Last week, when the Ninth Circuit denied the petition for rehearing en banc of the decision in Washington Environmental Council v. Bellon, it took what may be the final step to limit the role of courts in the debate over regulation to restrict carbon emissions. Bellon held that environmental plaintiffs do not have standing to sue to compel the Northwest Clean Air Agency (NWCAA) to set stricter standards for greenhouse gas emissions.

In Bellon, the environmental plaintiffs sought to compel the Northwest Clean Air Agency to adopt new RACT (Reasonably Available Control Technology) standards for the five oil refineries in Washington. The district court agreed and ordered NWCAA to determine RACT for the refineries within 26 months. Standing requires that a plaintiff show not just that it has been injured, but also that its injury can be remedied by a decision of the courts. The Ninth Circuit reversed, finding that the plaintiffs had not shown, and could not show, the required causality between their conceded injury from global warming, and any failure by NWCAA to adopt RACT rules, or that a judicial decision would provide them with any remedy for their injury.

The denial of rehearing en banc was supported by an opinion by Judge Milan Smith, joined by Judge Randy Smith, putting the issue succinctly:

Under Lujan [v. Defenders of Wildlife], it was Plaintiffs’ burden to come forward with evidence at the summary judgment stage demonstrating that injunctive relief would: (1) cause the Defendant-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.

The point that Judge Smith couldn’t get past was that it was impossible to say that even if NWCAA adopted new RACT standards, and even if the refineries emitted less greenhouse gas as a result, it would make any difference in terms of climate change. There are so many sources of greenhouse gas emissions, and emissions from developing nations at this point are so much greater in total than U.S. emissions and are growing while U.S. emissions are shrinking, that there is no reason to believe restricting refinery emissions in Washington will affect the course of climate change and the plaintiffs’ damages from climate change.

Judge Ron Gould, joined by Judges Kim Wardlaw and Richard Paez, filed an angry dissent. Judge Gould argued that the principles of Massachusetts v. EPA, should be applied to grant standing to plaintiffs. Massachusetts v. EPA is the 2006 Supreme Court decision that found that the State had standing based on the injury its citizens were facing from rising sea levels to force the EPA to reconsider its failure to impose stricter greenhouse gas emission standards on the auto industry. Judge Gould argued that in Massachusetts, the EPA had made the same argument made by the defendants in Bellon–that global warming was a global problem with global causes, and there was no basis to conclude that winning their suit against EPA would redress the injury of coastal states facing rising sea levels.

The Supreme Court rejected EPA’s argument in Massachusetts on two grounds, which the Ninth Circuit apparently thinks are quite narrow. The first was that there is a lower standard for standing when a plaintiff is seeking a merely procedural remedy (in that case, that the EPA make rules) rather than a substantive remedy (that the court tell the agency what the rules should be). It’s not clear how the Bellon case differed from Massachusetts in that regard. The district court didn’t tell NWCAA what the RACT rules should be, but only that it needed to adopt RACT rules within 26 months.

The second basis for the Supreme Court finding standing was that Massachusetts was a “sovereign state.” That “sovereign state” distinction is the critical basis on which the Ninth Circuit distinguished Massachusetts from the plaintiffs in Bellon. Putting aside for the moment that Massachusetts gave up its sovereignty in 1788 when it ratified the federal constitution, the distinction for standing purposes is largely without precedent. Lujan v. Defenders of Wildlife, which the Ninth Circuit relied on, involved a quite different circumstance of the status of sovereignty. In Lujan, the plaintiffs wanted the State Department to be forced in its dealings with foreign government, and as a condition of foreign aid, to impose obligations on other governments to protect endangered species. The Supreme Court held that the Plaintiffs there had not made an adequate showing of injury in fact, or that the courts could remedy their injury. But it is a quite different thing to hold that Congress did not intend the courts to intervene based on the ESA to tell the State Department how to deal with foreign governments, and to say that only states can speak for injuries to citizens of their state. The United States has a very limited ability to tell foreign governments what laws they should pass or enforce; the United States tells states within the United States what laws they should pass all the time. And many standing cases establish the right of environmental groups to sue to protect environmental interests of their members.

In the end, the real controversy was probably stated by Judge Gould: “In my view, as our planet warms and our oceans rise, individual citizens should have standing to urge their states to take corrective incremental actions to combat global warming.”

In fact, citizens do have standing to urge their states to take corrective incremental actions to combat global warming. Just not in the courts apparently. Bellon holds issues of greenhouse gas emission regulation are political, not judicial questions. The doctrine of standing is premised on the idea that our courts are not where political questions are resolved. Courts only decide disputes that are between two individuals and entities, not policy decisions. The dark side of the standing doctrine is that when the legislative branch fails and the executive branch fails to address a political question, the courts will not intervene to do their work for them.

The difficulty with global warming is that it is a tragedy of the commons. Each individual, each state, each business, each entity, acting in its own self-interest, nibbles away at the common good. But because each nibble is just a nibble, no one actor will ever be able to say that changing their own behavior will change the outcome. And so, without government intervening, the world will continue greenhouse gas emissions until the commons has been profoundly altered.

Many of our environmental laws were adopted precisely because it is the role of government to protect “the commons.” But those laws were adopted in a more optimistic time, when government was less partisan and less divided, and when coalitions could be built from both sides of the political spectrum. Today, that seems like an anachronism to be longed for. That said, the Ninth Circuit has clearly decided that the courts will not step into that breach. The Ninth Circuit has long been known as the most liberal and activist federal court. Absent the Supreme Court granting review in Bellon and reversing, it seems likely that the legislative and executive branches of government are the only branches that will be able to act.