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Clean Air Act: Ninth Circuit Tosses Citizen Suit Seeking to Force State and Local Air Agencies to Regulate Greenhouse Gases

October 27, 2013

The Ninth Circuit ruled earlier this month that environmental plaintiffs do not have standing to bring a citizen suit under the Clean Air Act to force state agencies to regulate greenhouse gas (GHG) emissions from five oil refineries in the State of Washington.[1] Applying the three-part standing test derived from Article III of the Constitution, the court assumed (without deciding) that the environmental groups had shown injury in fact from GHG emissions due to climate change, but then concluded that they had failed to establish a causal link between GHG emissions from the five refineries and the claimed climate change injuries. The court also found that the plaintiffs had failed to show that a court order requiring regulation of the refineries’ GHG emissions would redress the claimed injuries.[2]

Background

Two environmental groups — the Washington Environmental Council (WEC) and the Sierra Club — filed suit in federal district court under the citizen suit provisions of the federal Clean Air Act[3] against the directors of the Washington Department of Ecology and two of Washington’s local air agencies (Northwest Clean Air Agency[4] and Puget Sound Clean Air Agency) (collectively, the “Air Agencies”) to compel the Air Agencies to regulate GHG emissions from the five existing refineries in Washington State. Western States Petroleum Association (WSPA) intervened on behalf of the refineries, which are members of that organization.

The environmental groups asserted that the Air Agencies’ failure to impose limits on GHG emissions from the refineries violated two provisions of Washington’s State Implementation Plan (SIP). Once a SIP is approved by the Environmental Protection Agency, it becomes federally enforceable under the Clean Air Act.[5] However, the Air Agencies disputed whether the SIP is federally enforceable beyond a specific set of air pollutants, which do not include GHGs. The District Court granted summary judgment to the environmental groups on one of their claims: that a provision of Washington’s SIP that requires existing sources to employ reasonably available control technology (RACT) applies to GHG emissions.[6] The District Court ordered the Air Agencies to develop RACT standards for the five refineries’ GHG emissions. Cross appeals were filed by all parties. On October 17, 2013, the Ninth Circuit concluded in WEC v. Bellon that the environmental groups had not established standing to pursue their claims, and so vacated the district court’s order and remanded with instructions to dismiss the case for lack of subject matter jurisdiction.[7]

Standing, GHG Emissions, and Federal Court Jurisdiction

Standing is a threshold jurisdictional question for the federal courts, deriving from the “case or controversy” requirement of Article III of the United States Constitution.[8] The U.S. Supreme Court has recognized three “irreducible constitutional minimum” requirements that a plaintiff must meet to have standing to pursue a claim in federal court: (1) the claimant must suffer injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.[9]

Standing has proved to be a difficult question for law suits seeking to limit man-made GHG emissions because GHGs are unlike other air pollutants. Emissions of other air pollutants are regulated because they elevate concentrations of the pollutant in the immediate vicinity of the stack (or downwind), thereby degrading air quality in a specific area. But while it is now generally accepted that man-made emissions have elevated GHG levels in the globe’s atmosphere and that those elevated levels have begun to trigger climate changes, it is exactly this dispersion across the globe that gives rise to the concern. GHG emissions have not been linked to the same sort of localized impacts as other air pollutants. This distinction has resulted in the standing question being an important threshold for GHG litigation.

Before making its historic pronouncement in Massachusetts v. EPA that GHGs are an “air pollutant” within the meaning of the Clean Air Act,[10] the U.S. Supreme Court first had to determine whether any of the plaintiffs in that case had standing. The majority in Massachusetts began its standing analysis by noting two special aspects of the claims at issue in that case: (1) a claimant has standing to assert a procedural right if there is some possibility that the requested relief will prompt a reconsideration that could avoid the claimed injury, and the Clean Air Act provides a procedural right to challenge EPA’s rejection of the sort of rulemaking petition that was at issue in that case;[11] and (2) states are different from private litigants –the Court historically has recognized that the quasi-sovereign powers of states give them a “special solicitude” to pursue their cases in federal court on behalf of their citizens.[12] Based upon the procedural nature of the claim and “Massachusetts’ stake in protecting its quasi-sovereign interests”, the Court determined that EPA’s refusal to regulate GHG emissions placed Massachusetts at risk of suffering climate-related injuries, and that a favorable ruling could prompt EPA to take action to reduce that risk.[13]

The Court’s majority opinion then applied the traditional three-part standing test, taking Massachusetts’ status into account. With respect to concrete harm/injury, the Court found that Massachusetts had demonstrated that its coastal lands were being impacted by rising seas.[14] As to causation, the Court noted that EPA did not dispute the connection between man-made GHG emissions and global warming, and held that U.S. motor vehicle emissions make a meaningful contribution to global GHG concentrations.[15] With respect to redressability, the Court stated that the relief sought by Massachusetts – regulation of GHG emissions from new motor vehicles – need not relieve every injury suffered. Rather, the majority concluded that it is enough that the relief sought would at least reduce the risk by slowing the pace of GHG emissions.[16]

Four justices dissented on the standing question. They objected to the apparent relaxation of standing requirements for a state.[17] They also questioned the majority’s conclusion that standing’s causation and redressability elements had been satisfied. The dissent challenged the notion that the vehicle emissions in question materially contribute to global GHG emissions and deemed the linkage to loss of Massachusetts’ coastal land too speculative to establish causation.[18] As to redressability, the dissent argued that any reduction in U.S. vehicle emissions was likely to be overwhelmed by increased GHG emissions in other countries, thus preventing redress of the loss of coastal lands.[19] Nevertheless, since a majority found that among the plaintiffs at least Massachusetts had standing, the Supreme Court proceeded to consider the merits of the case, ultimately concluding that carbon dioxide and other GHGs are air pollutants, and as a result EPA was obligated by the Clean Air Act to decide whether GHG emissions from motor vehicles cause or contribute to injuries to human health and welfare through climate change.[20]

In American Electric Power Company v. Connecticut[21] (“AEP”) the U.S. Supreme Court once again considered the claimants’ standing to assert GHG-based claims. In AEP, eight states and other parties brought suit against four private electric utilities and the Tennessee Valley Authority alleging that the GHG emissions from the utilities’ power plants constituted a public nuisance under the federal common law. In 2005, the district court for the Southern District of New York dismissed the lawsuit, ruling that it presented a non-justiciable political question.[22] The Second Circuit reversed in 2009, holding that the claims had political implications, but were nonetheless justiciable in the federal courts.[23] The Second Circuit also ruled that the plaintiffs had standing, following the analysis in Massachusetts.[24]

The Supreme Court began its consideration of the case with the question of standing. Justice Sotomayor recused herself and the rest of the Court was evenly split on the standing question, which resulted in affirmation of the Second Circuit’s determination that the plaintiffs had standing.[25] Four justices would have followed the majority in Massachusetts in holding that at least some of the plaintiffs (the states) had standing, while the other four would have followed the dissent in Massachusetts or found that decision distinguishable and would have held that none of the plaintiffs had standing.[26] Standing having been established, the Court went on to consider the merits and proceeded to dismiss the suit on grounds that any common law public nuisance claims seeking to abate GHG emissions from power plants had been displaced by Congressional enactment of the Clean Air Act.[27]

While AEP was working its way up to the Supreme Court, a case asserting public nuisance claims against emitters of GHGs also was advancing in the Ninth Circuit. In Native Village of Kivalina v. ExxonMobil[28] the small town of Kivalina, located on the Chukchi Sea in Northwestern Alaska, alleged that GHG emissions attributable to 22 oil, energy, and utility companies have exacerbated global warming and thereby exposed the village to rising sea levels and flooding. The Ninth Circuit decided Kivalina after the Supreme Court issued its decision in AEP. Accordingly, the Ninth Circuit followed AEP in concluding that the village’s public nuisance claims were precluded because the federal common law had been displaced by adoption of the federal Clean Air Act.[29]

The majority in Kivalina did not address the question of standing. However, a concurring opinion did delve into the issue, and concluded that the plaintiff could not trace its injuries to specific emitters of GHGs – even though the 22 defendants collectively represent millions of tons of annual GHG emissions.[30] The concurring opinion’s analysis focused on allegations in the village’s complaint that climate change is “the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere.”[31] Given these facts, the concurring opinion concluded that the plaintiff could not trace its claimed injury to the defendants’ GHG emissions.[32]

The Ninth Circuit’s Decision in WEC

In WEC, the Ninth Circuit’s deliberations proceeded no farther than the threshold standing question. Applying the three-part standing test, the court assumed that the plaintiff environmental groups had established injury but concluded that they had failed to establish causation or redressability.[33]

WEC and Sierra Club members submitted declarations attesting to recreational, aesthetic and economic injuries that they have experienced and that they attribute to climate change impacts in the State of Washington.[34] 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.[35]

The court held, however, 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.[36] 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.[37] 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.[38] The court then added, citing the reasoning of the concurring opinion in Kivalina, that a multitude of emitters worldwide have contributed to the plaintiff environmental groups’ injuries.[39] The court found the resulting causal chain “too tenuous to support standing.”[40]

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 SIP 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.[41] The court also rejected the environmental groups’ reliance on Massachusetts v. EPA, holding that neither of the features that the Supreme Court 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.[42] 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.[43]

Turning to redressability, the court observed that this element of the standing test analyzes the connection between the alleged injury and the requested judicial relief.[44] 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.[45] It further observed that, even assuming that 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.”[46] 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.[47] The court said this was an unwarranted application of the relaxed standing requirements for sovereign states carved out in the Massachusetts case.[48]

Conclusion

While potentially significant, it remains to be seen how the holdings in WEC will play out over future cases. Regardless, the case highlights the difficulty of seeking to use the federal courts to address global phenomena like GHG emissions and climate change.

For more information concerning WEC v. Bellon or other air quality matters, please contact any member of Marten Law’s Air Quality practice.

[1] Washington Envtl. Council v. Bellon, __ F.3d__, 2013 WL 5646060 (9th Cir. October 17, 2013) (“WEC”).

[2] Id.

[3] 42 U.S.C. § 7604(a)(1).

[4] Marten Law and the author of this article have represented Northwest Clean Air Agency in the WEC case in the district court and on appeal.

[5] Safe Air for Everyone v. EPA, 488 F.3d 1088, 1091 (9th Cir. 2007).

[6] Washington Envtl. Council v. Sturdevant, 834 F.Supp.2d 1209 (W.D.Wn. 2011).

[7] WEC, 2013 WL 5646060 at *13.

[8] Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000).

[9] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[10] 549 U.S. 497, 127 S.Ct. 1438 (2007).

[11] 549 U.S. at 517-18.

[12] 549 U.S. at 518-520.

[13] 549 U.S. at 521.

[14] 549 U.S. at 522-23.

[15] 549 U.S. at 523-25.

[16] 549 U.S. at 525-26.

[17] 549 U.S. at 536-540.

[18] 549 U.S. at 543-45.

[19] 549 U.S. at 545-46.

[20] 549 U.S. at 535.

[21] __ U.S. __, 131 S.Ct. 2527 (2011).

[22] Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).

[23] 582 F.3d 309 (2nd Cir. 2009); see Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed, Marten Law Environmental News (Sept. 23, 2009).

[24] 582 F.3d at 349.

[25] 131 S.Ct. at 2535.

[26] Id.

[27] 131 S.Ct. at 2537-38.

[28] 696 F.3d 849 (9th Cir. 2012).

[29] 696 F.3d at 858.

[30] 696 F.3d at 868-69.

[31] 696 F.3d at 868.

[32] 696 F.3d at 868-69.

[33] WEC, 2013 WL 5646060.

[34] 2013 WL 5646060 at *6-*7.

[35] Id. at *8.

[36] Id.

[37] Id. at *9.

[38] Citing Barnes v. U.S. Dept. of Transportation, 655 F.3d 1124, 1140 (9th Cir. 2011).

[39] 2013 WL 5646060 at *9.

[40] Id.

[41] Id. at *10.

[42] Id. at *10-*11.

[43] 2013 WL 5646060 at *11.

[44] Id. at *12.

[45] Id.

[46] Id.

[47] Id.

[48] 2013 WL 5646060 at *12.

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