Last month, the 9th U.S. Circuit Court of Appeals declined to re-hear en banc a decision handed down last October by a three-judge panel, thereby leaving in place a decision that could be a major hurdle for plaintiffs in future environmental lawsuits aimed at reducing climate change.
In Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), the Washington Environmental Council and the Sierra Club brought a citizens' suit against state agencies responsible for implementing the Clean Air Act (CAA), seeking to compel the agencies to regulate greenhouse gas emissions from Washington state's five oil refineries. The groups alleged that the state agencies had failed to enforce the state's CAA implementation plan, which requires the agencies to define reasonably available control technologies (RACT) for greenhouse gases and to apply RACT standards to oil refineries. The district court held, and the 9th Circuit affirmed, that the groups did not have standing to compel the state agencies to issue oil refinery regulations.
Standing is a constitutional prerequisite to seeking judicial relief for an alleged injury in federal court. In order to have standing, a plaintiff must show that he or she has suffered an injury, that the injury is caused by the defendant's actions, and that the injury will likely be redressed if the court grants the requested relief. The three judges on the 9th Circuit panel found that, as a result of climate change, the environmental plaintiffs had suffered a variety of injuries ranging from flooded farmlands to a diminished ability to enjoy the ski slopes of Washington state. The panel also found, however, that any link between those injuries and the failure of the state agencies to regulate greenhouse gas emissions was too attenuated to satisfy the causation element needed for standing because "a multitude of independent third parties are responsible for the changes contributing to [their) injuries."
In a strikingly contentious opinion, while a vocal minority dissented, a majority of 9th Circuit judges declined to rehear the panel's decision. Washington Environmental Council v. Bellon, 2014 DJDAR 1405 (9th Cir. Feb. 3, 2014).
Agreeing with the majority, and defending the panel decision which he had originally authored, Judge Milan D. Smith penned a concurrence essentially stating that the 9th Circuit panel had merely followed Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), a U.S. Supreme Court case discussing the standard for standing when private groups seek to compel state agencies to regulate third parties such as oil companies. Specifically, Smith stated that, under Lujan, the plaintiff groups were required to show both that injunctive relief would cause the state agencies to promulgate new regulations in the groups' favor and that the new regulations would actually cause the oil companies to change their conduct in a manner that would redress the plaintiffs' injuries.
In order to do so, Smith said the plaintiffs needed to produce evidence in support of four hard-to- prove facts: (1) that the state agencies would promulgate emission standards that demand cleaner technology than the oil companies already use; (2) that the oil companies would comply with the new standards; (3) that the oil companies' compliance would reduce greenhouse gas emissions; and (4) that the lower emissions would mitigate global climate change.
Notably, Smith's concurrence distinguished the facts from those in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), in which the Supreme Court, after applying a more lenient standing standard, held that the state of Massachusetts had standing to sue the Environmental Protection Agency to compel the it to promulgate CAA regulations of greenhouse gas emissions from motor vehicles. Smith stressed two reasons why use of a more stringent standing standard than that used in Massachusetts was appropriate. First, Massachusetts had brought a procedural claim seeking the EPA's reconsideration of a rulemaking petition under the CAA, whereas the Washington Environmental Council and the Sierra Club had brought a substantive claim for an injunction seeking to compel the promulgation of regulations. A litigant bringing a procedural claim, unlike one bringing a substantive claim, need not show that receiving the requested procedure will necessarily change any substantive result. Second, Massachusetts is a sovereign state that has a special interest in the condition of its environmental resources, while the environmental groups in this case were private individuals.
In a passionate dissent joined by two other judges, Judge Ronald M. Gould wrote that, in holding that the plaintiffs lacked standing, the panel had misapplied Massachusetts to "essentially read private citizens out of the equation when it comes to using courts to address global warming." In doing so, he argued, the decision prevents citizens from urging their states to take corrective action against global warming and "relegates judges - and the general public - to the sidelines as climate change progresses." Gould interpreted Massachusetts to be a Supreme Court endorsement of the principle that individuals seeking to induce state action to protect the environment have standing to do so, just as the plaintiffs in this case had.
While a refusal to rehear a panel decision holds no legal precedence, in this instance, at least in the 9th Circuit, it shores up an onerous standard that applies to plaintiffs seeking to compel public agency regulation of third parties under the CAA and other 'environmental laws. This means that, in future suits raising a substantive challenge, environmental groups will likely have to overcome the significant burden associated with. Proving (1) that an agency's failure to regulate a third party has caused climate change, (2) that, if the agency does regulate the third party, the third party will follow the law, and (3) that the third party's following of the law will actually mitigate climate change.
Environmentalists seeking to continue the fight against climate change will no doubt cite to Gould's strong dissent, which, at a minimum, indicates that at least three judges on the 9th Circuit believe lawsuits aimed at curtailing greenhouse gas emissions are a matter of exceptional public importance that should not require meeting the high standing standard set by the 9th Circuit panel.