AG Seal
 Last week, the U.S. Court of Appeals for the D.C. Circuit ordered the dismissal of a longstanding lawsuit challenging Oklahoma’s program regulating the disposal of coal ash.
In Waterkeeper Alliance v. Regan, the D.C. Circuit held unanimously that the advocacy groups bringing the suit lacked standing to challenge Oklahoma’s environmental program, in part because certain claims “fall short of even speculation” and because Oklahoma’s program provides for greater public participation than the federal program.
“From the beginning, this lawsuit was a political exercise with little basis in law,” said Attorney General John O’Connor.
“The district court found no real problem, and now the D.C. Circuit has held that the case should have never been allowed in the first place. Oklahoma is grateful for that decision. Court battles like this can take years, unfortunately, but defending Oklahoma’s interests is always worth it.”
As the D.C. Circuit explained, coal ash is a potentially dangerous waste produced by coal-fired power plants that must be disposed of properly to avoid environmental and personal harm. In 2015 the Environmental Protection Agency (EPA) established federal standards for properly disposing coal ash.
States are also currently allowed to develop their own programs and submit them to the EPA for approval. Oklahoma took this latter path, obtaining EPA approval in 2018 of an Oklahoma-specific disposal program for coal ash.
To read the D.C. Circuit’s opinion, click here:
The read the Oklahoma Office of the Attorney General’s primary brief on appeal, click here:
Background Of The Case
Three advocacy groups sued the EPA in 2018, challenging its approval of Oklahoma’s environmental program. Soon after, the Oklahoma Attorney General’s Office intervened on behalf of the State of Oklahoma and the Oklahoma Department of Environmental Quality (DEQ).
In 2020, a federal district court granted summary judgment to the EPA and Oklahoma on all but one of the advocacy group’s claims.
The recent decision vacated that summary judgment decision -- finding that the case should never have been allowed to proceed at all because the plaintiff advocacy groups lacked standing.
“[P]laintiffs concede that the 2015 [EPA] Rule affords fewer public-participation opportunities than the Oklahoma Program,” the D.C. Circuit wrote.
“So, if anything, EPA’s approval of the Oklahoma Program increased plaintiffs’ members’ opportunities to participate in local decisions involving coal ash disposal.”
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