OKLAHOMA CITY – A four-year-old lawsuit challenging Oklahoma’s regulation of coal ash disposal was ordered dismissed recently by the U.S. Court of Appeals for the District of Columbia Circuit, the state Attorney General’s office announced.
In Waterkeeper Alliance v. Regan, the D.C. Circuit held unanimously on July 26 that the three advocacy groups bringing the suit lacked standing to challenge Oklahoma’s environmental program. Certain of their claims “fall short of even speculation” and Oklahoma’s program provides for greater public participation than the federal program, the appellate court asserted.
The U.S. District Court for the District of Columbia “found no real problem, and now the D.C. Circuit has held that the case should have never been allowed in the first place,” Oklahoma Attorney General John O’Connor said.
Mithun Mansinghani, Oklahoma’s solicitor general, led the team that argued the cause for Oklahoma. Justice Department attorney Robert J. Lundman led the team arguing for the U.S. Environmental Protection Agency.
As the D.C. Circuit explained, coal-fired power plants produce “considerable amounts of waste” known as coal ash that contains carcinogens and other toxic chemicals. Consequently, it must be disposed of properly because it can harm to the environment and can “impair the health of anyone living near disposal facilities.”
In 2015 the EPA established federal standards for proper disposal of coal ash. Instead of submitting to federal oversight of coal ash facilities within its borders, a state can develop its own permitting program and seek EPA’s approval of the state program “as consistent with federal standards,” the D.C. Circuit Court of Appeals related.
The EPA’s administrator “shall approve” a state permitting program if the state program’s standards “are at least as protective as the criteria” in the 2015 Rule.
Oklahoma obtained EPA approval in 2018 of a disposal program for coal ash. Oklahoma grants operating permits to coal-ash disposal facilities that “meet a set of state standards that are designed to mirror or be more protective than the 2015 Rule,” the circuit court wrote.
Three advocacy groups – Waterkeeper Alliance, of New York City; the Local Environmental Action Demanded Agency of Vinita, Oklahoma; and the Sierra Club, based in Oakland, California – sued the EPA in 2018, challenging its approval of Oklahoma’s coal-ash disposal regulation program.
Coal-fired power plants “generate one of the largest and most toxic solid-waste streams in the nation,” including large quantities of heavy metals and metal compounds such as arsenic, boron, cadmium, chromium, lead, mercury, selenium, and thallium, the plaintiffs argued in their lawsuit petition.
“These toxic chemicals can cause cancer and other adverse health impacts, including reproductive, neurological, respiratory, and developmental problems.”
Further, for decades, in the absence of national standards requiring safe disposal, coal ash was dumped into thousands of unlined and unmonitored lagoons, landfills, pits, and mines across the U.S. “The result was the widespread release of dangerous pollutants from coal ash to water, air, and soil, endangering human health and the environment.”
The State of Oklahoma and various utility companies, including Public Service Co. of Oklahoma, and Oklahoma Gas & Electric Co., intervened on behalf of the EPA.
Another intervenor was the Utility Solid Waste Activities Group. The USWAG was founded in 1978 and is an association of more than 150 electric utilities, utility operating companies, power producers, energy service companies, and related associations such as the Edison Electric Institute and the National Rural Electric Cooperative Association.
Oklahoma program was
first to receive EPA OK
The Oklahoma Department of Environmental Quality, which has regulatory jurisdiction of coal combustion residuals in this state, also intervened. The DEQ noted that the EPA approved Oklahoma’s application in 2018, “making Oklahoma the first and only state to achieve this regulatory milestone.”
If the environmental petitioners were to succeed, “This would deprive the State of Oklahoma” of sole regulatory control over coal combustion ash within its borders “at a time where there exists a significant federal regulatory gap,” the DEQ wrote in December 2018.
In 2020 the D.C. federal district court granted summary judgment to the EPA and Oklahoma on all but one of the advocacy group’s claims.
The July 26 decision by the D.C. Circuit Court of Appeals vacated that summary judgment decision, ruling that the case should never have been allowed to proceed at all because the environmental trio lacked legal standing. “We do not reach the merits of the claims before us, because we conclude that plaintiffs lack standing to bring them,” the appellate court declared.
The plaintiffs raised seven claims, including a complaint that the Oklahoma Program “allows for insufficient public participation opportunities” in some permitting actions.
The appellate court noted that the plaintiffs “concede that the 2015 [EPA] Rule affords fewer public-participation opportunities than the Oklahoma Program” does. “So, if anything, EPA’s approval of the Oklahoma Program increased plaintiffs’ members’ opportunities to participate in local decisions involving coal ash disposal.”
The plaintiffs also protested that the Oklahoma Program “provides for permits for the ‘life’ of a unit, or until the facility ceases or suspends operations.” They argued that facilities with lifetime permits “would cease to comply with federal standards upon any amendment of those standards.”
Yet the three environmental groups “have not shown that applicable federal standards are imminently likely to become more protective than Oklahoma’s standards,” the appeals court wrote.
The sole complaint that succeeded was a challenge to Oklahoma’s allowance of unlined surface impoundments of coal ash, “and EPA has not appealed the [D.C.] district court’s ruling against it on that claim,” the D.C. Circuit Court of Appeals noted.