As we discussed in an earlier post, in October 2013 the Ninth Circuit held in Washington Environmental Council v. Bellon, 732 F.3d 1131, that it lacked jurisdiction to hear certain environmental organizations’ challenge to Washington’s failure to regulate greenhouse gas (GHG) emissions from the state’s five oil refineries under the Clean Air Act.  The circuit assumed without deciding that anthropogenic GHG emissions in general are causally linked to climate change, but found plaintiffs had failed to sufficiently allege a causal link between the lack of “reasonably available control technology” (RACT) limits on the refineries and their alleged climate-change related injuries.  Because of a “natural disjunction between . . . localized injuries and the greenhouse effect,” the court suggested, such a link will be difficult to establish in any case given the limitations of current science. Id. at 1143.

On February 3, 2014, the court denied rehearing en banc.  Judge Milan Smith, who wrote the panel opinion, issued a concurrence in the denial (joined by Judge N. Randy Smith, also on the panel) stressing that the panel’s holding was compelled by the standing requirements articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Judge Gould, joined by Judges Wardlaw and Paez, dissented from the denial, arguing that Massachusetts v. EPA, 549 U.S. 497 (2007), confers standing not only on states, but also on environmental organizations bringing global-warming related challenges to governmental failures to regulate.  (Judge Kleinfeld, the third member of the panel, did not express his views on the denial.)

The circuit’s refusal to rehear the case leaves the panel opinion standing, and its broad reasoning that it is difficult, if not impossible, to sufficiently trace local climate-change injuries to a particular source will surely be cited in similar cases, especially those where local climate change-based injuries are alleged.  Plaintiffs now have 90 days to petition the Supreme Court to hear the case.