1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENVIRONMENTAL INTEGRITY 

PROJECT, et al., 

Plaintiffs,

v. Civil Action No. 16-842 (JDB)

GINA MCCARTHY,

 Defendant.

MEMORANDUM OPINION

Plaintiffs, a coalition of environmental advocacy groups,1 are unimpressed by the EPA’s 

current regulations and guidelines concerning the disposal, storage, transportation, and handling 

of oil and gas wastes. On the other hand, movants—the State of North Dakota, the American 

Petroleum Institute, the Independent Petroleum Association of America, and the Texas 

Independent Producers and Royalty Owners Association2—think the EPA’s current approach is 

just fine. But this case is not about that dispute. Instead, this case deals with a different and 

narrower question: whether the EPA Administrator has violated non-discretionary, statutory duties 

to periodically review and, where necessary, revise those regulations and guidelines. Plaintiffs

allege that the Administrator has violated those duties, and thus asks the Court to order the 

Administrator to perform them by a certain date. Fearing that such an order would result in 

burdensome new regulations, movants seek to intervene in this litigation pursuant to Federal Rule 

 1 Plaintiffs are the Environmental Integrity Project; the Natural Resources Defense Council; Earthworks; the 

Center for Health, Environment and Justice; the West Virginia Citizen Action Group; the Responsible Drilling 

Alliance; and the San Juan Citizens Alliance. 

2 The American Petroleum Institute and the Independent Petroleum Association of America sought 

intervention through the same motion. They will be referred to collectively as the Industry Associations. 
2

of Civil Procedure 24. Under this Circuit’s standing jurisprudence, however, they are not entitled 

to intervene as of right. Nor would their participation be helpful in resolving the issues raised in 

this case. As a result, the motions to intervene will be denied. 

BACKGROUND

The Resource Conservation and Recovery Act of 1976, Pub. L. 94-580, 90 Stat. 2795 

(1976), created a comprehensive program for the handling of solid wastes. Hazardous wastes are 

governed by Subtitle C of the Act, see 42 U.S.C. §§ 6921–39g, which “establishes a cradle to grave 

federal regulatory system for [their] treatment, storage, and disposal.” Am. Portland Cement 

Alliance v. EPA, 101 F.3d 772, 774 (D.C. Cir. 1996) (internal quotation marks omitted). Nonhazardous solid wastes, on the other hand, are addressed by Subtitle D of the Act. See id. §§ 6941–

49a. “Under Subtitle D, states use federal financial and technical assistance to develop solid waste 

management plans in accordance with federal guidelines.” Envtl. Def. Fund v. EPA, 852 F.2d 

1309, 1310 (D.C. Cir. 1988). 

Oil and gas wastes are currently governed by Subtitle D. In 1980, Congress exempted oil 

and gas wastes from regulation under Subtitle C—although if the EPA later determined that

Subtitle C regulations were warranted, the agency was permitted to propose such regulations to 

Congress for possible adoption. Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 394 (D.C. Cir. 1989) 

(citing 42 U.S.C. § 6921(b)(2)(A) (the “Bentsen amendment”)). In a subsequent regulatory 

determination, the EPA concluded that oil and gas wastes should be treated only as non-hazardous 

wastes subject to Subtitle D. See Regulatory Determination for Oil and Gas and Geothermal 

Exploration, Development and Production Wastes, 53 Fed. Reg. 25,446, 25,446 (Jul. 6, 1988); see 

also Am. Iron & Steel Inst., 886 F.2d at 394. 
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This case concerns two sets of regulations promulgated by the EPA under Subtitle D. The 

first set establishes federal criteria for the classification of solid waste disposal facilities and 

practices. See 40 C.F.R. pt. 257; see also 42 U.S.C. § 6944(a). Facilities that fail to satisfy these 

criteria are classified as “open dumps”; practices that fail to satisfy the criteria are classified as

“open dumping.” See 40 C.F.R. § 257.1(a)(1)–(2). Both open dumps and open dumping are 

prohibited by the Act. Id.; see also 42 U.S.C. § 6945(a). The second relevant set of regulations 

establishes guidelines to assist states with the development and implementation of state solid waste 

management plans. See 40 C.F.R. pt. 256; see also 42 U.S.C. § 6942(a). 

Plaintiffs believe that these regulations have failed to keep pace with recent developments 

in the oil and gas industry, like the advent of hydraulic fracking. See Compl. [ECF No. 1] ¶¶ 2–3. 

They lay the blame for that failure at the feet of the Administrator who, they allege, has not 

meaningfully reviewed or revised the Subtitle D classification criteria since 1988, id. ¶ 4, or the 

state plan guidelines since 1981, id. ¶ 6. This suit is an attempt to spur some administrative action. 

Plaintiffs invoke the Act’s citizen suit provision, which allows individuals to sue the Administrator 

where she has allegedly failed “to perform any act or duty under this chapter which is not 

discretionary.” 42 U.S.C. § 6972(a)(2). Plaintiffs allege breaches of two non-discretionary duties

here. First, they claim the Administrator was required to review and, where necessary, revise the 

Subtitle D classification criteria not less frequently than every three years. Compl. ¶ 4 (citing 42 

U.S.C. § 6912(b)). Second, they claim the Administrator was required to review the state 

guidelines not less frequently than every three years, and revise them as may be appropriate. Id.

¶ 6 (citing 42 U.S.C. § 6942(b)). 

Asking the Court to enforce these statutory provisions, plaintiffs’ complaint includes three 

claims for relief. The first alleges that the Administrator already determined, in 1988, that 
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revisions to the Subtitle D classification criteria were “necessary,” see Compl. ¶ 92, and thus asks 

the Court to order the Administrator to “issue necessary revisions” of those regulations “by a date 

certain,” id. (prayer for relief B). In the alternative, plaintiffs’ second claim asks the Court to order 

the Administrator to “review, and where necessary revise” the Subtitle D classification criteria for 

oil and gas wastes “by a date certain.” Id. (prayer for relief C). And the third claim seeks similar 

relief as to the state plan guidelines. Id. (prayer for relief D). 

Now pending before the Court are three motions to intervene, filed by four would-be 

intervenors. Each claims that it has important interests at stake in this litigation. North Dakota, 

which is home to a thriving oil and gas industry, is concerned that, inter alia, it would “bear the 

additional cost of implementing any new federal regulations” resulting from this action. See North 

Dakota’s Mot. to Intervene [ECF No. 11-2] at 2. The Industry Associations are likewise concerned 

about “the imposition of unnecessary and unduly burdensome” new regulations, see Industry 

Ass’ns.’ Mot. to Intervene [ECF No. 14] at 3, as is the Texas Independent Producers and Royalty 

Owners Association (TIPRO), see TIPRO’s Mot. to Intervene [ECF No. 20-1] at 1. Each believes 

that Rule 24(a) of the Federal Rules of Civil Procedure entitles it to intervene in this action as a 

matter of right. In the alternative, however, each also seeks permissive intervention under Rule 

24(b). The plaintiffs and the EPA oppose intervention. 

LEGAL STANDARD

When determining whether a movant may intervene as of right under Rule 24(a), a court 

must consider four factors:

(1) the timeliness of the motion; (2) whether the applicant claims an 

interest relating to the property or transaction which is the subject of 

the action; (3) whether the applicant is so situated that the 

disposition of the action may as a practical matter impair or impede 

the applicant’s ability to protect that interest; and (4) whether the 

applicant’s interest is adequately represented by existing parties.
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Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (internal quotation marks 

omitted). Under circuit precedent, however, a would-be intervenor must also demonstrate that it 

has Article III standing. Id. at 731–32. Movants who lack standing are ineligible to intervene as 

of right. In re Endangered Species Act Section 4 Deadline Litig. – MDL No. 2165, 704 F.3d 972, 

979 (D.C. Cir. 2013). 

The “irreducible constitutional minimum of standing” consists of three elements: (1) 

movants must demonstrate an injury in fact; (2) there must be a causal connection between the 

injury and the conduct complained of; and (3) it must be likely that a favorable decision on the 

merits will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). An 

injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized 

and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotation marks 

and citations omitted). 

Alternatively, movants seek permissive intervention under Rule 24(b), which affords the 

district court discretion to permit intervention by movants who have a “claim or defense” that 

shares a “common question of law or fact” with the main action. Fed. R. Civ. P. 24(b)(1). “In 

exercising its discretion, the court must consider whether the intervention will unduly delay or 

prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). It may also 

consider “whether [the] parties seeking intervention will significantly contribute to the just and 

equitable adjudication of the legal question presented.” Sierra Club v. McCarthy, 308 F.R.D. 9, 

12 (D.D.C. 2015) (internal quotation marks and alterations omitted). The D.C. Circuit has not 

decided whether Article III standing is required for permissive intervention. Id. at 13 n.2 (citing 

Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013)). 
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DISCUSSION

A. Intervention as of Right

Whether movants can intervene in this action as of right boils down to a dispute about 

whether they have Article III standing. Several recent cases from this circuit have addressed 

standing in circumstances similar to those presented here. In Defenders of Wildlife v. Perciasepe, 

for example, plaintiffs sued the EPA Administrator alleging that he had failed to perform a nondiscretionary duty to issue regulations under the Clean Water Act; along with the complaint, the 

parties proposed a consent decree requiring the EPA to issue a notice of proposed rulemaking and, 

following a specified period of notice-and-comment, to take final action. 714 F.3d at 1321. When

an association of energy companies sought to intervene, the district court denied the motion on the 

basis that the movant lacked standing. Id. at 1322. The D.C. Circuit affirmed. The consent decree, 

the court explained, did not “require EPA to promulgate a new, stricter rule. Instead, it merely 

require[d] that EPA conduct a rulemaking and then decide whether to promulgate a new rule—the 

content of which [was] not in any way dictated by the consent decree—using a specific timeline.” 

Id. at 1324. The movant feared that judicial approval of the consent decree might, in time, lead to 

the promulgation of adverse regulations. But “the possibility of potentially adverse regulation” 

was insufficient to confer Article III standing. Id. at 1325.

Applying Defenders of Wildlife, the D.C. Circuit arrived at a similar result in In re Idaho 

Conservation League, 811 F.3d 502 (D.C. Cir. 2016). There, a number of environmental groups 

alleged that the EPA had failed to promulgate regulations required by a different environmental 

statute. Id. at 506. Petitioners and the agency ultimately proposed a consent decree, which would 

establish “an agreed upon schedule for a rulemaking” for one industry and “a timetable” by which 

the EPA would determine whether to engage in rulemaking for three other industries. Id. at 507. 

Once again, industry groups attempted to intervene, asserting that promulgation of stricter, more 
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burdensome regulations was a “foregone conclusion.” Id. at 514. Once again, however, the D.C. 

Circuit held that movants lacked standing. Pursuant to the consent decree, the court reasoned, the 

EPA “retain[ed] ‘discretion to promulgate a rule or decline to do so,’” even for the industry in 

which initiation of a rulemaking was required. Id. (quoting Defenders of Wildlife, 714 F.3d at 

1325 n.7). Thus, rather than “resolv[ing] the substance of any rulemaking,” the consent decree 

merely “‘prescrib[ed] a date by which regulation could occur.’” Id. (quoting Defenders of 

Wildlife, 714 F.3d at 1325). Because the consent decree did not itself inflict concrete harm on 

movants’ interests, they lacked standing. 

United in their opposition to the motions to intervene, plaintiffs and the EPA argue that 

this case fits squarely within that precedent. At most, they contend, this action will result in an 

order setting a “date certain” by which the EPA must make decisions about its Subtitle D 

classification criteria and state plan guidelines. The substantive content of those decisions, 

however, will not be dictated by this litigation and will therefore remain within the discretion of 

the agency. See Def.’s Opp’n [ECF No. 25] at 1–2; Pls.’ Opp’n [ECF No. 24] at 1–2. Hence, the 

parties continue, this action is merely about the timing of the EPA’s determination. And suits 

“over the timing of an agency determination [have] no effect on the movant’s interest in the 

substance of the determination.” Sierra Club, 308 F.R.D. at 12 (citing Defenders of Wildlife, 714 

F.3d at 1317). Put this all together here, the parties conclude, and movants, who are concerned 

primarily about the costs that they may incur under any revised regulatory regime, lack standing 

in this case focused only on scheduling of rulemaking review and therefore are not entitled to 

intervene as of right. See Def.’s Opp’n at 1–2; Pls.’ Opp’n at 1–2. The Court agrees.

Movants spend numerous pages trying to muddy the waters. First, they resist the parties’ 

attempt to characterize this action as one merely about scheduling. That characterization, they
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argue, is belied by plaintiffs’ first claim for relief, which seeks an order requiring the Administrator 

to “issue necessary revisions” of the Subtitle D classification criteria by a date certain. SeeCompl. 

(prayer for relief B). In movants’ view, plaintiffs seek a judicial order declaring that the current 

classification criteria are inadequate and requiring the promulgation of stricter ones—all to 

movants’ inevitable detriment. See North Dakota’s Reply [ECF No. 27] at 7–8; Industry Ass’ns.’

Reply [ECF No. 26] at 15–17; TIPRO’s Reply [ECF No. 28] at 6–7. By requesting such relief, 

movants contend, plaintiffs seek to put the substance of the EPA’s regulations squarely before the 

Court, to limit the EPA’s discretion, and to obtain a court order broader than those in prior cases. 

Thus, movants assert that Defenders of Wildlife and In re Idaho Conservation League are 

distinguishable, and that this Court’s analysis should be guided by an older D.C. Circuit case, 

Natural Resource Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977), in which intervention 

was allowed. See Industry Ass’ns.’ Reply at 13–15; TIPRO’s Reply at 16–17. 

These arguments are unpersuasive. Plaintiffs, as the masters of their complaint, deny that 

they are seeking this expansive relief. According to plaintiffs, their first claim for relief seeks only 

an order “requiring EPA to conduct [a] rulemaking on a date certain schedule.” Pls.’ Opp’n at 4

(internal quotation marks omitted). “[A]t most,” that order would “set a schedule for EPA to issue 

a proposed rule and take final action on the proposed rule.” Id. at 10–11. It would not in any way

dictate the rule’s content, nor prevent the EPA from declining to promulgate a new rule at all. Id.

(citing In re Idaho Conservation League, 811 F.3d at 514). Even as to its (allegedly broadest) first 

claim for relief, therefore, plaintiffs consider the “substance of any revised federal regulations” to 

be “beyond the scope of this action.” Id. at 17. 
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The Court accepts plaintiffs’ representations about the scope of their complaint.3 Based 

on those representations, their request for an order requiring EPA to “issue necessary revisions” is 

properly construed as a request for an order requiring the EPA to initiate a rulemaking and to issue 

whatever regulations that it, in its discretion, deems necessary—the same relief provided by the 

consent orders in the cases that movants now seek to distinguish. See Defenders of Wildlife, 714 

F.3d at 1324–25; In re Idaho Conservation League, 811 F.3d at 514. Nor is the Court comfortable 

relying on Costle, which did not perform the standing inquiry required by more recent D.C. Circuit 

precedent. See Defenders of Wildlife, 714 F.3d at 1325 (Costle “has no precedential effect on the 

jurisdictional question before us.”); see also Sierra Club, 308 F.R.D. at 13 (refusing to follow 

Costle on similar grounds). The Industry Associations contend that Costle can nonetheless guide 

the analysis here because the Costle court conducted a standing-like inquiry under Rule 24(a) by 

assessing whether intervenors had a legally protected interest in the litigation. See Industry 

Ass’ns.’ Reply at 13. The D.C. Circuit thinks otherwise. See Defenders of Wildlife, 714 F.3d at 

1325 n.8 (“There is no argument that Costle indirectly addressed standing by analyzing Rule 

24(a)(2).”). Thus far, then, movants have failed to convince the Court that this is more than a case 

about scheduling, and hence controlled by Defenders of Wildlife and its progeny. 

The Industry Associations and TIPRO put forth two related arguments that also fail. The 

Industry Associations raise the possibility that, in the event plaintiffs prevail, the Court will award 

them relief beyond what they have requested. See Industry Ass’ns.’ Reply at 6 (“[N]o one yet 

knows what breadth this Court’s order might be.”). That is pure speculation—and no more likely 

 3 The Administrator reads plaintiffs’ complaint in the same manner. See Def.’s Opp’n at 10–11 (“To be 

clear, the content of EPA’s decisions under RCRA is not within the scope of relief requested in the Complaint—nor,

indeed, could it be . . . . Even if Environmental Plaintiffs were to prevail on Count One of their Complaint, which 

alleges that EPA decided in 1988 that revised [classification criteria] were necessary, the maximum relief that 

Environmental Plaintiffs request is that the Court order EPA to make the necessary revisions—whatever they may 

be—by a date certain.”). 
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in this case than in any other where the ultimate disposition is unknown. Standing cannot rest on 

such speculative fears. The Industry Associations and TIPRO also argue that they have standing 

as the “object of the action” at issue. See Industry Ass’ns.’ Mot. to Intervene at 27; TIPRO’s Reply 

at 16. In a challenge to a rulemaking, for example, the regulated entities are the objects of the 

challenged agency action, and are therefore quite likely to have standing. See Fund for Animals, 

322 F.3d at 733–34. Here, however, the challenged agency (in)action is that of the Administrator, 

and an order granting plaintiffs relief would simply bind her to undertake procedural steps, causing 

no injury-in-fact to movants. Indeed, movants do not claim to have been harmed by the 

Administrator’s alleged inaction at all—if anything, they have benefitted from it. See Weaver’s 

Cove Energy, LLC v. Rhode Island Dep’t of Envtl. Mgmt., 524 F.3d 1330, 1333 (D.C. Cir. 2008).

Undeterred, movants seek a second way around Defenders of Wildlife. Unlike that case, 

they argue, this case does not involve a proposed consent decree. If the EPA continues to litigate 

this case, it will raise a number of substantive legal issues—issues on which movants have an 

interest in being heard. Collectively, the motions to intervene identify a laundry list of these issues. 

See, e.g., Industry Ass’ns.’ Mot. to Intervene at 6 (“With respect to the First Claim for Relief 

. . . the court must resolve the following [eleven] issues, in each of which movants can articulate 

compelling interests . . . .”); id. at 16 (“[Movants] have an interest in ensuring that the statutory 

framework of RCRA is not subverted . . . .”); id. (“[Movants] have a protectable interest in the 

construction of the statute that regulates them and their members’ operations.”); TIPRO’s Mot. to 

Intervene at 11–12 (“TIPRO has a distinct and direct interest in protecting the integrity of both the 

federal-state framework and the Texas RCRA program.”); id. at 17 (“TIPRO has an interest in 

setting the record straight as to the many factors that control determinations about disposal of such 
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wastes.”); TIPRO’s Reply at 16 (TIPRO members have an “interest in how key statutory 

provisions important to their business interests are interpreted.”). 

But these “interests,” as movants describe them, are insufficient to confer Article III 

standing. Even if the issues that movants identify are raised in this litigation, and even if they are 

resolved “against” movants in some sense, the most that will result is an order requiring some 

agency action by a “date certain,” and the “possibility of potentially adverse regulation” at some 

point in the future. Defenders of Wildlife, 714 F.3d at 1324. These speculative consequences do 

not rise to the level of an injury-in-fact. Id. Untethered, then, to any actual and imminent injury

threatened by this case, movants’ professed desire to weigh in on its merits is more akin to a 

“generally available grievance about government,” which is insufficient to create an Article III 

controversy. See Lujan, 504 U.S. at 573–74. Movants do not have standing to participate in this

case merely because it relates to their policy goals or because it may create precedent contrary to 

their preferred interpretation of the law. See Crossroads Grassroots Policy Strategies v. FEC, 788 

F.3d 312, 316 (D.C. Cir. 2015) (“[W]here a party tries to intervene as another defendant, we have 

required it to demonstrate Article III standing, reasoning that otherwise any organization or 

individual with only a philosophic identification with a defendant—or a concern with a possible 

unfavorable precedent—could attempt to intervene and influence the course of litigation.” (internal 

quotation marks omitted)); Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. 

Cir. 1995) (“[S]howing [Article III standing] requires more than allegations of damage to an 

interest in seeing the law obeyed or a social goal furthered.” (internal quotation marks omitted)). 

Finally, movants attempt to avoid Defenders of Wildlife by (somewhat vaguely) invoking 

the doctrine concerning “procedural injuries.” The procedural injuries doctrine “‘loosens the 

strictures’ of the standing injury by relaxing the immediacy and redressability requirements.” In 
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re Endangered Species Act Section 4 Deadline Litig., 704 F.3d at 976–77 (alteration omitted) 

(quoting Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009)). But to successfully invoke 

that doctrine, an individual must still point to a procedural right “‘designed to protect some 

threatened concrete interest of his that is the ultimate basis of his standing.’” Id. at 977 (quoting 

Lujan, 504 U.S. at 573 n.8). 

Movants’ claims of procedural injuries focus once again on plaintiffs’ first claim for relief. 

Ordinarily, movants argue, they would be entitled to participate in a review of the Subtitle D 

classification criteria, before the EPA decided whether any revisions were necessary. But if 

plaintiffs succeed in obtaining a court order that directs the EPA to initiate a rulemaking, movants 

will be locked out of this consultative process and their input will be confined to a (probably 

rushed, in their view) period of notice and comment. All of this, they conclude, violates procedural 

rights designed to protect their concrete interests. See, e.g., North Dakota’s Mot. to Intervene at 

4–5 (“Plaintiffs’ requested relief would also effectively foreclose North Dakota’s right to argue in 

the review process that the current federal regulations and guidelines are serving their purpose of 

providing support to its very effective solid waste program and that revising them would be 

counterproductive or unnecessary.”); Industry Ass’ns.’ Mot. to Intervene at 18–19 (“[Industry 

Associations] have a direct interest in any timetable that is established for review and revision,” in 

part because an “[a]ccelerated review of any potential regulations would necessarily diminish the 

opportunity for [them] to convey sufficiently the industry knowledge [they] have acquired over 

the years.”); TIPRO’s Reply at 10 (“Although Plaintiffs and EPA would have the chance to 

participate in and comment on the rulemaking that would actually establish standards, TIPRO’s 

ability to participate in the preliminary determination whether such a rulemaking is even necessary 

would be foreclosed.”). 
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These arguments do not amount to a procedural injury for purposes of Article III. First, as 

EPA points out, movants have not cited any persuasive authority for the proposition that they are 

entitled to participate when the EPA reviews its regulations to determine whether revisions may 

be necessary. See Def.’s Opp’n at 15 n.2; see also id. at 23. In an attempt to do so, TIPRO vaguely 

invokes “the protocols required by RCRA, the [Administrative Procedure Act], and the Due 

Process provisions of the U.S. Constitution.” TIPRO’s Reply at 13. That will not suffice.4 

Without more, movants have failed to identify a “statutory procedure” that plaintiffs’ requested 

relief, if granted, would “require[] EPA to violate.” Defenders of Wildlife, 714 F.3d at 1324. Nor 

do they make any headway by speculating that this case may result in a notice-and-comment 

rulemaking conducted on a compressed schedule. Similar arguments have recently been rejected 

by the D.C. Circuit, and thus will be here as well. See In re Idaho Conservation League, 811 F.3d 

at 514; Defenders of Wildlife, 714 F.3d at 1324. Hence, movants have failed to identify a 

procedural injury that will support their standing.5 

Out of ways to avoid Defenders of Wildlife, movants barrel headlong into it. The 

remaining “injuries” they allege would be inflicted only if the EPA actually promulgates new and 

stricter regulations. North Dakota, for example, claims that an EPA decision to regulate oil and 

gas wastes as “hazardous” under Subtitle C would cost the state and its oil and gas industry tens 

 4 TIPRO’s reply also cites 5 U.S.C. § 553(b) and (c), which govern notice-and-comment rulemaking. These 

provisions do not create a right for members of the public to participate in an agency’s deliberations about whether to 

propose a rulemaking. See Nat’l Mining Ass’n v. Mine Safety & Health Admin., 599 F.3d 662, 671 (D.C. Cir. 2010) 

(agency was not required to comply with notice-and-comment procedures before “withdrawing its intent” to propose 

a rulemaking). 

5 The Industry Associations believe they have a “procedural right” in the Bentsen Amendment, which 

exempted oil and gas wastes from regulation as hazardous wastes under Subtitle C pending further action by Congress 

or the EPA. See 42 U.S.C. § 6921(b)(2)(A); Am. Iron & Steel Inst., 886 F.2d at 377. The Industry Associations imply

that the relief sought by plaintiffs in this case would violate the Bentsen amendment, and thereby threaten their 

concrete interests. See Industry Ass’ns.’ Reply at 9. The Court does not understand how the EPA would violate the 

Bentsen amendment simply by scheduling a rulemaking or by reviewing its regulations—the only relief sought by 

plaintiffs in this case. 
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of millions of dollars. See Decl. of Lynn Helms [ECF No. 11-3] ¶ 25; see also Decl. of David 

Glatt [ECF No. 11-4] ¶ 11. The state is also concerned that new regulations would threaten its 

thriving oil and gas industry, depress its tax intake, and interfere with its sovereign right to regulate 

within its own borders. See North Dakota’s Mot. to Intervene at 16–19. The Industry Associations 

are similarly concerned about what new regulations might mean for their members, who believe 

that overly stringent regulation of oil and gas wastes would require operators to spend significant 

funds reconfiguring capital, increase the costs of regulatory compliance, and, ultimately, drive up 

the price of oil and gas products—all without environmental benefit. See Aff. of Erik Milito [ECF 

No. 14-1] ¶ 8; Aff. of Lee O. Fuller [ECF No. 14-2] ¶¶ 8–10; Aff. of Douglas Gonzalez [ECF No. 

14-3] ¶¶ 8–9; see also Industry Ass’ns.’ Mot. to Intervene at 24–25. TIPRO members also join the 

chorus, echoing several of the same concerns. See Aff. of Ed Longanecker [ECF No. 20-2] ¶ 8; 

Aff. of Raymond Welder [ECF No. 20-3] ¶¶ 5–7; see also TIPRO’s Mot. to Intervene at 11–13. 

All of this is contingent, however, on EPA deciding to issue new and stricter regulations. 

Movants may feel that stricter regulation is a “foregone conclusion.” See In re Idaho Conservation 

League, 811 F.3d at 514. But this case does not concern the substantive content of EPA’s 

regulations. That issue will be taken up, if at all, in a notice-and-comment rulemaking conducted 

by EPA at some point in the future. But for the time being all that exists is the “possibility of 

potentially adverse regulation,” which does not rise to the level of a concrete and imminent injuryin-fact for purposes of Article III.6 See Defenders of Wildlife, 714 F.3d at 1324–25. Because 

 6 North Dakota also cites the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497, 520 (2007), 

as support for the proposition that it deserves “special solicitude in the standing analysis.” North Dakota’s Mot. to 

Intervene at 22. But Massachusetts does not obviate North Dakota’s need to point to an injury-in-fact, traceable to 

the challenged action, and redressable by the judicial relief requested. See Massachusetts, 549 U.S. at 521–27. There, 

the state asserted that “rising seas had begun to swallow [its] coastal land.” Id. at 521. Here, North Dakota has not 

alleged an analogous injury-in-fact to the “earth and air within its domain.” Id. at 519 (quoting Georgia v. Tennessee 

Copper Co., 206 U.S. 230, 237 (1907)). The injuries it has alleged will only come to pass if the EPA adopts stricter 

federal regulations—a contingency outside the control of this Court and insufficient to support North Dakota’s 

standing. 
15

movants lack standing, they are not entitled to intervene in this action as of right under Rule 24(a).7 

See In re Idaho Conservation League, 811 F.3d at 513–14 (“[P]roposed intervenors fall short of 

demonstrating their right to intervene because they fail to show they have Article III standing, 

which they do not dispute is required.”).

B. Permissive Intervention 

The remaining question is whether movants should be permitted to intervene under Rule 

24(b). Under D.C. Circuit precedent, it is unclear whether movants’ inability to demonstrate 

Article III standing must also doom their request for permissive intervention. See Defenders of 

Wildlife, 714 F.3d at 1327. The Court need not reach that question, however, because it will deny

movants’ request for permissive intervention on other grounds. 

In support of their motions, movants highlight their substantive experience with 

implementation of solid waste disposal programs, particularly as they relate to oil and gas wastes. 

See North Dakota’s Mot. to Intervene at 26 (“North Dakota will certainly contribute to a full 

development of the factual and legal issues in this case because it has been implementing a solid 

waste program under RCRA Subtitle D with a particular emphasis on the oil and gas sector for 

more than thirty years.”); Industry Ass’ns.’ Mot. to Intervene at 29 (“[O]n the basis of their 

experience on the substantive issues implicated in this action as demonstrated by the decades of 

involvement in the oil and gas industry, [the Industry Associations] can be expected to aid the 

Court and the parties in resolving the issues in this case and fashioning appropriate relief, if 

 7 Several movants suggest that, if they lack standing, then plaintiffs must lack standing as well. See North 

Dakota’s Reply at 10–14; Industry Ass’ns.’ Reply at 18–20. But Article III does not require such completesymmetry. 

The D.C. Circuit’s decision in In re Idaho Conservation League provides a case in point. In that case, petitioners 

claimed that their injuries would be redressed by stricter federal regulation. 811 F.3d at 509–10. Proposed intervenors, 

on the other hand, claimed that they would be injured by the adoption of the same regulations. Id. at 513–14. The 

court held that the petitioners had standing while the proposed-intervenors lacked it, even though the decision about 

whether to promulgate the regulations remained in the discretion of the EPA. See id. at 509–14. 
16

necessary.”); TIPRO’s Mot. to Intervene at 25 (“TIPRO will assure that all interested parties are 

heard regarding the lawfulness of EPA’s activity with respect to the regulation of oil and gas wastes 

under RCRA, the adequacy of existing state regulations, the impact of potential federal regulation 

on both states and regulated entities, and other important issues at stake in this case.”). 

But as explained above, this case is not about the substantive content of federal regulation. 8 

Although movants’ plainly have much to say on that topic, the Court does not think their input will 

be particularly helpful in achieving the just resolution of the narrower procedural question posed 

here. See Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 313 (D.D.C. 2011). Movants’ 

desire to inject their substantive concerns into this procedural case, moreover, threatens to delay 

resolution of the claims pending between the original parties. See Sierra Club, 308 F.R.D. at 13. 

Even assuming, therefore, that movants’ have a “claim or defense” in common with the original 

action, as a matter of this Court’s discretion, their motions for permissive intervention will be 

denied. 

CONCLUSION

For the foregoing reasons, movants’ motions to intervene will be denied. A separate Order 

has issued on this date. 

 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: November 18, 2016

 8 North Dakota also invokes Rule 24(b)(2), which allows for permissive intervention by state officers or 

agencies where “a party’s claim or defense is based on” a statute, executive order, or regulation administered by that 

officer or agency. See North Dakota’s Mot. to Intervene at 26. Trying to squeeze into that rule’s ambit, North Dakota

argues that it has an interest in defending the “validity of its own statutes and regulations, which, if Plaintiffs are 

successful, would be subject to revision by EPA.” Id. But, like the validity of federal regulations, the validity of 

North Dakota’s regulations is not currently before the Court. There is little need, therefore, for North Dakota’s input 

on that subject. And North Dakota does not administer the provisions of federal law that are at issue here.