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.

Continue Reading The Courts Exit the Debate Over Regulation of Greenhouse Gas Emissions