August 28, 2017 Articles

The New Wave of Citizen Suits: The RCRA, Endangerment, and Climate Change

New lawsuits involve legal theories that seek to stretch the boundaries of the RCRA's endangerment citizen suit provision.

By Edward C. Lewis and H. Joseph Drapalski – August 28, 2017

Fears of a Trump administration rollback of environmental regulations, enforcement, and Environmental Protection Agency funding have spurred a flurry of private funding for many of the larger and more litigious environmental groups. See, e.g., Ben Wolfgang, “Trump Helps Drive Donations to Environmental Groups,” Wash. Times, Feb. 9, 2017; Jennifer Bissell, “Donations to Charitable Groups Surge After Trump Victory,” Fin. Times, Nov. 11, 2016. These groups are increasingly turning to citizen suit provisions under the major environmental statutes, which provide a cause of action for individuals and groups to act as private attorneys general by suing for alleged environmental violations. Many of these environmental groups are filing lawsuits based on novel legal theories that seek to expand the boundaries of these statutes.

The Resource Conservation Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., an environmental statute enacted to regulate solid and hazardous waste, is one such statute. Plaintiffs are employing the RCRA’s citizen suit provision to address prospective concerns ranging as far afield as those commonly associated with climate change—a theory never seen in the nearly 50 years since RCRA’s enactment. 

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