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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.