The production of oil and gas generates waste; that much seems beyond dispute. What is presently in dispute in the United States District Court for the District of Columbia, however, is the extent to which the United States has met the rulemaking requirements for regulating that waste under the Resource Conservation and Recovery Act (“RCRA”).  In Environmental Integrity Project et al. v. McCarthy, No. 1:16-cv-842, which was filed on May 4, 2016, a variety of environmental organizations allege that the United States has been woefully deficient. The plaintiffs allege that RCRA requires  the United States, in the form of the Environmental Protection Agency (“EPA”), to review not only its own regulations but also state solid waste management plans every three years. According to the plaintiffs, the EPA is 25 years out of compliance with respect to the former and 32 years out of compliance with respect to the latter.

Plaintiffs’ remedy would appear fairly hollow at first glance: an order requiring the EPA to undertake a review of its own regulations and state solid waste management plans, at the end of which EPA could seemingly conclude that no updates or revisions are required. Nonetheless, the plaintiffs’ complaint hints at what is perhaps their larger goal: forcing the EPA to revisit its 1988 determination that oil and gas wastes do not require regulation under Subtitle C of RCRA. Regardless of plaintiffs’ actual intentions, Environmental Integrity Project is a case to watch for its potential to upend the current regulation of waste generated from the production of oil and gas waste.

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