Recent RCRA Ruling Offers Insight on Applying Spokeo to Environmental Citizen Suits
“Standing” – a person’s right to sue someone else for injury – is a fundamental issue in every case. In 2016, the U.S. Supreme Court decided Spokeo v. Robins, which required that a person’s injury be both “concrete” and “particularized” to confer standing.
Since Spokeo, the environmental bar has been left guessing how Spokeo would play out in environmental cases, as many environmental cases are rooted in federal statutes that give private individuals the right to sue. That question was answered for the first time last week when a federal judge in North Carolina dismissed a lawsuit brought under the Resource Conservation and Recovery Act (RCRA) and the Coal Combustion Residuals (CCR) rule, in part because the plaintiff environmental group failed to meet the standing test established under Spokeo.
The case, Roanoke River Basin Association v. Duke Energy Progress, was another classic example of an environmental citizen suit against a large electric utility – earlier this year, we wrote about a separate ruling with important implications involving a citizen suit. In this more recent case, the plaintiff’s complaint was based on alleged violations of the CCR rule, which establishes minimum national requirements for the maintenance and closure of landfills that store CCR material. In late 2016, Duke Energy filed a closure plan for its Mayo plant, which included coal ash lagoons and a surface impoundment that stored CCR material.
Roanoke River Basin Association – an environmental group – subsequently sued, alleging that Duke Energy had failed to publish a closure plan that met CCR rule requirements.
The district court dismissed the case, finding that the plaintiff lacked standing because the plaintiff failed to satisfy the two-part standard from Spokeo. First, a plaintiff must show both a “concrete and particularized” injury-in-fact, which is an injury that “must actually exist” and be “real and not abstract.” Second, an actual causal nexus between the injury alleged and the challenged conduct of the defendant must exist.
Here, the district court found that there was no nexus between the alleged injury – diminished used and enjoyment of the Roanoke River Basin and related waterways – and Duke Energy’s initial closure plan. The plaintiff alleged harm because its members “recreate, fish, and own property in the Roanoke River Basin,” because its members “fear contamination . . . and pollution from coal ash in groundwater,” and because Duke Energy’s actions were “reducing [members’] use and enjoyment” of the Roanoke River Basin and other waterways. The court found that while the plaintiff alleged harm to its interests, it failed to allege facts demonstrating how those harms were “fairly traceable” to Duke Energy’s preparation of an initial closure plan under the CCR rule.
The court also rejected the plaintiff’s standing argument based on a procedural violation. Quoting Spokeo, the district court held that a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the [constitutional] injury-in-fact requirement.” A plaintiff must be able to show both a “concrete injury” and a procedural violation to have standing.
Here, alleged violation of the CCR rule by itself, without any facts showing how the concrete harm was causally connected to the initial closure plan, was not sufficient for standing. The plaintiff also attempted to argue that it had informational standing because Duke Energy’s closure plan failed to meet the CCR rule requirements, thereby denying the plaintiff information it was entitled to. The court also rejected this argument because the plaintiff simply did not allege either that its members sought and were denied access to information under the CCR rule, or that such denial caused injury. Accordingly, the case was dismissed.