High Court Upholds RCRA Imminent and Substantial Endangerment Test

November 16, 2007
by ADAM CUTLER
Client Alert Newsletter November 2007

On October 1, the U.S. Supreme Court declined to review, without opinion, a First Circuit ruling holding that even "a reasonable prospect that a serious, near-term threat to human health or the environment" can support a citizen suit claim under the Resource Conservation and Recovery Act ("RCRA"). In Mallinckrodt v. Maine People's Alliance, the First Circuit reasoned that Mallinckrodt's past deposits of mercury into a river, dating back more than thirty years, amounted to an "imminent and substantial endangerment" to people and the environment because the combination of the word "may" with "endanger" in RCRA's citizen suit provision compelled the conclusion that the mere reasonable prospect of future harm—if the threat is near-term and involves potential serious harm—is sufficient to give rise to a RCRA citizen suit claim. The First Circuit's reading of RCRA’s citizen suit provision is in harmony with that of other federal circuit courts, including the Second, Third, Fifth and Eleventh Circuits.