chevron-down Created with Sketch Beta.



Emerging trends in RCRA citizen suits

Ame C Lewis and Maureen L Mitchell


  • RCRA citizen suits have changed dramatically involving a wider scope of claims, including climate change and emerging contaminants that raise novel issues for courts and counsel.
  • As a result of RCRA citizen suits, hundreds of millions of dollars have been committed to address sources of contamination in a variety of industries.
  • This article examines imminent and substantial endangerment claims under RCRA and practical impacts on RCRA citizen suit cases.
Emerging trends in RCRA citizen suits
Jordan Lye via getty images

Jump to:

Resource Conservation and Response Act (RCRA) citizen suits have drastically changed the environmental enforcement landscape over the last few years. Plaintiffs increasingly seek to leverage the statute’s broad language to address some of today’s most pressing environmental issues in the wake of decreasing federal enforcement. At the same time, funding for environmental organizations has increased sharply, enhancing their ability to bring more lawsuits to combat perceived gaps in environmental protection under the Trump administration.

As a result of RCRA citizen suits, hundreds of millions of dollars have been committed to address sources of contamination in a variety of industries. Energy companies have agreed to excavate and dispose coal ash off-site, large dairy farms have agreed to line manure ponds, and nuclear waste remediation contractors have agreed to upgrade worker protection to reduce exposure to toxic gases and vapors. These settlements have occurred due to broad authority under RCRA's citizen suit provision, which allows citizen suits to be brought against "any person" who "has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)((B). If a court finds that an imminent and substantial endangerment to health or the environment exists, it can order injunctive relief and award a successful plaintiff its attorneys' and expert witness' fees and costs. This broad grant of authority in matters involving complex environmental problems has raised new questions about the role of the courts in addressing these claims.

Imminent and substantial endangerment claims under RCRA

RCRA is a "cradle to grave" statute governing the generation, treatment, storage, and disposal of hazardous and solid waste. The statute provides plaintiffs two primary bases for citizen's suits: (1) alleged violations of any "permit, standard, regulation, condition, requirement or order" and (2) the past or present "handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. . . ." 42 U.S.C. § 6972(a)(1)(A), (B) (emphasis added).

The availability of injunctive relief to prevent ongoing harms makes "imminent and substantial endangerment" citizen suits unique under environmental law. RCRA allows private citizens to force responsible entities to clean up waste causing imminent and substantial endangerment, or to abate the polluting activity. However, RCRA is not a general clean-up statute, and it does not allow plaintiffs to recoup monetary damages or seek recovery for past response costs.

RCRA does not define "imminent and substantial endangerment," leaving courts to construe the scope of its application. In 1996, the U.S. Supreme Court interpreted "imminent" narrowly, finding that "an endangerment can only be 'imminent' if it 'threatens to occur immediately.'" Meghrig v. KFC Western, Inc., 516 U.S. 479, 485-86 (1996). A threat of future harm can be imminent where the harm may occur in the near-term if the risk of threatened harm exists at the time of the lawsuit. Id. at 486. Since Meghrig, courts have broadened the reach of the imminent and substantial endangerment clause. To establish that an endangerment may be "imminent," there must be a reasonable prospect of future harm, but courts do not necessarily require evidence that the actual harm will occur. Maine People's Alliance and Natural Resources Defense Council v. Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006); 307 Campostella, LLC v. Mullane, 143 F. Supp. 3d 407, 414 (E.D. Va. 2015). Courts have allowed lawsuits even where the actual harm might not occur for a long time, as long as the endangerment is ongoing. Burlington Northern and Santa Fe Railroad Co. v. Grant, 505 F.3d 1013, 1020-21 (10th Cir. 2007). Endangerment is "substantial" where the risk is serious and there is reasonable cause for concern that someone or something may be exposed to risk of harm by release, or threatened release, of hazardous substances if remedial action is not taken. Id. at 1021; Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1015 (11th Cir. 2004). Finally, the plaintiff must establish that defendant's conduct is causing or contributing to the harm.

Current trends involving complex environmental threats

Emerging contaminants and complex environmental threats such as climate change and disposition of spent ammunition are presenting cutting-edge questions to the courts. See Tennessee Riverkeeper, Inc. v. 3M Co., 234 F. Supp. 3d 1153 (N.D. Ala. 2017); Conservation Law Found., Inc. v. ExxonMobil Corp., No. CV 16-11950-MLW, 2020 WL 1332949 (D. Mass. Mar. 21, 2020); Ctr. for Biological Diversity v. United States Forest Serv., 925 F.3d 1041 (9th Cir. 2019). These questions go beyond traditional defenses involving statutory elements, such as standing, notice, and whether the government is already prosecuting the alleged violations and threats to the environment. Recent trends show courts grappling with concepts such as primary jurisdiction and the balance of authority between courts and administrative agencies charged with environmental enforcement and other duties. The focus has shifted to some degree away from the plaintiff's entitlement to relief and toward the court's discretion to grant it.

A recent decision by the U.S. District Court District of Massachusetts in Conservation Law Foundation, Inc. v. ExxonMobil Corp. noted that the use of RCRA citizen suits to address complex environmental threats such as climate change is different than the "typical" RCRA citizen suit. Specifically, the court emphasized the complex technical questions it had to consider, such as whether, how, and to what extent climatologists believe weather patterns in Boston are changing, and how prudent industrial engineers would respond to such changes. This undertaking implicates scientific and policy issues absent from a typical citizen suit in which the court compares the level of pollutants discharged to the level of pollutants allowed by the permit. The court concluded that the U.S. Environmental Protection Agency (EPA) had primary jurisdiction to craft a discharge permit that addressed the plaintiffs' climate change concerns, and that it would be premature to grant injunctive relief before allowing EPA an opportunity use its expertise to "unravel intricate, technical facts." The practical impacts on litigants have been significant.

Practical impacts on RCRA citizen suit cases

Whether a party is on the plaintiff or the defense side, developing a RCRA litigation strategy now requires a bigger toolbox. Recognizing the expansive authority courts have to require complex environmental responses, litigants are increasingly turning to scientific and policy arguments to advocate for why a court should or should not take action. Litigation support in the form of environmental consultants who can testify as to a party's compliance or noncompliance is not enough. A wider range of consulting and testifying experts should be involved early in a case to advise on the scientific, technical, policy, and financial consequences of using the courts to address complex environmental issues. And if a court deems it necessary to impose some kind of injunctive relief, thorny questions such as the nature, extent, and future oversight of the injunction must be tackled. Rather than leave such decisions in the hands of a judge, in cases where RCRA citizen suit claims survive these threshold issues, strong incentives exist to manage the extensive financial and environmental implications by negotiating a mutually agreed resolution. As a result, the trend is for fewer cases to reach trial on the merits. So long as the RCRA citizen suit provision allows litigation to fill environmental regulatory gaps, courts will continue to face challenging questions of when and how to exercise its expansive authority on complex environmental problems.