Carbon Sequestration Council v. EPA

See above in summary of petition for review for Carbon Sequestration Council v. EPA.

The D.C. Circuit Court of Appeals ruled that petitioners did not have standing to challenge EPA’s determination. EPA’s determination concerned a new class of wells—Class VI wells—established by EPA under the Safe Drinking Water Act specifically for carbon dioxide injection. The D.C. Circuit said that one petitioner—a company that captured and compressed carbon dioxide for use in enhanced oil recovery or injection in another class of well—had no plans to use the type of well governed by the challenged rule. Therefore, neither the company nor the organization of which it was a member had standing. A second organization that relied on a member for representational standing also did not have standing because its member company was not directly regulated by the challenged rule but was merely concerned that the rule portended regulation of its enhanced oil recovery operations.

The Carbon Sequestration Council, Southern Company Services, Inc., and the American Petroleum Institute filed their opening brief. They argued that Congress did not intend for EPA to assert authority over supercritical fluids or, in the alternative, that EPA’s assertion that supercritical fluids and uncontained gases were subject to RCRA was not reasonable or deserving of deference. The petitioners do not challenge the conditional exclusion of carbon dioxide as a hazardous waste under RCRA.

See below.