“Today’s decision will safeguard the health of communities throughout the Gulf region. Exposure to hazardous waste can cause cancer and other horrible diseases that far too many people here already suffer from. Getting rid of these loopholes is a big step in the right direction."See? Hazardous waste can cause cancer and other horrible diseases. That's what Marylee Orr, president of the The Louisiana Environmental Action Network (LEAN) is quoted as saying. So getting rid of the Comparable Fuels Exclusion - a 'loophole' as she sees it - will protect the community. This is, in my opinion, and important claim. Will public health be protected if there is no Comparable Fuels Exclusion?
The Sierra Club claims there is a harm being done to their members because of this exclusion. There had to be a claim of harm to get the court case going - called "standing." In order for the Sierra Club to bring this case forward they had to find people who claim to be harmed.
The Environmental Petitioners [Sierra Club] have met their burden of demonstrating standing on behalf of their members. They have submitted declarations of long-time members who spend time near facilities which, as a result of the Comparable Fuels Exclusion, now burn comparable fuels, and who are concerned about the emissions’ effects on their health and, in some cases, spend less time outdoors on that account.This, according to the Court would:
...satisfy the Environmental Petitioners’ evidentiary burdens to demonstrate injury, causation and redressability.Now here is where it gets all legal like. In order to bring the case forward, they had to find members could demonstrate injury, causation and redressability. This would seem to support Ms. Orr's contention that vacating the exclusion will "safeguard the health of communities throughout the Gulf region." That sounds reasonable. Harm should be mitigated. The Court write:
It is “well-established . . . that standing will lie where ‘a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal otherwise.’ ” This is precisely the case here. Once EPA promulgated the Comparable Fuels Exclusion, it was “ ‘a hardly-speculative exercise in naked capitalism’ ” to predict that facilities would take advantage of it to burn hazardous-waste-derived fuels rather than more expensive fossil fuels.The EPA [called the Intervenor]...:
...does not dispute that, as it turned out, many facilities did just that. In fact, one facility in proximity to the Environmental Petitioners’ members—the Chemical Co. Baton Rouge Plastics Plant—had pending RCRA applications to combust hazardous waste in its boilers (subject to RCRA regulation) before the 1998 Rule issued—which applications it promptly withdrew in May 1999 when it achieved compliance with the Comparable Fuels Exclusion and could therefore burn such fuels free from RCRA regulatory constraints.Remember, in order for the case to go forward, the Sierra Club had to find members that could meet the evidentiary burdens to demonstrate injury, causation and redressability. This gave them standing. There had to be a claim of harm. This harm came about when the company - Baton Rouge Plastics - burned fuels under the Comparable Fuels Exclusion.
The Sierra Club does not have to show that there was harm only allege that there was harm because the EPA allowed Baton Rouge Plastics to burn fuels under the Comparable Fuels Exclusion.
This is where I get confused. Standing comes, in this case, from "the conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal otherwise." This states that the plaintiff was injured. Were the "long-time members who spend time near facilities which, as a result of the Comparable Fuels Exclusion, now burn comparable fuels" injured or just "concerned about the emissions’ effects on their health?"
That's what bugs me about this case. There is nothing presented that shows that there was harm. There is nothing presented that shows how the health of communities throughout the Gulf region is now "safeguarded." There is nothing presented that shows that the hazardous waste burned presents a higher or different risk then burning a material fuel. Nothing. This whole vacating process is based on whether EPA could make a Comparable Fuel Exclusion.
So let's get back to harm:
The [EPA] asserts that the Environmental Petitioners have not shown that burning comparable fuels is any more dangerous than burning fossil fuels and therefore they have not demonstrated the possibility of any injury from the Comparable Fuels Exclusion. “In EPA’s expert judgment,” they note, “burning these comparable fuels will have roughly the same risks, and the same affect [sic] on air quality, as burning commercially available virgin fuels.”But that did not matter to the Court apparently:
The Environmental Petitioners, however, are challenging EPA’s assessment of the Comparable Fuels Exclusion’s risks—and we “assume for standing purposes” that the Environmental Petitioners are “correct on the merits.”The whole case, once it was allowed to move forward became about answering the question of whether the Comparable Fuels Exclusion bypassed the requirement that the EPA "shall promulgate regulations establishing . . . standards”
Nothing to do about harm...
Legality...Reality
Next Post: Dear Sierra Club, Please Stop. Comparable Fuels Rule Part 3
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