Law360 Quotes Michael Mills on Ninth Circuit's Narrow Reading of RCRA Citizen Suit Provision for Air Pollution

Partner Michael Mills was quoted in a Law360 article titled “9th Circ. Just Latest Court To Read Pollution Laws Narrowly.” The article discusses the outcome of a recent suit brought by environmental groups and other organizations in California under the Resource Conservation and Recovery Act (RCRA). The suit, dismissed by the Ninth Circuit court, argued that diesel emissions at a rail yard constituted solid waste because the particulate matter ends up on land or in water though initially released into the air.

The suit was brought by the plaintiffs under the RCRA’s citizen suit provision, as the California Air Resources Board had not exercised its authority under the Clean Air Act to regulate “indirect sources” of pollution such as rail yards. The court rejected the suit on the basis that the RCRA, which regulates pollutants first placed “into or on any land or water,” excludes diesel emissions, which are first emitted into the air. The court acknowledged that the RCRA does contain an air emission regulation provision, but determined it doesn’t extend to citizen suits.

Mills said the case is representative of a new era in which environmental groups, seeking new targets for litigation after many earlier RCRA cases have been settled across the country, have  fewer straightforward legal options for going after those targets. “Another great example is oil and gas production and exploration, where there are a lot of things happening that the regulators haven’t been completely vigilant about,” Mills said. “There are a lot of things happening below the surface of the ground that people don’t know about, and environmental groups are wanting to find out more about that.”

Read “9th Circ. Just Latest Court To Read Pollution Laws Narrowly,” published August 28, 2014. (Subscription required.)