Injury Is Not Enough: Ninth Circuit Finds No Standing for Environmental Groups Suing Regulatory Agencies Under the Clean Air Act

November 5, 2013

Tuesday, November 5, 2013, by Gabriel Kussin
The Ninth Circuit Court of Appeals has held that environmental protection organizations in Washington State do not have standing to sue the state agencies responsible for enforcing the Federal Clean Air Act. The case focused on Washington’s lack of restrictions on oil refineries located in within the state that emit carbon dioxide and other greenhouse gases (“GHGs”). In reversing the Western District Court of Washington’s ruling, the three judge appellate panel rejected the arguments of the two non-profit environmental groups, holding that the lackluster enforcement mechanisms pursued by the state of Washington were not directly responsible for the injuries individuals in the Pacific Northwest have suffered as a result of global warming. While not a surprising decision, the Ninth Circuit’s ruling represents another barrier to the pursuit of civil claims against organizations that contribute to climate change.
In Washington Environmental Council v. Bellon, the Sierra Club and the Washington Environmental Council (“WEC”) sued several environmental protection agencies, including the Washington State Department of Ecology, for failing to define reasonably available control technology (“RACT”) emission limits for GHGs in the state. The oil companies and owners of the refineries successfully intervened as defendants due to the obvious effect a ruling for the non-profits would have on their organizations. The oil associations successfully argued that the Sierra Club and WEC lacked standing under Article III of the Constitution.

While in any other situation this would be a tremendous coup for environmental activists, the court’s interpretation of the second and third prongs [for standing] throws cold water on any possible excitement.

Generally, courts have used a three pronged test to determine whether a plaintiff has standing to pursue a lawsuit. First, the party must show that they in fact were injured by the actions of the opposing faction or that they are about to suffer an imminent injury. Interestingly, in this case—as compared to previous climate change litigation—both the defendants and the court accepted that GHGs and climate change do cause injury to individuals. While in any other situation this would be a tremendous coup for environmental activists, the court’s interpretation of the second and third prongs throws cold water on any possible excitement.
In order to achieve standing, if an injury has, or will occur, the plaintiff must also show that the injury was caused by the defendant and that the court can plausibly redress the injury in some fashion. It was on these two elements that the Ninth Circuit based their opinion and agreed with the oil company defendants. While acknowledging the injury that GHGs cause, the amount of GHGs released by the oil refineries in Washington only represents 5.9% of the total carbon emissions yearly in the state. The panel distinguished this case from the landmark Supreme Court case, Massachusetts v. EPA, where the Court determined that a state did have standing to sue on environmental grounds regarding automotive emissions, since cars produce nearly 6% of global GHGs. While no bright line distinction has been made, the Ninth Circuit clearly believes that the oil refineries contribution to climate change is not the deciding cause of environmental injury. Relatedly, since the contribution was negligible, any restrictions or penalties placed by a court would also be trivial since it would do nothing to prevent future ecological damage.
Courts will continue to struggle with standing and injury with cases that involve environmental claims, but for now it appears that the Ninth Circuit has restricted the application of the Clean Air Act to the most grievous of ecological injuries.