Ninth Circuit: Citizen Group Cannot Sue to Force State Greenhouse Gas Regulation

svendbeGuest Commentary

by Svend Brandt-Erichsen, Marten Law PLLC*

A U.S. Court of Appeals for the Ninth Circuit panel ruled last month in Washington Environmental Council v. Bellon that environmental plaintiffs do not have standing to bring a citizen suit under the federal Clean Air Act to force state agencies to regulate greenhouse gas (GHG) emissions from five oil refineries in the State of Washington.  The district court had granted summary judgment to the environmental groups, holding that air agencies were required to regulate GHG emissions under a Washington regulation that requires existing sources to employ reasonably available control technology (RACT).

On appeal, the Ninth Circuit concluded that the environmental groups had not established standing to pursue their claims.  Applying the federal three-part standing test, the court assumed (without deciding) that the environmental groups had shown injury-in-fact from GHG emissions due to climate change, but concluded that they had failed to establish a causal link between GHG emissions from the five refineries and the claimed climate change injuries, or that a court order requiring regulation of the refineries’ GHG emissions would redress their claimed injuries.  A Ninth Circuit vote on whether the panel’s decision should be reviewed en banc is pending.

To establish the first standing element (injury-in-fact), members of the environmental groups had submitted declarations attesting to recreational, aesthetic, and economic injuries that they have experienced and attribute to climate change impacts in Washington.  The Ninth Circuit panel stated that it would assume, without deciding, that the declarations provided the sort of evidence of immediate and concrete injuries necessary to satisfy the first standing element of injury-in-fact. Continue reading “Ninth Circuit: Citizen Group Cannot Sue to Force State Greenhouse Gas Regulation”

High Stakes in High Court’s Review Today of State Attorney General’s CAFA Circumvention

mississippiThe justices of the U.S. Supreme Court welcomed Mississippi today, in the person of Attorney-General Jim Hood, who was the “named plaintiff” in Mississippi ex rel Hood v. AU Optronics.  Hood claims that he, standing in the shoes of the state, is the only actual plaintiff in a class action prosecuted by private contingent-fee lawyers, and thus the suit cannot be removed from state to federal court under the Class Action Fairness Act (CAFA).

WLF filed an amicus brief in support of the Respondent in AU Optronics, and The Legal Pulse’s class action expert, Frank Cruz-Alvarez, blogged on the case when the Court granted review in June.

The stakes for free enterprise in AU Optronics are substantial. A Mississippi victory would blow a gaping hole in CAFA. As the Wall Street Journal argued in an editorial today:

Mr. Hood and his trial-bar friends are trying to evade federal law by running their class-action through the AG’s office. Mr. Hood’s retention agreement with Zimmerman Reid and another firm, Abraham & Rideout, reads: ‘Assume Recovery by the State of Mississippi of a monetary, [sic] sum, benefit, or value equal to $600,000,000.00.’ Yes, $600 million.

The conflicts of interest in such arrangements are quite breathtaking. According to a recent report, for example, General Hood’s “plaintiffs’ firm contributors were all out-of-state, and they made no contributions to other candidates for statewide office in Mississippi.” In only two instances where contingent-fee law firms represented Mississippi in securities fraud class actions did the firms not make a previous contribution to General Hood’s campaign. They did so subsequently, however, according to this report.

State attorneys-general were well aware of how CAFA would curb the trial lawyer/state AG alliance. As The Journal notes, 46 attorneys-general sought a specific exemption in CAFA for suits filed on behalf of the state, but Congress defeated that amendment. AU Optronics presents state officials with a second opportunity to achieve through judicial fiat what they could not obtain eight years ago via legislation.

It’s no surprise then that 46 other states’ attorneys-general signed onto an amicus brief supporting Mississippi.