United States: Ninth Circuit Erects Impediment To Greenhouse Gas Citizen Suits

Last Updated: May 21 2014
Article by Shimshon Balanson
Most Read Contributor in United States, September 2019

By denying rehearing en banc in Washington Environmental Council v. Bellon (Nos. 12-35323, 12-34324, 12-35358), the Ninth Circuit has left in place a decision that may severely curb the ability of individuals and environmental groups to bring Clean Air Act citizen suits targeting greenhouse gas emissions.

In March 2011, plaintiffs Washington Environmental Council and the Sierra Club, Washington State Chapter, brought a suit against the Washington State Department of Ecology and two regional air agencies in the U.S. District Court for the Western District of Washington.

Plaintiffs alleged that under Washington's Clean Air Act State Implementation Plan ("SIP"), the agencies were obligated to regulate greenhouse gas emissions from the state's top five refineries. The Western States Petroleum Association ("WSPA"), where the five refineries were members, intervened on behalf of the agencies. The District Court awarded plaintiffs summary judgment and enjoined defendants to promulgate emission limits called "reasonably available control technology" ("RACT") by May 2014.

On appeal, WSPA argued for the first time that plaintiffs lacked Article III standing. Under Supreme Court precedent, a plaintiff must satisfy three elements to have standing to pursue a claim in federal court: (i) an injury in fact that is concrete, particularized, and actual or imminent; (ii) the injury is fairly traceable to the challenged conduct; and (iii) the injury is likely to be redressed by a favorable court decision. With respect to the first prong, the Ninth Circuit panel assumed without deciding that plaintiffs had adduced "specific facts" of immediate and concrete injuries.

Moving to the second prong, the court noted that plaintiffs were required to show that their injury was "causally linked or 'fairly traceable' to the Agencies' alleged misconduct, and not the result of misconduct of some third party not before the court." The court concluded that plaintiffs had failed to satisfy their evidentiary burden of establishing causality. According to the panel, plaintiffs offered "only vague conclusory statements" that the agencies' failure to set and apply standards for RACT at the oil refineries contributed to greenhouse gas emissions, which subsequently contributed to climate change that resulted in their injuries. The court considered this "attenuated chain of conjecture" insufficient to support standing, especially where there are numerous independent sources of greenhouse gas emissions, inside and outside the United States, that were responsible for the changes contributing to plaintiffs' injuries.

The panel also rejected plaintiffs' argument that the U.S. Supreme Court's holding in Massachusetts v. EPA, 549 U.S. 497 (2007), entitled them to relaxed standing requirements. The Ninth Circuit panel explained that relaxed standing was warranted in Massachusetts based on two factors, neither of which was present in Bellon. First, the state of Massachusetts was exercising its procedural right to challenge EPA's rejection of its rulemaking petition, and, second, Massachusetts was conferred special solicitude as a sovereign state. Plaintiffs, by contrast, were all private organizations seeking substantive relief in the form of an injunction requiring the agencies to promulgate regulations. In the panel's view, even if plaintiffs were entitled to a relaxed standing standard, plaintiffs would still be unable to establish standing because they could not show that greenhouse gas emissions from the five oil refineries in Washington did not provide a "meaningful contribution" to global greenhouse gas concentrations.

Turning to redressability, the panel stated that plaintiffs failed to satisfy that prong for many of the same reasons as it was unable to establish causation. The court also noted that the record was devoid of evidence that the relief sought by plaintiffs, the promulgation of RACT standards, would appreciably reduce greenhouse gas emissions from the refineries. Even if RACT standards eliminated all greenhouse gas emissions, the court explained, plaintiffs still could not show that the effect of the collective emissions of the oil refineries was anything but "scientifically indiscernible." Having concluded that plaintiffs had not met their burden in satisfying the requirements for standing, the panel vacated the district court's order and remanded with instructions that the action be dismissed for lack of standing.

Shortly after the Ninth Circuit panel issued its decision, a judge on the Ninth Circuit sua sponte called for a vote on rehearing en banc. A majority of the nonrecused active judges on the Ninth Circuit failed to vote in favor of rehearing. On February 3, 2014, the Ninth Circuit issued an order denying rehearing en banc. Judge Ronald Gould authored a strong dissent to the denial. Judge Gould opined that the Bellon panel had improperly interpreted and applied the Supreme Court's holding in Massachusetts. Judge Gould would find causation and redressability satisfied in environmental challenges relating to global climate change, independent of plaintiff's sovereign status, whenever "some incremental damage is sought to be avoided." Judge Gould argued that by requiring plaintiff to show that the oil refineries' emissions provided a "meaningful contribution" to global greenhouse gas concentrations, the panel imposed "on environmental organizations a mandate to show some unidentified threshold of emissions before" bringing their suit. This has the effect, according to Judge Gould, of denying standing to any non-state plaintiff seeking to enforce the Clean Air Act's provisions relating to climate change and, according to Judge Gould, interferes with the principle that "individual states can experiment on a tough problem."

Judge Milan Smith, the author of the original panel opinion, concurred in the denial of rehearing en banc. Judge Smith took umbrage with Judge Gould's characterization of Massachusetts and accused the dissent of ignoring the Supreme Court's distinctions between sovereign states and private litigants, and procedural and substantive injuries.

The Ninth Circuit's decision in Bellon represents a further constraint on the ability of environmental groups and individuals to bring suit based on alleged injuries relating to climate change. As previously discussed in the Summer 2011 issue of The Climate Report, in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), the Supreme Court held that the Clean Air Act displaced federal common law claims relating to injuries purportedly caused by climate change. A year later, as discussed in the Fall 2012 issue of The Climate Report, the Ninth Circuit, in Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), held that all claims, including claims for damages, were displaced by the Clean Air Act. Ninth Circuit and Supreme Court precedent now severely reduces the common law and statutory options available to environmental groups seeking to compel emitters to limit greenhouse gas emissions.

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