On October 17, 2013, the Ninth Circuit ruled that it lacked jurisdiction to consider a challenge to Washington’s failure to regulate greenhouse gas (GHG) emissions from the state’s five oil refineries under the Clean Air Act. This decision is an important precedent on the issue of standing where plaintiffs allege climate change-related injuries as the basis for a lawsuit.
In Washington Environmental Council v. Bellon, several environmental organizations brought suit against the State of Washington under the Clean Air Act claiming that Washington failed to define emissions limits, termed “reasonably available control technology” (RACT), for GHGs and failed to apply the limits to the State’s oil refineries. The district court awarded the organizations summary judgment on their RACT claim. Washington and the Western States Petroleum Association (WSPA), which intervened as a defendant, appealed the decision. On appeal, WSPA raised a new defense – that the organizations lacked standing. WSPA claimed that the organizations could not demonstrate causality, arguing that there was no plausible scientific evidence that the emissions from the oil refineries were the source of their injuries. Slip Op. at 13.
The Ninth Circuit reviewed the causality issues without delving into whether climate change in general produced adverse environmental impacts, stating “[w]e assume without deciding that man-made sources of GHG emissions are causally linked to global warming and detrimental climate change.” Slip Op. at 20. Instead, the court focused on whether there was a causal connection between the organizations’ alleged injuries and Washington’s failure to set and apply RACT standards. The court found that the causal link was too attenuated given the lack of scientific evidence showing that the refineries’ emissions were the source of the alleged injuries. Id. at 21 (“Plaintiffs’ causal chain—from lack of RACT controls to Plaintiffs’ injuries—consists of a series of links strung together by conclusory, generalized statements of ‘contribution,’ without any plausible scientific or other evidentiary basis that the refineries’ emissions are the source of their injuries.”).
The Ninth Circuit distinguished its decision from the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), holding that relaxed standing requirements were not appropriate. Slip Op. at 25. In doing so, the court recognized that the plaintiffs consisted of private organizations, not a sovereign state, and therefore were not entitled to the “special solicitude” extended to Massachusetts by the Supreme Court. Id. at 26. The court also noted that the GHG emission levels at issue in Massachusetts were a “meaningful contribution” to global GHG concentrations (6% of world-wide carbon dioxide emissions), whereas the emissions in the case before it did not even constitute 6% of Washington emissions. Id. at 27. Thus, the court found that Massachusetts did not control. Id.
The court’s reasoning is not limited to the specific facts of the case before it, but instead will be widely applicable to cases where local climate change-based injuries are alleged. This is so because “there is a natural disjunction between. . . localized injuries and the greenhouse effect.” Id. at 22. As the court noted, “there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain GHG emission source and localized climate impacts in a given region.” Id. Additionally, given the “multitude of independent third parties” that are responsible for emissions contributing to global climate change, the court noted it could not conclude that the organizations’ local injuries were fairly traceable to the emissions of the State’s oil refineries. Id. at 23–24. Though the Ninth Circuit does not completely rule out the possibility that certain plaintiffs could maintain a suit based on local climate-change injuries, it strongly suggests that it lacks jurisdiction over many such suits at this time.
An en banc petition is highly likely in this case given the implications of the Ninth Circuit’s ruling. Thus, this case bears further monitoring.