Two environmental groups failed to convince the U.S. Court of Appeals for the 9th Circuit that there was a causal link between greenhouse gases (GHGs) emitted by five oil refineries in Washington State and injuries suffered by individuals in the state.  Accordingly, the 9th Circuit vacated a decision by a U.S. district court that had found that the Washington State Department of Ecology (Ecology) and two regional air agencies had violated Washington’s state implementation plan (SIP) by not establishing GHG emissions limits for the refineries. 

Significantly, the 9th Circuit’s opinion draws a clear line between the special position of states regarding the regulation of GHGs and the rights of private entities. 

RACT and narrative standard

In 2011, the Washington Environmental Council and the Sierra Club filed suit in the U.S. District Court for the Western District of Washington, alleging that Ecology, the Northwest Clean Air Agency, and the Puget Sound Clean Air Agency (the Agencies) had not met two SIP requirements for GHGs. 

First, the groups argued, the Agencies had not established reasonably available control technology (RACT) standards for GHGs emitted by certain source categories, in this instance, the refineries. Second, the groups argued that the Agencies had also failed to meet the SIP’s narrative standard, which applies to any air contaminant that inflicts harm on people or the environment. 

The District Court ruled that the Agencies were indeed required to impose RACT GHG standards on the refineries; however, the district court dismissed the narrative standard claim.

Standing criteria

In its review, a three-judge panel of the 9th Circuit focused on the standing of the plaintiffs to pursue a citizens’ suit.  According to the panel, standing is established in three ways.  First, the plaintiffs must demonstrate that they have suffered harm.  Second, the harm must be causally linked to the defendants’ misconduct.  And third, the injuries to the plaintiff must be redressable by correction of the misconduct. 

The court did not dispute that a group of Washington State residents presented by the plaintiffs had been harmed by GHG emissions.  These individuals included people living near the refineries whose illnesses were being exacerbated by warmer temperatures and resulting ozone pollution.  The court also acknowledged that individuals who were no longer able to recreate because of impacts to the snow pack and water levels had also been harmed.

Global pollutant

However, the 9th Circuit could not see a causal connection between the harm suffered by the individuals and GHG emissions from the refineries.  The problem for the environmental groups is the global nature of GHG emissions and the technical infeasibility of attributing harm to one source or one group of sources rather than all sources worldwide. 

“Plaintiffs’ causal chain—from lack of RACT controls to Plaintiffs’ injuries—consists of a series of links strung together by conclusory, generalized statements of ‘contribution,’ without any plausible scientific or other evidentiary basis that the refineries’ emissions are the source of their injuries,” wrote the panel.  “While Plaintiffs need not connect each molecule to their injuries, simply saying that the Agencies have failed to curb emission of greenhouse gases, which contribute (in some undefined way and to some undefined degree) to their injuries, relies on an ‘attenuated chain of conjecture’ insufficient to support standing.”

The panel applied the same thinking to the redressability criterion.   “Even if we assume that RACT standards would eliminate all GHG emissions from the Oil Refineries, Plaintiffs have not submitted any evidence that an injunction requiring RACT controls would likely reduce the pollution causing Plaintiffs’ injuries.”

State quasi-sovereignty

In addition, the panel did not accept the plaintiffs’ contention that the U.S. Supreme Court opinion in Massachusetts v. EPA should be applied in this case.  That case was concerned in part with the harm caused to Massachusetts and other states because of GHG emissions from motor vehicles.  But the Supreme Court found that the plaintiff states were entitled to a relaxed standing requirement because each state has a “quasi-sovereign” right to protect its citizens, earth, and air. 

“In contrast to Massachusetts v. EPA, the present case neither implicates a procedural right nor involves a sovereign state,” wrote the panel.  “Rather, Plaintiffs are private organizations, and therefore cannot avail themselves of the ‘special solicitude’ extended to Massachusetts by the Supreme Court.”

WEC/Sierra Club v. Washington State Department of Ecology et al.