Greenhouse Gas Dispute Tossed Over Standing

(CN) - Environmental groups lack standing to challenge the Washington state Ecology Department's refusal to regulate greenhouse gas emissions from oil refineries, the 9th Circuit ruled Thursday.

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 Thursday 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.

"Plaintiffs offer only vague, conclusory statements that the agencies' failure to set RACT standards at the oil refineries contributes to greenhouse gas emissions, which in turn, contribute to climate-related changes that result in their purported injuries," Judge Milan Smith for a unanimous three-judge panel.

"Here, plaintiffs must still establish that their specific, localized injuries are fairly traceable to the agencies' failure to set RACT standards for the GHG emissions from the oil refineries," Smith added.

The groups had argued in their lawsuit, typical of many environmental cases, that their members 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."

But none of it was enough for the panel's tough standard, and Judge Smith even came close to saying that finding causality in a climate-change case may be hopeless.

"Indeed, attempting to establish a causal nexus in this case may be a particularly challenging task," the judge wrote. "This is so because there is a natural disjunction between plaintiffs' 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."

The panel sent the case back down with an order to dismiss.

Earthjustice Legal Defense Fund attorney Janette Brimmer, who represented the environmental groups, called the ruling "inconsistent with previous decisions" in the 9th Circuit and said that a possible request for a rehearing is "certainly ... going to be on the table."

"It does set a pretty high bar," she said Thursday. "There are very few environmental problems that have a single cause."

And yet, in the past, courts have been able to "find our way through" complex and thorny environmental issues, Brimmer said. Moreover, "the court plainly recognized and agreed that these folks are suffering the impacts of climate change," she added.

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