Ninth Circuit Erects Impediment To Greenhouse Gas Citizen Suits

By denying rehearing en banc in Washington Environmental Council v. Bellon (Nos. 12-35323, 12-34324, 12-35358), the Ninth Circuit has left in place a decision that may severely curb the ability of individuals and environmental groups to bring Clean Air Act citizen suits targeting greenhouse gas emissions.

In March 2011, plaintiffs Washington Environmental Council and the Sierra Club, Washington State Chapter, brought a suit against the Washington State Department of Ecology and two regional air agencies in the U.S. District Court for the Western District of Washington.

Plaintiffs alleged that under Washington's Clean Air Act State Implementation Plan ("SIP"), the agencies were obligated to regulate greenhouse gas emissions from the state's top five refineries. The Western States Petroleum Association ("WSPA"), where the five refineries were members, intervened on behalf of the agencies. The District Court awarded plaintiffs summary judgment and enjoined defendants to promulgate emission limits called "reasonably available control technology" ("RACT") by May 2014. On appeal, WSPA argued for the first time that plaintiffs lacked Article III standing. Under Supreme Court precedent, a plaintiff must satisfy three elements to have standing to pursue a claim in federal court: (i) an injury in fact that is concrete, particularized, and actual or imminent; (ii) the injury is fairly traceable to the challenged conduct; and (iii) the injury is likely to be redressed by a favorable court decision. With respect to the first prong, the Ninth Circuit panel assumed without deciding that plaintiffs had adduced "specific facts" of immediate and concrete injuries. Moving to the second prong, the court noted that plaintiffs were required to show that their injury was "causally linked or 'fairly traceable' to the Agencies' alleged misconduct, and not the result of misconduct of some third party not before the court." The court concluded that plaintiffs had failed to satisfy their evidentiary burden of establishing causality. According to the panel, plaintiffs offered "only vague conclusory statements" that the agencies' failure to set and apply standards for RACT at the oil refineries contributed to greenhouse gas emissions, which subsequently contributed to climate change that resulted in their injuries. The court considered this "attenuated chain of conjecture" insufficient to support standing, especially where there are numerous independent sources of...