The natural resources defense attorney told the 9th Circuit Court of Appeals that the reversal of the “faithful application” of the RCRA by a three-judge panel “could restrict the ability of private parties to use the RCRA to address imminent threats to health and the environment”.
Exactly one thing is true about this statement – the reversal of the immediately controversial decision of the three-judge panel last fall will be restrict the ability of plaintiffs to make claims that should not be made and seek attorneys’ fees for doing so.
It is really important to unpack the other things that the NRDC falsely suggests.
First, the decision of the three-judge panel is anything but faithful to the RCRA.
The relevant part of this federal environmental law applies to the transportation and disposal of solid waste. The NRDC states that minute concentrations of hexavalent chromium in groundwater, no more than twenty-four parts in a billion, constitute solid waste of the kind that Congress intended to regulate when it passed this law. He goes on to say that the municipal water supplier is carry this solid waste when it transports from its wells to its customers water containing not more than 24 parts per billion of hexavalent chromium. Other NGOs have made similar claims about minute amounts of nitrogen in groundwater.
To suggest that the transport of groundwater containing parts per billion of anything is the transport of one solid waste is not only unfaithful to the language of the law, it is an imaginative interpretation of the law that you will not find in any regulation that has only been dreamed up by NGOs in recent years.
Turning to the equally imaginative suggestion of an “imminent threat to health and the environment”, the NRDC fails to tell the Court, or any of us, that the water supplied to the people of Vacaville meets all applicable federal and state standards.
Of course, as the NRDC very well knows but forgets to mention, federal standards include those established under the Federal Safe Drinking Water Act, and the State of California has its own strict standards. These laws, not the federal law regarding transportation and disposal of solid waste, apply.
If we think our federal and state environmental laws need improvement, we should lobby our elected officials to improve them.
But fueling the fears of an already cynical populace that our federal, state and local governments aren’t doing their job isn’t worth the revenue NGOs could make from misusing the laws we have.