Establishing causation in private party climate change suits: correcting the mistakes of Washington Environmental Council v. Bellon.

AuthorMoffat, Corey
Position2013 Ninth Circuit Environmental Review
  1. INTRODUCTION II. BACKGROUND FACTS AND LEGAL DOCTRINES III. THE NINTH CIRCUIT'S DECISION THAT WEC FAILED TO ESTABLISH CAUSATION WAS INCORRECT A. The Ninth Circuit Misinterpreted "Special Solicitude" B. The Ninth Circuit Analyzed an Incorrect Causal Chain C. The Ninth Circuit Misinterpreted "Meaningful Contribution" IV. THE FUTURE OF CITIZEN SUITS IN THE CLIMATE CHANGE REALM. I. INTRODUCTION

    As the Intergovernmental Panel on Climate Change reported recently in its Fifth Assessment Report, not only is global warming "unequivocal," but it is also " extremely likely?' that human influence has been the dominant cause of this global temperature rise since the mid-twentieth century. (1) Moreover, the effects of temperature rise--such as melting ice and snow, rising sea levels, changing ocean ecology, and intensifying weather events--are not merely hypothetical. (2) They are perceptible and quantifiable. (3) In the face of these changing conditions, which have collectively been dubbed "the most pressing environmental challenge of our time," (4) both governmental agencies and courts have begun to grapple with the difficulties of regulating greenhouse gas emissions. (5)

    In the United States, one staple environmental enforcement tool that has recently garnered judicial attention in the context of climate change is the citizen suit. (6) Statutory citizen suit provisions empower citizens as private attorneys general to bring enforcement actions against either a party alleged to be in violation of the individual statute, or an administrative agency alleged to have failed to perform a nondiscretionary duty. (7) The purpose of citizen suits is to "spur" and "supplement" governmental enforcement actions, and both the Environmental Protection Agency (EPA) and the Department of Justice openly support citizen suits as a means to augment federal enforcement efforts. (8) Historically, citizen suits have grown in prominence over time and are now considered "the engine that propels the field of environmental law." (9) This has led some environmental law experts to describe citizen suits as "[o]ne of Congress's most important innovations." (10) However, citizen suits are also controversial, especially in states trying to create or maintain favorable business climates. (11) During the debate on whether to include the original citizen suit provision in the Clean Air Act, (12) critics argued that citizen suits would result in a multiplicity of lawsuits that would overload the courts and interfere with the Executive's ability to carry out its traditional enforcement duties. (13) More recently, critics have characterized citizen suits as an "off-budget entitlement program for the environmental movement." (14)

    The Ninth Circuit Court of Appeals's recent decision in Washington Environmental Council v Bellon (Bellon) (15) dealt a heavy blow to the potential viability of citizen suits in the climate change context. (16) In Bellon, the Ninth Circuit held that a collection of private environmental groups (WEC) lacked Article III standing to compel the Washington State Department of Ecology to regulate greenhouse gas emissions from the state's five oil refineries under the Clean Air Act. (17) Specifically, the Ninth Circuit held that WEC failed to establish the causation and redressability prongs of the three-part standing analysis laid out by the Supreme Court in Lujan v. Defenders of Wildlife (Defenders of Wildlife). (18) In so doing, the Ninth Circuit distinguished the Supreme Court's preeminent climate change decision, Massachusetts v EPA (Mass. v. EPA), (19) on grounds that Massachusetts' sovereign status and procedural interest entitled it to "special solicitude." (20) The Ninth Circuit held that because WEC could not avail itself of similar special solicitude, it could not rely on the Supreme Court's standing analysis from Mass. v. EPA. (21) The practical effect of this decision, according to Circuit Judge Gould, who dissented from the Ninth Circuit's decision to deny en banc review, was to "essentially read private citizens out of the equation when it comes to using courts to address global warming." (22) And while Circuit Judge Smith, who drafted the original opinion, countered that the decision did nothing to restrict environmental litigation beyond the limitations already established by the Supreme Court, (23) even the victorious party expressed reservations about the ramifications of Bellon on future private party lawsuits. (24)

    This Chapter analyzes the element of causation within the Ninth Circuit's standing analysis in Bellon, and more generally attempts to understand the decision's wider ramifications for climate change litigation. Part II outlines established Article III standing jurisprudence and provides relevant case law particularly regarding the element of causation. Part III argues that the Ninth Circuit's analysis in Bellon. 1) misinterpreted the Supreme Court's application of special solicitude in Mass. v. EPA and therefore erroneously distinguished its causation analysis; 2) applied a causal chain analysis that inappropriately required WEC to show that the specific, greenhouse gases from Washington's oil refineries caused--as opposed to contributed to--WEC's alleged injuries; and 3) misinterpreted the Supreme Court's reference to "meaningful contribution" in Mass. v. EPA to be much higher than the Supreme Court intended. As such, Part IV concludes that the Ninth Circuit incorrectly analyzed the causation element in Bellon. However, Part IV also notes that, moving forward, Bellon will make it incredibly difficult for parties of all types to address climate change in the legal arena.

  2. BACKGROUND FACTS AND LEGAL DOCTRINES

    Modern standing jurisprudence derives its authority from Article III of the Constitution. (25) Although Article III does not explicitly refer to standing, Section Two limits federal court jurisdiction to "cases" or "controversies." (26) In Defenders of Wildlife, the Supreme Court consolidated its previous case law interpreting this limitation to require that a plaintiff demonstrate: 1) the plaintiff has suffered an "injury in fact" that is a) concrete and particularized and b) actual or imminent, not conjectural or hypothetical; 2) there is a causal connection between the injury and the conduct complained of; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (27) A plaintiff must support each of these elements with the degree of evidence required at the successive stages of litigation. (28) As such, pleadings may rely on general factual allegations, but a response to a summary judgment motion requires more "specific facts." (29) Associations have "standing to bring suit on behalf of [their] members when": 1) "members would otherwise have standing to sue in their own right;" 2) "the interests at stake are germane to the organization's purpose;" and 3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (30) In essence, the purpose of the standing analysis is to determine whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." (31)

    The most controversial of the Defenders of Wildlife elements with regard to private party climate change litigation is causation. (32) Prior to 1970, courts did not require plaintiffs to establish causation. (33) In fact, earlier courts interpreted the Supreme Court's Federal Communications Commission v. Sanders Bros. Radio Station (34) line of cases as recognizing the constitutional legitimacy of statutory causes of action for private parties based solely on protecting the public interest. (35) However, this changed drastically in the 1970s primarily in response to the passage of a wave of environmental statutes, the majority of which included "citizen suit" provisions. (36) Perceiving that the American economic system was under siege, the Supreme Court, and in particular Justice Lewis Powell, authored a series of decisions that significantly limited Congressional power to authorize citizens to sue federal agencies on behalf of the public at large. (37) In one such decision, Simon v Eastern Kentucky Welfare Rights Organization, the Supreme Court required that the alleged injury "fairly can be traced to the challenged action of the defendant, and not ... th[e] result[] [of] the independent action of some third party not before the court." (38) The Supreme Court subsequently transformed this wording into the causation prong of contemporary standing jurisprudence. (39)

    In the Supreme Court's preeminent climate change decision, Mass. v. EPA, the Court held that the Commonwealth of Massachusetts was able to establish causation with regard to its challenge to an EPA order denying a petition for rulemaking to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act. (40) Specifically, the Supreme Court noted that EPA did not dispute the causal relationship between greenhouse gases and global warming, and addressed only EPA's argument that greenhouse gases from new motor vehicles were too insignificant to establish causation. (41) The Supreme Court dismissed this argument, explaining that, "[a]gencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop." (42) Instead, the Supreme Court held that evidence that domestic automobiles were responsible for more than 6% of worldwide carbon dioxide emissions was sufficient to show that domestic automobiles constituted a "meaningful contribution" to global greenhouse gas concentrations. (43)

    Controversially, however, the Supreme Court introduced its standing analysis in Mass. v. EPA by noting that Massachusetts was entitled to "special solicitude," implying that Massachusetts had a lower burden for establishing standing. (44) The Supreme Court based its recognition...

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