Ninth Circuit Addresses Standing Requirements Under the Clear Air Act

-By Kara Davis, Online Editor

             Marten Law recently reported on the Ninth Circuit’s ruling that two environmental groups – the Washington Environmental Council (“WEC”) and the Sierra Club – “do not have standing to bring a citizen suit under the Clean Air Act to force state agencies to regulate greenhouse gas (GCG) emissions from five oil refineries in the State of Washington.” [1]  The environmental groups brought their suit in federal district court under the citizen suit provisions of the federal Clean Air Act.  Id.  The groups sought to compel Washington local air agencies – Northwest Clean Air Agency and Puget Sound Clean Air Agency (“Air Agencies”) – to regulate GHG emissions from refineries within Washington, asserting that the Air Agencies failed to impose limits on GHG emissions from the refineries in violation of Washington’s State Implementation Plan (SIP).  Id.  SIPs are federally enforceable under the Clean Air act once the Environmental Protection Agency (EPA) approves them.  Id.  The Air Agencies “disputed whether the SIP is federally enforceable beyond a specific set of air pollutants, which do not include GHGs.”  Id.

         To have standing to pursue a claim under Article III of the United States Constitution, a plaintiff must meet three requirements: (1) the claimant must suffer injury in fact that is concrete, particularized, and actual or imminent; (2) the injury must be fairly traceable to the challenged conduct; and (3) the injury must be likely to be redressed by a favorable court decision.  Id.  In reaching their decision, the Court assumed that the environmental groups had shown injury in fact from the GHG emissions due to climate change based on the Supreme Court’s decisions in Massachusetts v. EPA, 549 U.S.497 (2007), and American Electric Power Company v. Connecticut, 131 S. Ct. 2527 (2011).  Id.  However, the court found that the plaintiff’s failed to establish a causal link between GHG emissions from the refineries and their claimed injuries, thus finding that the groups failed to meet the second requirement to establish standing.  Id.  “[T]he court rejected the environmental groups’ argument that a causal connection may be inferred between failure to regulate and environmental injury when there is a statutory direction to develop GHG regulations.” Id.  The connection, the court said, “must be made between the inferred injury to the environment and the injury claimed by the plaintiffs, and that the environmental groups had not shown that their specific injuries are fairly traceable to the failure to set RACT standards for GHG emissions form the refineries.”  Id.  In rejecting the plaintiff’s arguments, the court also held that the WEC did not implicate a procedural right nor involved a sovereign state.  Id.  Additionally, the court found that, unlike the combined U.S. vehicle emissions at issue in Massachusetts, the GHG emissions from the Washington refineries do not make a “meaningful contribution” to global GHG levels.  Id.  As to the third requirement of standing, “the court found no evidence in the record that the GHG RACT standard sought by the environmental groups would curb a significant amount of GHG emissions.”  Id. 

            In its concluding analysis, Marten Law observed, “it remains to be seen how the holdings in WEC will play out over future cases. Regardless, the case highlights the difficulty of seeking to use the federal courts to address global phenomena like GHG emissions and climate change.”  Id.


[1] Svend Brandt-Erichsen, Clean Air Act: Ninth Circuit Tosses Suit Seeking to Force State and Local Air Agenceis to Regulate Greenhouse Gases, Marteen Law (Oct. 27, 2013), 

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