Covington
Covington v. Jefferson County
Opinion
Lead Opinion
Gould, J.
Opinion by Judge GOULD; Concurrence by Judge GOULD.
The Covingtons, who live across from a county dump, brought this citizen’s suit against Jefferson County and District 7 Health Department (“D7HD”), charging violations of the Clean Air Act (“CAA.”) and the Resource Conservation and Recovery Act (“RCRA” a.k.a. the Solid Waste Disposal Act (“SWDA”)). On cross-motions for summary judgment, the district court held that the Covingtons lacked standing to advance the CAA claim and had standing to assert the RCRA claims. The district court awarded summary judgment on these RCRA claims to Defendants. The parties cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for trial.
I
A
This dispute centers on a landfill directly across the street from the home of the Covingtons. When the Covingtons first bought their home, it was across the street from a gravel pit. In 1995 Jefferson County converted the gravel pit to a non-municipal solid waste landfill (“NMSWL”) for bulky waste. Jefferson County owned and operated the landfill at all relevant times. The landfill operation was approved initially and then overseen by District 7…
Concurring Opinion
Gould, J.
concurring:
As a court we need not today reach any further conclusion on standing beyond that in Part III.B. However, there is an additional theory under which I believe the Covingtons may have standing to advance their Clean Air Act (“CAA”) claims based on ozone degradation. I feel it appropriate to set forth this theory because of its potential application in any other cases where widespread or even global environmental impact is threatened by a federal statutory wrong.
It is beyond doubt that the release of CFCs degrades the stratospheric ozone layer. See David W. Fahey, Twenty Questions and Answers About the Ozone Layer in Scientific Assessment of Ozone Depletion: 2002, Global Ozone Research and Monitoring Projec —Report No. 47, 498 pp., Geneva, 2003, Q.8-Q.10, now available at http:// www.unep.org/ozone/pdf/11-qa. pdf (hereinafter “Twenty Questions”). 2 Some of the CFCs improperly released by the landfill will enter the stratospheric ozone layer and allow more UV radiation to reach the surface of the Earth. Id. at Q.8-Q.9.
Depending on the type of CFC released, the improperly released gas will have an atmospheric lifetime of 45 to 100 years. 3 Id. at Q.11. In that…