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National Recycling Coalition v. Reilly

ELR Citation: 20 ELR 20427
Nos. No. 88-1511, 890 F.2d 1242/30 ERC 1808/(D.C. Cir., 12/12/1989) Motion for reh'g en banc denied per curiam

The court denies a motion for rehearing en banc of its previous decision upholding the Environmental Protection Agency's (EPA's) guidelines under the Resource Conservation and Recovery Act (RCRA) for federal agency purchasing of recycled paper products. 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 notes that the provision acts as a tiebreaker, giving the business to recycled paper when its price is the same as virgin paper's. The court observes that Congress' repeated use of a "reasonableness" standard grants EPA flexibility in implementing the program. The court further observes that EPA has given recycled material only a limited advantage in the price domain because it is concerned about excess government expenditures, product availability, and artificial nonprice barriers.

A dissenting judge would hold that EPA's interpretation of the statutory term "unreasonable price" as meaning any increment in the price of recycled goods over the cost of virgin goods is contrary to congressional intent. EPA's rule should be reversed because EPA acted under the false impression that it lacked authority to recommend a price preference for recycled goods. As is, EPA's regulations amount to no more than giving recycled goods their fair chance; they are not the preference program Congress mandated.

[The court's prior decision is published at 19 ELR 21424.]

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; MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, and SENTELLE, Circuit Judges.