); City of Stratford v. FAA, 285
F.3d 84, 87-88 (D.C. Cir. 2002); Ruggiero v. FCC, 278 F.3d
1323, 1327 (D.C. Cir. 2002). When, as will often be the case
henceforth, the petitioner shows in its opening brief that its
claim to standing is beyond serious question, neither the
respondent nor the court will have reason to pursue the issue
further. At the same time, a respondent that continues to
contest the petitioner's claim to standing will have the oppor-
tunity to make an informed response to the petitioner's
showing, and the petitioner then will have an opportunity to
reply to that objection in its reply brief.
In this case counsel, having been given an additional oppor-
tunity to demonstrate the Sierra Club's standing, supplied the
court with his own submission, to which were attached two
lists each of 14 mailing addresses, 33 maps, and the Declara-
tion of H.C. Clark, a Professor Emeritus at Rice University
who has "taught about geology, geophysics, and environmen-
tal problems." The submission of counsel describes the inju-
ries allegedly suffered by Sierra Club members because of
the Chlorinated Aliphatics Rule, including the claim that
members forego recreation in the vicinity of a plant generat-
ing the EDC/VCM sludge "due to their concern for expo-
sure." The allegations in this submission, however, do not
support the standing of the Sierra Club because, like the
"mere allegations" in the Sierra Club's brief, they are not
evidence. That these particular allegations concern matters
beyond the scope of counsel's personal knowledge -- the
concerns of the unidentified Sierra Club members, for exam-
ple -- serves only to illustrate why we require more than
representations of counsel in order to establish a complain-
ant's standing.
The lists attached to the submission comprise 28 street
addresses, each purportedly that of a Sierra Club member,
but there is no indication that a member resided at that
address when the Club filed the petition challenging the Rule
and resides there at present. The lists may be "evidence,"
but they are "legally insufficient" to demonstrate that at least
one member of the organization lived at the time of filing and
continues to live in a place affected by the Rule. American
Petroleum, 216 F.3d at 64.
The maps attached to the counsel's submission show that
each of the 28 listed addresses is located within five miles of
either a chemical facility in LaPorte, Texas that generates
EDC/VCM sludge or a landfill in Houston, Texas at which
sludge is disposed. The Sierra Club does not submit any
evidence, however, supporting the proposition that there is a
"substantial probability" of "actual or imminent" injury to its
members arising from their residing within five miles of the
generating or the disposal facility. American Petroleum, 216
F.3d at 63. Taken together, therefore, the address lists and
the maps do not establish the organization's standing to sue.
The affidavit of Professor Clark recounts that he has
reviewed public records maintained by the Texas Natural
Resources Conservation Commission concerning the landfill
depicted on some of the submitted maps, and that "[t]hose
records indicate that contamination in the ground water
under and from the BFI landfill has migrated into Greens
Bayou." The relevance of the just-quoted fact is not clear
from any of the evidence the Club submitted. More curious
still, Professor Clark refers generally to a "plume of contami-
nation that is moving into Greens Bayou [and] includes
petroleum related organic chemicals," but he makes no men-
tion whatsoever of EDC/VCM sludge, nor does he suggest
the current or imminent presence in the Bayou of the toxic
constituents in such sludge. Perhaps that is because the
Clark Affidavit was created for the Sierra Club to submit to
this court in a prior case unrelated to the present proceeding,
and indeed, unrelated to the Chlorinated Aliphatics Rule.
See American Petroleum, 216 F.3d at 65 ("Clark establish[es]
little more than that some types of petroleum-related organic
chemicals migrate from BFI's Houston landfill to the Greens
Bayou, and ... [t]his is insufficient to establish the environ-
mental petitioner's standing"). Recycling this affidavit does
not help to demonstrate the Sierra Club's standing to sue in
this case any more than it did in the prior case.
In sum, the Sierra Club has failed to demonstrate a sub-
stantial probability of injury to a single member; it does
nothing to explain how a member is likely to be affected by
the generation, storage, or disposal of EDC/VCM sludge as
provided under the Rule. Therefore, the Sierra Club has not
shown that it has standing to seek review of the Rule.
B. The Environmental Technology Council
We do not address the ETC's standing under Article III of
the Constitution because it is clear the Council lacks pruden-
tial standing under the RCRA. See Hazardous Waste Treat-
ment Council v. Thomas, 885 F.2d 918, 921 & n.2 (D.C. Cir.
1989) (HWTC IV); see also Galvan v. Federal Prison Indus.,
Inc., 199 F.3d 461, 463 (D.C. Cir. 1999) ("[L]ater cases make
clear what was implicit in Steel Co. [v. Citizens for a Better
Env., 523 U.S. 83, 94-95 (1998)]: There is an array of non-
merits questions that we may decide in any order"). To
demonstrate prudential standing, ordinarily a party must
show that the interest it seeks to protect is "arguably within
the zone of interests to be protected or regulated by the
statute ... in question." Ass'n of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 153 (1970).
The ETC, which describes itself as "a national trade associ-
ation of commercial firms that provide technologies and ser-
vices for recycling, treatment, and secure disposal of industri-
al and hazardous wastes; firms involved in the cleanup of
contaminated sites; and equipment manufacturers serving
the environmental market," makes no attempt to show that
the Congress intended the RCRA to protect interests of its
sort, either directly or as a proxy for the environmental
interests of the public for whose protection the Act was
presumably passed. In fact, the ETC does not even state,
either in its briefs or by way of affidavit, what interest it has
in this litigation. If the past is any guide, however, the
interest of the ETC is, by promoting ever more stringent
regulation, "to improve the business opportunities of treat-
ment firms" -- an end we have consistently and repeatedly
held lies outside the "zone of interests" protected by the
RCRA. HWTC IV, 885 F.2d at 925-26; accord, Cement Kiln
Recycling Ass'n v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001);
HWTC II, 861 F.2d at 285. The Council offers us no reason
to conclude that its case for prudential standing is any
stronger here.
III. Conclusion
For the foregoing reasons, the petition is dismissed.
So ordered.