The US Court of Appeals for the District of Columbia Circuit issued an order in Environmental Integrity Project v Pruitt rejecting North Dakota's bid to intervene to oppose an Environmental Protection Agency (EPA) settlement. In 2015 the environmental groups sued the EPA in district court, alleging that the EPA had failed to undertake non-discretionary statutory duties periodically to review and, if necessary, revise its Resource Conservation and Recovery Act solid waste rules for wastewater, drill cuttings, residual waste and drilling muds associated with oil and gas exploration and production.

In a 2016 consent decree, the EPA committed to determining whether to revise the Resource Conservation and Recovery Act's Subtitle D rules for oil and gas waste by March 15 2019 and to finalise any updates that the agency decides to develop by 2021. North Dakota sought to intervene in that proceeding in order to oppose the consent decree, but the district court denied the motion. North Dakota appealed, arguing that as a state it was entitled to "special solicitude" to challenge a settlement. The appeals court disagreed, holding that the possibility of potentially adverse regulation is not an injury that confers standing, even to a state. In so holding, the court reaffirmed its previous rulings that a stakeholder cannot challenge a settlement establishing a deadline for an agency to decide whether to promulgate a rule.

For further information on this topic please contact Samuel B Boxerman, Terence T Healey or Kenneth W Irvin at Sidley Austin LLP office by telephone (+1 202 736 8000) or email (, or The Sidley Austin LLP website can be accessed at

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