by Cliff Smith
FME Law Counsel

What do you get when you put dozens of “green”lawyers together with nothing in particular to accomplish and more money than they know what to do with?

Someone could be excused for thinking that this sounds like the start of a really bad lawyer joke. Unfortunately, it’s anything but. Lawyers for the Natural Resources Defense Council (NRDC) and their allies are actively testing this proposition. The result is a preposterous lawsuit against the railroad industry that clearly demonstrates the problem with the current state of the so-called “environmental justice”movement.

Let’s review the case: The NRDC and other local environmentalist groups sued the BNSF Railway Company and Union Pacific Railroad Company concerning their disposal of solid waste, which is regulated under the Resource Conservation and Recovery Act (RCRA). RCRA is aimed at ensuring safe disposal of solid waste. For example, it regulates things such as underground storage tanks for chemicals used in the agriculture, storage tanks for oil, and sludge from water filtration.

This seems like common sense, right? Clearly, nobody wants uncontrolled leaks of pesticides, oil, filtered sludge or other such hazardous material into the ground. And NRDC must have had a reason to suspect the railroad companies were recklessly flouting the law, right?

Well, actually, no. Instead, NRDC & Co. were suing the railroads under RCRA over the emissions of diesel-related particles into the air in their rail yards.   Yes, you read that right. They think airborne emissions from diesel engines are “disposing solid waste.”That’s a bit of a stretch, to put it mildly.

But wait, we have a Clean Air Act (CAA) that governs things like this, right? Yes, we do. Common sense would seem to suggest that, if the NRDC has a concern with diesel emissions, they should sue under the CAA. However, this presents a problem for the NRDC. The CAA only allows for so-called “citizen suits”pursuant to regulations the EPA has already passed, and the EPA specifically hadn’t regulated such emissions. Why haven’t they regulated such emissions? Because they represent very small amount of pollution that is unlikely to cause problems and is difficult to regulate effectively without imposing unacceptable costs.

Unlike CAA, RCRA allows for a wider breath for citizen suits. But understandably, a statute dealing with disposal of solid waste has no regulation concerning diesel emissions. However, RCRA allows for citizen suits against anyone who may present an “imminent danger”to the environment, even if the EPA hasn’t crafted a specific regulation. This vague standard let the NRDC get into court, even though the statutory language, legal reasoning, and simple common sense, would clearly indicate RCRA simply had nothing to do with diesel emissions.

This ridiculous lawsuit was dismissed at the trial court level, but was promptly appealed by NRDC. Luckily, even the activists on the Ninth Circuit Court of Appeals quickly agreed with the trial court and found that “defendants’ emission of diesel particulate matter did not constitute ‘disposal’ of solid waste,”under the RCRA. However, the issue remains, why was such a clearly frivolous lawsuit filed in the first place?

The chief problem is that the modern “green”movement is extremely aggressive, well-funded, and almost totally detached to any real-world concern or balancing of any interest. They are monolithically concerned with a very narrow definition of environmentalism not as a means of “protecting the environment” but as a way to create raw power and wealth. As detailed by a recent report from the Senate Environment and Public Works Committee, there are a very few billionaires who have an overwhelmingly disproportionate influence in funding various left-wing environmentalist groups. These people generally benefit financially from overregulation, and cloak their profit-seeking behavior in nice-sounding but hollow promises of making things “green,”regardless of the societal costs associated with it or however remote or speculative the so-called environmental benefit may be.

With this kind of funding base and an incredibly narrow mission, green groups like the NRDC are free to cook up any crazy lawsuit they can come up with and ride it for all its worth.   If it works, great! They get to claim a victory, and often get attorney fees and court costs at taxpayer expense, and continue pushing for whatever other regulations they desire. If it doesn’t work, so what? They have more than enough money to sit around and dream up a similar scheme. If you throw enough things against the wall, something is bound to stick.


Nobody wants dangerous pollution to run rampant, but everything has a cost associated with it, and both the benefits and the costs should be considered concerning every regulatory action. Presidents, Congressman, and to some degree, even EPA officials deal with this reality all the time. However, groups like the NRDC are unencumbered by such real world concerns. Their only incentive is to push regulation to its most destructive extreme and laugh all the way to the bank. This is disastrous, not only for the economy, but in the long run, for public health and the environment as well.