Greenhouse Gas Claims Spark 9th Circuit Dissent

(CN) - Several 9th Circuit judges spoke out Monday about the court's refusal to rehear claims over unregulated greenhouse gas emissions from oil refineries in Washington.

The Washington Environmental Council and the Sierra Club filed a citizen suit under the Clean Air Act (CAA) in 2011, hoping to force the state to set limits on the amount of greenhouse gases spewed from five refineries.

They claimed that the state's failure to apply "reasonably available control technology" (RACT) standards to the refineries violated Washington's CAA implementation plan. The Western States Petroleum Association (WSPA) intervened in the case on the side of the state and the refineries, which are responsible for about 6 percent of the state's greenhouse-gas emissions.

U.S. District Judge Marsha Pechman ruled for the environmental groups on the RACT claim and ordered the state to impose "reasonably available control technologies" on the refineries by May 2014.

But the federal appeals court in Seattle killed that effort by applying a high bar for standing in the case.

The plaintiffs failed to show a "causal connection" between the state's failure to regulate the refineries and the alleged ravages of climate change, the court found in October.

Typical of many environmental cases, the challenge at hand alleged that members of the environmental groups suffered from the state's lack of regulation because of the wildland recreation opportunities worsened by climate change - from melting glaciers for hikers to decreased snowpack for skiers.

They also claimed that climate change resulting from greenhouse gases caused property damage, ill health, "rising sea levels, coastal flooding, acidification of marine waters, declines in shellfish production, impacts to snow pack and water supplies, agricultural impacts on the east side of the Cascades, and changes in forest fires."

None of it was enough for the panel's tough standard, however, and they sent the case back down with an order to dismiss.

A 9th Circuit judge then called for vote on rehearing the case en banc, but the move failed Monday to win a majority.

Joined by two colleagues, Judge Ronald Gould lamented the court's decision not to rethink "the panel's overbroad opinion, which employs unduly restrictive language to foreclose citizen suits seeking to use the Clean Air Act to fight global warming."

"The panel has essentially read private citizens out of the equation when it comes to using courts to address global warming," Gould wrote in dissent. "The majority's argument - whose logical conclusion is that non-state entities categorically lack standing to use the Clean Air Act to compel state action on global warming - disregards Supreme Court precedent, makes bad law for our circuit, and harms the public."

Judge Milan Smith, who wrote the October opinion, meanwhile called the denied rehearing wise.

"While Judge Gould clearly favors a different result, his dissent ignores the facts before us, and fails to acknowledge the clear precedent by which we are bound," Smith's concurring opinion, in which Judge N. Randy Smith joined, states.

Smith closed by calling out one of Gould's points as perplexing.

"This is not a case in which private individuals seek to preclude novel state action," Smith wrote. "This is a case in which plaintiffs seek injunctive relief compelling a state to promulgate particular regulations that they claim are required by federal law."

He emphasized that the case fails under the Supreme Court's 1992 decision in Lujan v. Defenders of Wildlife.

That case required the plaintiffs to show that an injunction would cause the "agencies to promulgate RACT standards that demand cleaner technology than the oil companies currently use; (2) that the oil companies would comply with these new standards; (3) that the oil companies' compliance would reduce greenhouse gas emissions; and (4) that these lower emissions would mitigate global climate change in a way that would alleviate plaintiffs' alleged injuries," Smith wrote.

"Not only did plaintiffs fail to introduce evidence satisfying any of these factors, but the state also introduced evidence that 'RACT [standards] would likely not result in meaningful greenhouse gas reductions because RACT is a low bar and many sources are likely already meeting or exceeding RACT,'" Smith added (emphasis and brackets in original). "Accordingly, we held that plaintiffs did not meet their summary judgment burden under Lujan."

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