Wednesday, November 13, 2013

Ninth Circuit says enviros have no standing to compel state regulation of GHG emissions from oil refineries

A panel of Republican-appointed judges on the U.S. Court of Appeals for the Ninth Circuit ruled Oct. 17 that environmentalists lack standing to challenge a state's failure to invoke the Clean Air Act to regulate oil refinery greenhouse gas emissions.

The case involves an effort by environmentalists to force Washington to develop and implement technology standards that would result in the reduced GHG pollution. Washington's state implementation plan, the program for air pollution control required by the Clean Air Act, does not reach greenhouse gases.

The environmentalists won in the federal district court.

The appeals court panel's holding rests on an assertion that the plaintiffs were unable to show a link between the harm they suffer from the emissions and the industrial activities, and consequent emissions, by the regulated entities. In other words, the panel decided that there is no legally recognizable connection between the conceded emissions and the generally accepted environmental damage they do.

"[A]ttempting to establish a causal nexus in this case may be a particularly challenging task," wrote the opinion's author, Judge Milan D. Smith.
This is so because there is a natural disjunction between [p]laintiffs’ localized injuries and the greenhouse effect. Greenhouse gases, once emitted from a specific source, quickly mix and disperse in the global atmosphere and have a long atmospheric lifetime. Current research on how greenhouse gases influence global climate change has focused on the cumulative environmental effects from aggregate regional or global sources. But 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.
Smith cited a May 2008 memorandum from the director of the U.S. Geological Survey to the U.S. Fish and Wildlife Service for this conclusion.

Richard Frank, a professor of law at the University of California at Davis and an expert on environmental law, said that Smith’s point is a departure from the traditional way in which courts approach pollution problems.

The courts have pretty easily and readily dismissed the notion that one of the polluters should not be held responsible and the party could not go after one bad actor in court because of the idea that everyone is doing it,” he explained.

Janette Brimmer, an Earthjustice lawyer who represented the environmental group plaintiffs in the case, said she thought the opinion will make it harder for public interest plaintiffs to challenge regulatory inaction in court.

“There’s no doubt this decision raises the bar, and raises it pretty darn high,” she said.

Smith’s opinion relied on a narrow reading of a 2007 holding of the U.S. Supreme Court. In that case, called Massachusetts v. Environmental Protection Agency, the justices held that Massachusetts had standing to challenge EPA's failure to regulate greenhouse gases.

Smith wrote that the ability of the states in the Massachusetts v. Environmental Protection Agency case to secure standing in a challenge focused on failure to regulate rested solely on those states' status as sovereigns, a status environmentalists do not have.

This reading of the Massachusetts case, Frank said, is too narrow.

There were a lot of people that, when the Massachusetts decision was issued in 2007, thought this opened the courthouse door at least a little bit to a lot of different parties who sought to bring climate change actions,” he said.

The Supreme Court’s opinion in Massachusetts v. Environmental Protection Agency may not have even been solely premised on a state’s status as a sovereign entity within the union. The court did not hold in that case that Massachusetts’ co-plaintiffs lacked standing to challenge the Bush administration’s refusal to use the tools provided by the Clean Air Act to limit greenhouse gas emissions.

In fact, the court said that Congress’ decision to include a citizen suit provision in the Clean Air Act meant that sovereign entities are not the only parties who can sue under the law.

When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant," he wrote.

Nor is the other pillar of Smith’s rejection of standing for the environmental plaintiffs necessarily well-grounded in the guidance offered by the justices. Smith’s opinion for the Ninth Circuit panel also asserted that, in contrast to the higher percentage of worldwide greenhouse gas emissions at issue in the Massachusetts case, the Washington refineries account for only five percent of warming pollution emanating from the sources just in that single state.

Stevens’ opinion in the Massachusetts case dismissed a similar argument against standing.

“[The] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum," Stevens wrote. "Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

In fact, Frank said, another federal appeals court has applied the Massachusetts decision to a question of standing very similar to that in the Washington case and come out exactly opposite to the Ninth Circuit panel.

“There’s a decision in the Second Circuit, based in New York, in American Electric Power v. Connecticut that I think is pretty diametrically opposed to this,” he said.

One explanation for the Ninth Circuit decision may be judicial discomfort with the notion that courts should help fashion a societal response to climate change.

At oral argument in the Washington case, one of the judges on the panel indicated that he believed that the courts should discourage litigation as a method for dealing with it.

"Perhaps carbon dioxide causes harm, we know poverty causes harm, so why shouldn't it be a policy question decided Congressionally rather than an inch-by-inch incremental series of injunctions by district courts, each of which has no practical effect, but in your theory incrementally adds up to an effect?," Judge Andrew Kleinfeld, an Alaska-based member of the panel that decided the case, asked at oral argument July 10.

Frank explained that this response may be based on a view that climate change is too complex for courts.

“You’re talking about a global problem,” he said. “One unit of pollution emitted in Anacortes, Washington does not have more or less effect than a unit of pollution discharged in Beijing, Paris, or Johannesburg.”

The federal appeals court also held that, even if the plaintiffs had shown causality between the refinery emissions and environmental damage to Washington lands and waters and the atmosphere, a RACT requirement would not make any difference.

"Because the effect of collective emissions from the [o]il [r]efineries on global climate change is 'scientifically indiscernible,' [p]laintiffs' injuries are likely to continue unabated even if the [o]il [r]efineries have RACT controls," Smith wrote.

Smith's opinion was joined by Kleinfeld and circuit judge N. Randy Smith.

Smith was appointed to the bench by former President George W. Bush in 2006, while Smith was appointed by Bush in 2007. Kleinfeld was appointed by President George H.W. Bush in 1991.

The case is Washington Environmental Council v. Bellon, No. 12-35323.