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National Recycling Coalition v. Reilly

Citation: 19 ELR 21424
No. No. 88-1511, 884 F.2d 1431/30 ERC 1273/(D.C. Cir., 09/12/1989)

The court holds that the Environmental Protection Agency's (EPA's) guidelines under the Resource Conservation and Recovery Act (RCRA) for federal agency purchases of recycled paper products are reasonable. RCRA § 6002(c)(1)(C) provides that a procuring agency is not required to purchase recycled products if they "are only available at an unreasonable price." The court first holds that petitioners have representational standing as they are membership organizations dedicated to encouraging the recovery, reuse, and conservation of materials and energy, and the protection of the environment and public health. Moreover, petitioners include corporations engaged in commercial recycling who would have standing to sue individually. The court holds that petitioners' claims are ripe for review because EPA's guidelines represent final agency action and Congress has declared a preference for prompt judicial review of EPA guidelines.

The court holds that EPA's interpretation that a price is "unreasonable" under RCRA § 6002(c)(1)(C) if it is greater than the price of a competing product made of virgin material is reasonable. The text of § 6002(c)(1)(C) and the language and design of RCRA fail to reveal what Congress intended the phrase "unreasonable price" to mean, so the court must determine whether EPA's construction is permissible under the second prong of the Supreme Court's Chevron test. The court finds unsupported the assumption that Congress believed price was the critical obstacle to the marketing of recycled products. RCRA's provisions suggest that Congress relied on factors other than price to achieve its policy of encouraging the reclamation of solid waste. EPA's guidelines identify acceptable reclamation alternatives to virgin material products and are consistent with RCRA's overall purpose. The court declines to review petitioners' challenge to EPA's exclusion for products that are "incidental" to federal funding, since petitioners failed to raise this issue during the rule making process. Finally, the court holds that while EPA is in technical noncompliance with § 6002(e) for failing to publish information on the relative price and availability of recycled paper, the agency may cure the deficiency by inserting in its guideline a reference to where and how interested parties may secure the data.

A dissenting judge would hold that RCRA requires EPA to apply its reasoned discretion in deciding whether to recommend the purchase of recycled materials where comparable virgin materials could be obtained more cheaply. RCRA's policy of encouraging the reclamation of solid waste would be frustrated if "unreasonable price" were merely defined as the cheapest materials available. Since EPA erroneously interpreted RCRA to provide no authority to recommend any price preference in the purchase of recycled goods, its rule should be reversed.

Counsel for Petitioners
Karl S. Coplan
Berle, Cass & Case
245 Rockefeller Plaza, Ste. 2350, New York NY 10111
(212) 765-1800

Counsel for Respondent
J. Steven Rogers
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4122

Before WALD, Chief Judge, and RUTH B. GINSBURG and BUCKLEY, Circuit Judges.