By denying rehearing en banc in Washington Environmental Council v. Bellon (Nos. 12-35323, 12-34324, 12-35358), the Ninth Circuit has left in place a decision that may severely curb the ability of individuals and environmental groups to bring Clean Air Act citizen suits targeting greenhouse gas emissions.
In March 2011, plaintiffs Washington Environmental Council and the Sierra Club, Washington State Chapter, brought a suit against the Washington State Department of Ecology and two regional air agencies in the U.S. District Court for the Western District of Washington.
Plaintiffs alleged that under Washington's Clean Air Act State Implementation Plan ("SIP"), the agencies were obligated to regulate greenhouse gas emissions from the state's top five refineries. The Western States Petroleum Association ("WSPA"), where the five refineries were members, intervened on behalf of the agencies. The District Court awarded plaintiffs summary judgment and enjoined defendants to promulgate emission limits called "reasonably available control technology" ("RACT") by May 2014. On appeal, WSPA argued for the first time that plaintiffs lacked Article III standing. Under Supreme Court precedent, a plaintiff must satisfy three elements to have standing to pursue a claim in federal court: (i) an injury in fact that is concrete, particularized, and actual or imminent; (ii) the injury is fairly traceable to the challenged conduct; and (iii) the injury is likely to be redressed by a favorable court decision...
