Ninth Circuit Rules That Plaintiffs Lack Standing To Compel State Agencies To Regulate Greenhouse Gas Emissions

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In a case seeking to compel the Washington State Department of Ecology and two regional agencies in the State of Washington to regulate greenhouse gases under the Clean Air Act, the Ninth Circuit ruled that the environmental organizations that brought the lawsuit lacked standing to sue under Article III of the United States Constitution.  Washington Environmental Council v. Bellon (9th Cir. No. 12-35323, Oct. 17, 2013).  The court accordingly dismissed the case without reaching the merits.

The plaintiffs claimed that the agencies were obligated under two provisions of Washington’s Clean Air Act “State Implementation Plan” (SIP) to regulate GHG emissions from the state’s five oil refineries.  The first provision of the SIP requires all stationary sources of air emissions to use “reasonably available control technology” to limit pollution.  The second provision, known as the “Narrative Standard,” prohibits the emission of any air contaminants from any source if the emission is detrimental to public health, safety or welfare.

The First Standing Prong - Injury in Fact. The court assumed without deciding that the plaintiffs had adequately shown “injury in fact” to satisfy the first prerequisite for constitutional standing. 

The Second Standing Prong - Causality.  The court, however, found that the chain of causality between the agencies’ failure to regulate GHG emissions and the plaintiffs’ alleged injuries was too tenuous to support standing.  According to the court, the plaintiffs offered “only vague, conclusory statements” of causation:  “While Plaintiffs need not connect each molecule to their injuries, simply saying that the Agencies have failed to curb emission of greenhouse gases, which contribute (in some undefined way and to some undefined degree) to their injuries, relies on an attenuated chain of conjecture insufficient to support standing.” 

The court recognized the difficulty of making an adequate showing of causation, in light of the multitude of sources of GHG emissions and the “limited scientific capability” of measuring the relationship between any particular source and the climate change impacts in a given locale.  But the court rejected the plaintiffs’ claim that causation should be inferred, emphasizing that the plaintiffs were required to show that their “specific, localized injuries are fairly traceable” to the agencies’ failure to set regulatory standards. 

The court also rejected the claim that the standing rules should be relaxed based on the Supreme Court’s decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).  As the court explained, in that case a sovereign state exercised a procedural right to challenge the EPA’s denial of its rulemaking petition to regulate greenhouse gas emissions from new motor vehicles.  In contrast, the court explained, “the present case neither implicates a procedural right nor involves a sovereign state.”  The court also emphasized that while the U.S. motor vehicle sector accounts for six percent of world-wide carbon dioxide emissions, here the five oil refineries at issue account for only six percent of Washington’s GHG emissions.

The Third and Final Standing Prong - Redressability.  For similar reasons, the court ruled that the plaintiffs had failed to show that their injuries would be redressed by a court order requiring the agencies to control GHG emissions from the refineries in the state.  To the contrary, the court emphasized that the evidence supported the opposite conclusion, since “it is undisputed that GHG emissions are not a localized problem endemic to Washington, but a global occurrence.”  As a result, the effect of the collective GHG emissions from the five oil refineries in the state on global climate change was “scientifically indiscernible,” and the plaintiffs injuries were “likely to continue unabated” even if the court granted their requested relief.