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Ninth Circuit Denies Rehearing in Greenhouse Gas Case, Continues to Struggle With Standing in Climate Litigation

February 13, 2014 posted by Eric Christensen

A recent order of the U.S. Court of Appeals for the Ninth Circuit illustrates the extent to which courts continue to struggle with otherwise routine legal issues when confronting claims related to climate change and greenhouse gas emissions. The order denies rehearing of last year's Ninth Circuit panel decision in Washington Environmental Council v. Bellon, which concluded that a group of environmental plaintiffs seeking to force the Washington Department of Ecology to issue greenhouse gas regulations lacked standing to bring the claim. The rehearing order was unusual in several respects. Ordinarily, a dissatisfied party to the case seeks rehearing and, in nearly all cases, rehearing is denied in a short order simply noting that an insufficient number of judges supported the request for rehearing. Perhaps the most unusual aspect of the Ninth Circuit's order is that it arose from a Ninth Circuit judge seeking rehearing, rather than from one of the parties. This suggests that at least some of the Ninth Circuit's judges view the October panel opinion as not just incorrect, but so seriously wrong that the Court should re-examine the decision even in the absence of any request to do so by the losing parties. The order is also unusual in that it included two impassioned opinions alternatively defending and attacking the October panel opinion. As we've previously discussed, the October opinion arose from a citizen suit filed under the Clean Air Act which sought to require the Department of Ecology to regulate greenhouse gas emissions from Washington's five oil refineries. The plaintiffs succeeded in the U.S. District Court, obtaining an order requiring Ecology to issue greenhouse gas regulations. On appeal, however, a three-judge panel of the Ninth Circuit vacated the District Court's order, concluding that plaintiffs could not establish standing. The five refineries produce only about 6% of Washington's total greenhouse gas emissions and an extremely small percentage of the world's overall greenhouse gas emissions. Hence, the three-judge panel concluded that plaintiffs failed to demonstrate either that the climate-based harms claimed by defendants (loss of snow-pack, ocean acidification, and the like) were fairly traceable to the conduct of the defendants or that granting the relief sought by plaintiffs would redress the claimed harms. In response to the panel opinion, an unnamed Ninth Circuit judge acting sua sponte asked his colleagues to rehear the panel opinion. The majority of the Court's judges rejected that request, provoking a strongly-worded dissent written by Judge Ronald M. Gould and joined by Judges Kim McLane Wardlaw and Richard A. Paez. The dissent's primary argument is that the panel mis-applied the Supreme Court's holding in Massachusetts v. EPA, which found that a group of states had standing to challenge EPA's failure to act on greenhouse regulation, and that the panel's ruling effectively bars plaintiffs from seeking relief from greenhouse gas pollution. The dissent's claims provoked an equally strong concurring opinion, written by Milan D. Smith, also the author of the October panel opinion, arguing that the panel correctly followed the Supreme Court's Lujan v. Defenders of Wildlife decision, and that Massachusetts concerns standing of sovereign states, not private individuals seeking to regulate third-party conduct. The decision demonstrates the difficulty of applying traditional legal concepts such as standing in the context of climate change cases, where both the source of pollution and the asserted harms are diffused across the globe. If you have any questions about the matters discussed in this post, greenhouse gas regulation, or other matters related to the energy industry, natural resources or the environment, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group, Environment & Natural Resources practice group, or Appellate practice group. We're proud that practice group members Jim Waldo, Don Cohen, Sal Mungia, Bill Lynne, and Brad Jones were all recently named 2014 Best Lawyers in America.