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.
Regarding the second element (causation), the panel held that the causal chain laid out by the environmental groups was conclusory and relied on generalized statements of the refineries’ contribution to atmospheric GHG concentrations and their claimed injuries, and that this did not satisfy the evidentiary burden for showing causality. The court added that the disjunction between the groups’ localized injuries and the cumulative effect of aggregated GHG emissions across the globe made it particularly challenging to establish a causal nexus. It noted that in a prior case, which involved the adequacy of the NEPA review of a proposed runway project, the Ninth Circuit had commented that the causal chain between GHG emissions and localized environmental harm is untenable. The court added that, since a multitude of emitters worldwide have contributed to the plaintiff environmental groups’ injuries, the resulting causal chain is “too tenuous to support standing.”
The court rejected the environmental groups’ argument that a causal connection may be inferred between failure to regulate and environmental injury when there is statutory direction to develop GHG regulations (without deciding whether the Washington State Implementation Plan actually imposes such a mandate). The court said that the connection still must be made between the inferred injury to the environment and the injury claimed by the plaintiffs, and that the environmental groups had not shown that their specific injuries are fairly traceable to the failure to set RACT standards for GHG emissions from the refineries. The court also rejected the environmental groups’ reliance on the U.S. Supreme Court’s decision in Massachusetts v. EPA, holding that neither of the features that the Supreme Court had relied upon to relax standing requirements in Massachusetts were present in the WEC case, as WEC neither implicated a procedural right nor involved a sovereign state. It also held that, even if standing requirements were relaxed, causation still could not be established here because—unlike the combined U.S. vehicle emissions at issue in Massachusetts—the GHG emissions from the Washington refineries do not make a “meaningful contribution” to global GHG levels.
The court observed that the third element of the standing test (redressability) analyzes the connection between the plaintiffs’ alleged injury and the requested judicial relief. The court found no evidence in the record that the GHG RACT standard sought by the environmental groups would curb a significant amount of GHG emissions. It further observed that, even assuming all GHG emissions from the refineries could be eliminated, there still was no evidence that an injunction requiring RACT controls on GHG emissions would be likely to reduce the pollution causing the environmental groups’ claimed injuries. To the contrary, the court concluded that the injuries are likely to continue unabated because the refineries’ effect on global climate change is “scientifically indiscernible.” Finally, the court rejected the environmental groups’ argument that based on Massachusetts they need not show that GHG emissions would be reduced by some specific amount, but rather need only show that the regulations they seek are expected to result in some control of GHG emissions. The court said this was an unwarranted application of the relaxed standing requirements for sovereign states carved out in the Massachusetts case.
While potentially significant, the full implications of the WEC decision will remain uncertain until the Court decides whether to rehear the matter en banc. Regardless, the case highlights the difficulty of seeking to use the federal courts to address global phenomena like GHG emissions and climate change.
*Svend Brandt-Erichsen is a partner in the Seattle office of Marten Law PLLC. He represents one of the local air agency defendants, Northwest Clean Air Agency, in the Washington Environmental Council case.