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Carbon Sequestration Council v. Environmental Protection Agency

ELR Citation: 45 ELR 20103
Nos. 14-1046, (D.C. Cir., 06/02/2015)

The D.C. Circuit held that energy companies lack standing to challenge EPA's determination that carbon dioxide (CO2) streams injected into Class VI wells for the purpose of geologic sequestration constitute "solid waste" subject to RCRA. Class VI wells are designated to receive CO2 streams generated as part of a climate change mitigation program known as carbon capture and storage. This program involves the capture of CO2 from industrial sources, the compression of that CO2 into a "supercritical fluid" that is neither a liquid nor a gas but has properties of both, and the injection of that supercritical CO2 into an underground well to ensure that it does not reenter the atmosphere. Energy companies challenged the rule, arguing that the supercritical CO2 streams are not RCRA solid waste. But the court dismissed the claims because the petitioners lacked standing. One of the petitioners failed to allege that it uses or intends to use any Class VI wells; rather, it captures and compresses CO2 either for use in enhanced oil recovery or in Class V experimental wells. Another petitioner, a trade group, sought to demonstrate representational standing through one of its members. But the member concedes it is not directly regulated by the disputed rule; rather, it claims that the rule presages regulation of its enhanced oil recovery activities, and that this will cause it to change its business practices in anticipation of likely future regulation. But this is not enough to demonstrate injury for purposes of Article III standing. There is nothing in the rule to suggest that EPA intends to extend the rule to cover the activities of concern to the member; indeed, EPA expressly distinguished the member's activities from those being regulated and suggested that they are unlikely to be regulated in the future.