West Virginia Surface Owners’ Rights Organization v. Zeldin

Petitioners filed an opening brief in the Fourth Circuit Court of Appeals arguing that the court should vacate the U.S. Environmental Protection Agency’s (EPA’s) decision approving the State of West Virginia’s application for primary enforcement authority for Class VI Underground Injection Control Wells under the Safe Drinking Water Act (SDWA). EPA’s approval gave the State regulatory authority over carbon sequestration wells. The petitioners argued that EPA’s determination that the State would implement the Class VI program consistently with the federal program was arbitrary, capricious, and otherwise not in accordance with law “because EPA failed to grapple with record evidence that West Virginia had failed to effectively implement at least three similar federal environmental programs.” In addition, the plaintiffs argued that EPA’s approval violated the SDWA because the State’s program was not “at least as stringent” as the federal regulations.