Ninth Circuit Permits Interest-Group Enforcement of RCRA after EPA Exercises Non-Enforcement Discretion on Stormwater

sboxermanFeatured Expert Column—Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP

Can an environmental organization file suit under the Resource Conservation and Recovery Act’s (“RCRA”) citizen-suit provision claiming harm from stormwater runoff which could be, but was not, subject to limits under a Clean Water Act (“CWA”) permit? In a November 2, 2017 decision, Ecological Rights Foundation v. Pacific Gas and Electric Company, the U.S. Court of Appeals for the Ninth Circuit held that it could. The ruling, which also rejected the defendant’s arguments opposing Article III standing, is a portentous development at a time when environmental groups are actively seeking out litigation opportunities to enforce federal regulations. Continue reading “Ninth Circuit Permits Interest-Group Enforcement of RCRA after EPA Exercises Non-Enforcement Discretion on Stormwater”