Washington Environmental Counc v. Theodore Sturdevant , 732 F.3d 1131 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON ENVIRONMENTAL No. 12-35323
COUNCIL; SIERRA CLUB, Washington
State Chapter, D.C. No.
Plaintiffs-Appellees, 2:11-cv-00417-
MJP
v.
MAIA D. BELLON, Director of
Washington State Department of
Ecology, in her official capacity;
MARK ASMUNDSON, Director,
Northwest Clean Air Agency, in his
official capacity; CRAIG T.
KENWORTHY, Director, Puget Sound
Clean Air Agency, in his official
capacity,
Defendants-Appellants.
WASHINGTON ENVIRONMENTAL No. 12-35324
COUNCIL; SIERRA CLUB, Washington
State Chapter, D.C. No.
Plaintiffs-Appellees, 2:11-cv-00417-
MJP
v.
MAIA D. BELLON; MARK
ASMUNDSON, Director, Northwest
2 WASH. ENVTL. COUNCIL V. BELLON
Clean Air Agency, in his official
capacity; CRAIG T. KENWORTHY,
Defendants,
and
WESTERN STATES PETROLEUM
ASSOCIATION,
Intervenor-Defendant – Appellant.
WASHINGTON ENVIRONMENTAL No. 12-35358
COUNCIL; SIERRA CLUB, Washington
State Chapter, D.C. No.
Plaintiffs-Appellants, 2:11-cv-00417-
MJP
v.
MARK ASMUNDSON, Director, OPINION
Northwest Clean Air Agency, in his
official capacity; CRAIG T.
KENWORTHY, Director, Puget Sound
Clean Air Agency, in his official
capacity; MAIA D. BELLON, Director
of Washington State Department of
Ecology, in her official capacity,
Defendants-Appellees,
and
WESTERN STATES PETROLEUM
ASSOCIATION,
Intervenor-Defendant.
WASH. ENVTL. COUNCIL V. BELLON 3
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted
July 10, 2013—Seattle, Washington
Filed October 17, 2013
Before: Andrew J. Kleinfeld, Milan D. Smith, Jr.,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Environmental Law
Vacating the district court’s judgment, the panel held that
plaintiffs lacked standing to pursue a citizen suit seeking to
compel the Washington State Department of Ecology and
other regional agencies to regulate greenhouse gas emissions
from the state’s five oil refineries under the Clean Air Act.
The panel assumed without deciding that the plaintiff
non-profit conservation groups showed the injury in fact
required to establish Article III standing by submitting their
members’ declarations attesting to specific aesthetic and
recreational injuries allegedly resulting from the agencies’
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WASH. ENVTL. COUNCIL V. BELLON
failure to control greenhouse gas emissions. Nonetheless, the
plaintiffs failed to satisfy the causality and redressability
requirements for standing. The panel held that the chain of
causality between the defendants’ alleged misconduct and the
plaintiffs’ specific, localized injuries was too attenuated. The
panel also held that the plaintiffs did not show that their
injuries would be redressed by a court order requiring the
defendants to control greenhouse gas emissions from the oil
refineries. The panel vacated the district court’s order on the
parties’ dispositive motions and remanded to the district court
with instructions that the action be dismissed for lack of
subject matter jurisdiction.
COUNSEL
Laura J. Watson (argued), Assistant Attorney General; Robert
M. McKenna, Attorney General; and Katharine G. Shirey,
Assistant Attorney General, Olympia, Washington; Svend A.
Brandt-Erichsen, Marten Law PLLC, Seattle, Washington;
Jennifer A. Dold, Puget Sound Clean Air Agency, Seattle,
Washington, for Defendants-Appellants/Cross-Appellees.
Janette K. Brimmer (argued), Earthjustice Legal Defense
Fund, Seattle, Washington; Brian W. Chestnut and Joshua A.
Osborne-Klein, Ziontz Chestnut Varnell Berley & Slonim,
Seattle, Washington, for Plaintiffs-Appellees/Cross-
Appellants.
Jeffrey W. Leppo (argued), Matthew Cohen, and Jason T.
Morgan, Stoel Rives LLP, Seattle, Washington, for
Intervenor-Defendant-Appellant.
WASH. ENVTL. COUNCIL V. BELLON 5
OPINION
M. SMITH, Circuit Judge:
The parties cross appeal the district court’s decision
granting in part and denying in part their dispositive motions
regarding environmental claims brought by the Washington
Environmental Council (WEC) and the Sierra Club,
Washington State Chapter, (collectively, Plaintiffs) under the
citizen-suit provision of the federal Clean Air Act (CAA),
42 U.S.C. §§ 7401–7671q. Plaintiffs seek to compel the
Washington State Department of Ecology (Ecology) and
other regional agencies (collectively, the Agencies)1 to
regulate greenhouse gas emissions from the state’s five oil
refineries under the CAA. The Western States Petroleum
Association (WSPA), whose members include those
refineries, intervened on behalf of the Agencies. Specifically,
Plaintiffs claim that the Agencies failed to define emission
limits—called “reasonably available control technology”
(RACT)—for greenhouse gases, and apply those limits to the
oil refineries, in violation of two provisions of Washington’s
CAA State Implementation Plan (SIP): the “RACT
Standard” and “Narrative Standard.” The district court
awarded Plaintiffs summary judgment on their RACT claim,
but dismissed their Narrative claim. The court enjoined
Defendants to complete the RACT process for the refineries
by May 2014.
1
Defendants are Maia D. Bellon, substituted for her predecessor
Theodore L. Sturdevant, Fed. R. App. P. 43(c)(2); Mark Asmundson; and
Craig T. Kenworthy, in their official capacities as directors of,
respectively, the Washington State Department of Ecology; the Northwest
Clean Air Agency; and the Puget Sound Clean Air Agency.
6 WASH. ENVTL. COUNCIL V. BELLON
On appeal, WSPA argues that Plaintiffs lack Article III
standing. We agree with WSPA, and hold that Plaintiffs
failed to satisfy the causality and redressability requirements
to establish Article III standing. Accordingly, we vacate the
district court’s order on the parties’ dispositive motions and
remand with instructions that the action be dismissed for lack
of subject matter jurisdiction.2
FACTS AND PRIOR PROCEEDING
A. Greenhouse Gas Emissions
Greenhouse gases are gases that trap heat in the
atmosphere and contribute to what is known as the
“greenhouse effect.” See Endangerment and Cause or
Contribute Findings for Greenhouse Gases Under Section
202(a) of the Clean Air Act, 74 Fed. Reg. 66496-01, 66499
(Dec. 15, 2009); Massachusetts v. EPA, 549 U.S. 497, 504
(2007). Greenhouse gases consist of carbon dioxide,
methan e, n i t rous ox ide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, among others
(collectively, greenhouse gases or GHGs). 74 Fed. Reg. at
66499. Both natural and man-made sources contribute to
2
Defendants and WSPA further argue that the district court lacked
jurisdiction under the CAA’s citizen-suit provision, 42 U.S.C.
§ 7604(a)(1), in light of the Supreme Court’s decision in Bennett v. Spear,
520 U.S. 154 (1997). They urge this court to follow the Sixth Circuit’s
recent ruling in Sierra Club v. Korleski, 681 F.3d 342 (6th Cir. 2012),
where the court held that under Bennett, the CAA’s citizen-suit provision
does not permit suit against government agencies acting in their regulatory
capacity for alleged statutory violations under the CAA. Because we
conclude that Plaintiffs lack Article III standing, we do not reach this
issue. Nor do we reach the parties’ other arguments as to whether the
district court properly decided the merit claims.
WASH. ENVTL. COUNCIL V. BELLON 7
greenhouse gases, which are mixed and dispersed in the
global atmosphere. Id. Although there is continuing
scientific debate regarding some of the causes, projections,
and effects of global warming, we assume for the purposes of
this opinion that global temperatures have increased over the
past fifty years and that greenhouse gases are contributing to
global climate change. The U.S. Environmental Protection
Agency (EPA) has announced that six greenhouse gases taken
in combination “may reasonably be anticipated both to
endanger public health and to endanger public welfare.”
74 Fed. Reg. at 66497; see also id. at 66524–66535
(discussing adverse environmental effects and other dangers
resulting from greenhouse gas emissions); Am. Elec. Power
Co. v. Connecticut, 131 S. Ct. 2527, 2532–33 (2011) (AEP).3
In Washington, Plaintiffs allege—and Defendants
admit—that greenhouse gases have caused climate-related
changes, such as “rising sea levels, coastal flooding,
acidification of marine waters, declines in shellfish
production, impacts to snow pack and water supplies,
agricultural impacts on the east side of the Cascades, and
changes in forest fires.” Compl. ¶ 15. The Governor of
Washington declared that “greenhouse gases are air
contaminants within the meaning of the state’s Clean Air Act
and pose a serious threat to the health and welfare of
Washington’s citizens and the quality of the environment.”
State of Wash. Governor Exec. Order 09-05, Washington’s
Leadership on Climate Change (May 21, 2009).
3
Like the Supreme Court in AEP, 131 S. Ct. at 2533 n.2, we take no
position concerning the scientific issues related to greenhouse gas
emissions and climate change.
8 WASH. ENVTL. COUNCIL V. BELLON
In this case, there is no dispute that the five oil refineries
in Washington—BP Cherry Point, ConocoPhillips, Shell Oil,
Tesoro, and U.S. Oil (collectively, Oil Refineries)—emit
greenhouse gases. They are each members of Intervenor-
Defendant WSPA, a non-profit trade association that
represents the interests of the petroleum and petroleum
products industry in several states, including Washington.
Specifically, the refineries emit three greenhouse
gases—carbon dioxide, methane, and nitrous oxides—during
the conversion of crude oil into usable petroleum products,
and they publicly report their annual greenhouse gas emission
levels.4 Most of the refineries’ GHG emissions are carbon
dioxide. The collective GHG emission levels for the five
refineries in 2008 were 5.94 million metric tons of carbon
dioxide equivalents. This figure approximates current
greenhouse gas emission levels from the refineries. Ecology
reported that the total greenhouse gas emissions in
Washington in 2008 were 101.1 million metric tons of carbon
dioxide equivalents. Thus, in 2008, GHG emissions from the
Oil Refineries were approximately 5.9% of the total
greenhouse gas emissions in Washington.
B. Regulatory Framework – CAA and SIPs
The Clean Air Act authorizes the creation of air quality
standards for a number of pollutants. These standards are
called the National Ambient Air Quality Standards
(NAAQS). 42 U.S.C. § 7409(a), (b). The CAA instructs the
EPA to publish a list of air pollutants that cause or contribute
to air pollution and to issue NAAQS for each pollutant it has
identified. 42 U.S.C. §§ 7408(a), 7409(a). The EPA refers to
4
See “Washington State Greenhouse Gas Emissions Inventory,
1990–2008,” available at www.ecy.wa.gov/biblio/1002046.html.
WASH. ENVTL. COUNCIL V. BELLON 9
the air pollutants for which it has established NAAQS as
“criteria pollutants” or “NAAQS pollutants.” See 40 C.F.R.
§ 51.491. To date, the EPA has developed NAAQS for six
criteria pollutants: sulfur dioxide, particulate matter, carbon
monoxide, ozone, nitrogen dioxide, and lead. 40 C.F.R. § 50.
The EPA has not established NAAQS for greenhouse gases.
To ensure that air quality standards are met, the CAA
establishes a cooperative federal-state scheme that relies
heavily on state participation. Safe Air for Everyone v. EPA,
488 F.3d 1088, 1092 (9th Cir. 2007); 42 U.S.C.
§§ 7401–7431. Once the EPA sets the criteria pollutants,
each state must propose a SIP for the “implementation,
maintenance, and enforcement” of the ambient air quality
standards, 42 U.S.C. § 7410(a)(1), which is subject to the
EPA’s review and approval. Safe Air for Everyone, 488 F.3d
at 1091; Bayview Hunters Point Cmty. Advocates v. Metro.
Transp. Comm’n, 366 F.3d 692, 695 (9th Cir. 2004). When
the EPA approves a SIP, it becomes federal law and federally
enforceable, and must be carried out by the state. Safe Air for
Everyone, 488 F.3d at 1091; Bayview Hunters, 366 F.3d at
695.
In Washington, the Agencies are responsible for
implementing the CAA requirements. The EPA approved
certain revisions to the SIP submitted by Ecology in 1995.
60 Fed. Reg. 28,726-01 (June 2, 1995). At issue in this case
are two provisions in the EPA-approved SIP—the RACT
Standard and Narrative Standard—codified in the
Washington Administrative Code (WAC).
10 WASH. ENVTL. COUNCIL V. BELLON
First, the RACT Standard provides in relevant part:
All emissions units are required to use
reasonably available control technology
(RACT) which may be determined for some
sources or source categories to be more
stringent than the applicable emission
limitations of any chapter of Title 173 WAC.
Where current controls are determined to be
less than RACT, the permitting authority
shall, as provided in RCW 70.94.154, define
RACT for each source or source category and
issue a rule or regulatory order requiring the
installation of RACT.
WAC 173-400-040(1). RACT is defined as “the lowest
emission limit that a particular source or source category is
capable of meeting by the application of control technology
that is reasonably available considering technological and
economic feasibility.” WAC 173-400-030(77). “Emissions
unit” is “any part of a stationary source or source which emits
or would have the potential to emit any pollutant subject to
regulation under the Federal Clean Air Act.” WAC 173-400-
030(29). As referenced in the RACT Standard, the Revised
Code of Washington (RCW) states in part that “[i]n
establishing or revising RACT requirements, ecology and
local authorities shall address, where practicable, all air
contaminants deemed to be of concern for that source or
source category.” RCW 70.94.154(5). Oil refineries qualify
as “sources” or “source categories.” See WAC 173-400-
030(80)–(81); RCW 70-94-030(22). Each of the five oil
refineries in Washington constitutes a “source” of “air
contaminants” subject to the state’s SIP. WAC 173-400-
040(1); RCW 70.94.154(1).
WASH. ENVTL. COUNCIL V. BELLON 11
Second, the Narrative Standard provides:
No person shall cause or allow the emission of
any air contaminant from any source if it is
detrimental to the health, safety, or welfare of
any person, or causes damage to property or
business.
WAC 173-400-040(6). The term “air contaminant,”
referenced in both the RACT and Narrative Standards, is
synonymous with “air pollutant” and is broadly defined in the
SIP to mean “dust, fumes, mist, smoke, other particulate
matter, vapor, gas, odorous substance, or any combination
thereof.” WAC 173-400-030(3); RCW 70.94.030(1). The
Washington Governor’s 2009 executive order declared that
“greenhouse gases are air contaminants.” Exec. Order 09-05.
The Supreme Court has also held that the sweeping definition
of “air pollutant” under the CAA encompasses carbon dioxide
and other greenhouse gases. Massachusetts, 549 U.S. at528–29; AEP, 131 S. Ct. at 2532–33.
The Agencies admit that they have never set or applied
RACT standards for GHG emissions at the Oil Refineries.
Plaintiffs insist, therefore, that the Agencies must do so
pursuant to the mandate in SIP. Defendants argue that
Washington’s SIP is not federally enforceable as to regulation
of greenhouse gases under RCW 70.94.154 because they are
not properly criteria pollutants with recognized NAAQS.
C. Procedural History
In March 2011, Plaintiffs filed their complaint against the
Agencies, asserting two claims under the CAA’s citizen-suit
provision, 42 U.S.C. § 7604(a)(1). Under Count I, Plaintiffs
12 WASH. ENVTL. COUNCIL V. BELLON
claim that the Agencies failed to establish RACT standards
for greenhouse gas emissions from the Oil Refineries, in
violation of the RACT Standard, WAC 173-400-040 and
RCW 70.94.154. Under Count II, Plaintiffs claim that the
Agencies have allowed the Oil Refineries to emit greenhouse
gases, thereby failing to protect the health, safety, and welfare
of Washingtonians, their property, and business, in violation
of the Narrative Standard, WAC 173-400-040(6).5 Plaintiffs
seek declaratory relief and an injunction requiring the
Agencies to set RACTs for GHG emissions from the Oil
Refineries.
In July 2011, Plaintiffs moved for summary judgment on
their claims. WSPA successfully moved to intervene as a
defendant, and filed a cross-motion for summary judgment.
WSPA further moved to strike several of Plaintiffs’ exhibits
and standing declarations. The Agencies moved to dismiss
the case under Federal Rule of Civil Procedure 12(b)(6).
In December 2011, the district court issued its order on
the parties’ dispositive motions. The court granted Plaintiffs’
motion for summary judgment on Count I, concluding that
the RACT provision plainly applies to greenhouse gases
emitted by the Oil Refineries. The court, however, dismissed
Plaintiffs’ Narrative claim as unenforceable because it
concluded the provision was overly broad and aspirational.
The court granted WSPA’s motion to strike several of
Plaintiffs’ exhibits as irrelevant, but otherwise denied it as to
Plaintiffs’ standing declarations. After additional briefing,
5
The Complaint cites to subsection (5) of WAC 173-400-040, instead
of subsection (6), but this is clearly a typographical error, since the quoted
statutory text is from the latter. Subsection (5) pertains to the regulation
of odors, which is not at issue in this case.
WASH. ENVTL. COUNCIL V. BELLON 13
the district court denied WSPA’s motion for reconsideration.
In March 2012, the district court issued its order on remedies
enjoining Defendants to determine RACT for the Oil
Refineries within 26 months. The parties timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. §§ 1291 and
1292(a)(1). We review de novo the district court’s
assumption of jurisdiction. Natural Res. Def. Council v. EPA,
542 F.3d 1235, 1241 (9th Cir. 2008) (NRDC). The
jurisdiction of the federal courts is limited to “cases” and
“controversies.” U.S. Const. art. III, § 2. “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ.
P. 12(h)(3).
DISCUSSION
Defendants contend for the first time on appeal that this
case must be dismissed for lack of Article III standing, or in
the alternative, because Plaintiffs lack statutory standing.
Although Defendants did not advance these objections below,
we may consider them here, since a jurisdictional defect is a
non-waivable challenge that may be raised at any time during
the proceedings, including on appeal. See United States v.
Hays, 515 U.S. 737, 742 (1995); Renee v. Duncan, 686 F.3d
1002, 1012 (9th Cir. 2012). We also have an independent
duty to assure that standing exists, irrespective of whether the
parties challenge it. Summers v. Earth Island Inst., 555 U.S.
488, 499 (2009).
14 WASH. ENVTL. COUNCIL V. BELLON
I. Standing – General Requirements
A plaintiff must demonstrate standing for each claim he
or she seeks to press and for each form of relief sought.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
The plaintiff also bears the burden of proof to establish
standing “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). While “[a]t the pleading
stage, general factual allegations of injury resulting from the
defendant’s conduct may suffice,” in responding to a
summary judgment motion, “the plaintiff can no longer rest
on such mere allegations, but must set forth by affidavit or
other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.” Id.(citation and quotes omitted); accord Gerlinger v.
Amazon.com Inc., 526 F.3d 1253, 1255–56 (9th Cir. 2008).
“A plaintiff’s basis for standing must affirmatively appear in
the record.” Salmon Spawning & Recovery Alliance v.
Gutierrez, 545 F.3d 1220, 1228 n.5 (9th Cir. 2008) (citation
and quotes omitted).
Where, as here, plaintiffs are organizations, they may
assert standing on behalf of their members as long as the
“members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in
the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000); see also NRDC,
542 F.3d at 1244.
In this case, Plaintiffs WEC and the Sierra Club are non-
profit conservation groups dedicated to environmental
WASH. ENVTL. COUNCIL V. BELLON 15
protection in Washington State. The WEC focuses on state
level policy-making and implementation. It consists of
roughly 3,500 member households and 55 member
organizations. Its members routinely enjoy recreation in the
North Cascades, Olympic, and Mount Rainer National Parks.
The Sierra Club, with approximately 20,000 members in
Washington, is dedicated to exploring, enjoying, and
protecting waterways, mountains, forests, sustainable
agriculture, air quality, and global and regional climates. The
Sierra Club regularly organizes outings for its members in
public places. In support of standing, three members of WEC
and three members of the Sierra Club each submitted
affidavits attesting to their current and future injuries
resulting from elevated levels of greenhouse gases. Thus, the
relevant inquiry is whether at least one member from each
group has established standing to sue in his or her right.
Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002,
1005 (9th Cir. 2011).
II. Constitutional Requirements
For Article III standing, a plaintiff must satisfy three
“irreducible constitutional minimum” requirements: (1) he or
she suffered an injury in fact that is concrete, particularized,
and actual or imminent; (2) the injury is fairly traceable to the
challenged conduct; and (3) the injury is likely to be
redressed by a favorable court decision. Lujan, 504 U.S. at560–61; see also NRDC, 542 F.3d at 1244.
A. Injury In Fact
Plaintiffs allege that Defendants’ failure to set and apply
RACT standards has contributed to greenhouse gas pollution
and caused their members to suffer recreational, aesthetic,
16 WASH. ENVTL. COUNCIL V. BELLON
economic, and health injuries, in violation of the RACT and
Narrative provisions. An environmental plaintiff may satisfy
the injury requirement by showing that the challenged activity
impairs his or her “economic interests or ‘[a]esthetic and
environmental well-being.’” Natural Res. Def. Council v.
EPA, 526 F.3d 591, 601 (9th Cir. 2008) (quoting Sierra Club
v. Morton, 405 U.S. 727, 734 (1972)); see also Friends of the
Earth, 528 U.S. at 183 (“[E]nvironmental plaintiffs
adequately allege injury in fact when they aver that they use
the affected area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the
challenged activity.” (citation and quotes omitted)). Injury
may also include the risk of future harm—i.e., “‘a connection
to the area of concern sufficient to make credible the
contention that the person’s future life will be less
enjoyable—that he or she really has or will suffer in his or her
degree of aesthetic or recreational satisfaction—if the area in
question remains or becomes environmentally degraded.’”
Ocean Advocates v. U.S. Army Corps. Eng’rs, 402 F.3d 846,
859 (9th Cir. 2005) (quoting Ecological Rights Found. v. Pac.
Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000)).
WEC and Sierra Club members have submitted
declarations attesting to specific aesthetic and recreational
injuries allegedly resulting from the Agencies’ failure to
control greenhouse gas emissions. Scott Stromatt, an officer
and long-time member of the Sierra Club, states that his
members’ enjoyment of outings to Washington’s natural
areas has and will be diminished because those “areas have
been impacted by climate change through changes in
precipitation patterns, reduction of glaciers, changes in
wildlife habitat, [and] increased risk of forest fire.” Stromatt
Decl. ¶¶ 5–6. For example, Terese Vanassche—a member
and volunteer of the Sierra Club for 20 years—is an avid
WASH. ENVTL. COUNCIL V. BELLON 17
snowshoer who routinely travels to Mt. Rainer, Mt. Shuksan
and Baker, Stevens Pass Lanham Lake, and the Wild Sky
Wilderness. Vanassche Decl. ¶ 3. She states that her “ability
to engage in snowshoeing has been diminished because of
elevated levels of greenhouse gases in the atmosphere,”
which have increased temperatures and reduced snow pack in
Washington. Id. ¶¶ 4–5. Due to reduced snow pack in 2008
and 2009, she was forced to either cancel snowshoeing and
cross-country ski trips or change their venue. Id. ¶ 4. She
states that future outings to those locations are threatened by
poor snow pack and high avalanche conditions. Id. ¶¶ 5–6.
Likewise, WEC members David Gorton and Jabez
Blumenthal are life-long skiers who are concerned that
increased alpine temperatures and decreased snow pack have
reduced and will reduce the viability of their favorite ski
spots at Snoqualmie Pass and shorten the ski season at those
locations. Gorton Decl. ¶¶ 14–15; Blumenthal Decl. ¶ 9. In
addition to skiing, Mr. Gorton enjoys backpacking at least
five times a year throughout the Cascades and the Olympics.
Gorton Decl. ¶ 16. He states that climate changes have
degraded and will degrade the habitat of native species,
thereby decreasing his enjoyment of the sub-alpine
environments near Crater Peak. Id. Mr. Blumenthal, too,
enjoys other recreational activities, including hiking,
mountaineering, and glacier climbing. He is concerned that
climate change will negatively affect his enjoyment of
climbing the glaciated volcanoes in Washington and Mt.
Rainier. Blumenthal Decl. ¶ 10.
WEC and Sierra Club members further state that their
properties have been damaged by climate change. For
example, Rodney Brown, a WEC officer and member, attests
that flooding from the Teanaway River has eroded his 40-acre
farmland. Brown Decl. ¶ 12. He is concerned that flooding
18 WASH. ENVTL. COUNCIL V. BELLON
and decreased water availability will further reduce the
benefits from and enjoyment of his property. Id. ¶¶ 13–14.
Mr. Gorton similarly states that flooding—particularly heavy
rains in 2008—has damaged his Seattle home and threatens
further harm to his property. Gorton Decl. ¶ 13. Mr.
Blumenthal also attests that his 2,000-acre ranch in Eastern
Washington has been, twice, burned by wildfires, charring his
once tree-lined ridge into “a row of black dead spikes.”
Blumenthal ¶¶ 11–13, 16. He fears that “as global climate
change worsens, the frequency and intensity of wildfires near
[his] property will increase,” and diminish the value and
enjoyment of his property. Id. ¶ 15.
Finally, Plaintiffs’ members claim that their or their
family’s health has been negatively affected by climate
changes. For instance, Aaron Robins, a member of the Sierra
Club, is an asthma patient who is concerned that his “health
is personally endangered by uncontrolled climate pollution
from oil refineries operating with outdated equipment and
processes.” Robins ¶ 8. Ms. Vanassche’s son also suffers
from muscular dystrophy that has diminished his capacity to
clear his lungs of air pollutants. She and her son live four
miles from two oil refineries emitting greenhouse gases in
Washington. Vanassche Decl. ¶ 7. She fears that higher air
temperatures and ozone pollution—exacerbated by global
warming—expose her son to increased respiratory problems.
Id. Ms. Vanassche has expended significant time and
resources in caring for her son while he suffers from air
quality-related ailments. Id.
Defendants do not dispute the accuracy of these
statements of injuries. Nor do they challenge their legal
sufficiency. For the purposes of this case, we assume without
deciding, that the declarations submitted by WEC and Sierra
WASH. ENVTL. COUNCIL V. BELLON 19
Club members have provided “specific facts,” Lujan,
504 U.S. at 561, of immediate and concrete injuries. Natural
Res. Def. Council, 526 F.3d at 601; Friends of the Earth,
528 U.S. at 183. Plaintiffs have therefore satisfied the first
prong under Lujan.
B. Causality
Plaintiffs allege that their injuries are causally linked to
the Agencies’ failure to set and apply RACT standards.
WSPA contends that the chain of causality between
Defendants’ alleged misconduct and their injuries is too
attenuated. WSPA argues that Plaintiffs do not, and cannot,
show causality. We agree.
To satisfy the causality element for Article III standing,
Plaintiffs must show that the injury is causally linked or
“fairly traceable” to the Agencies’ alleged misconduct, and
not the result of misconduct of some third party not before the
court. See Lujan, 504 U.S. at 560–61. “The line of causation
between the defendant’s action and the plaintiff’s harm must
be more than attenuated.” Native Vill. of Kivalina v.
ExxonMobil Corp., 696 F.3d 849, 867 (9th Cir. 2012)
(citations and quotes omitted), cert denied, 133 S. Ct. 2390(2013). A “causal chain does not fail simply because it has
several links, provided those links are not hypothetical or
tenuous and remain plausible.” Id. (citations, quotes, and
bracket omitted). Nor does standing require the defendant’s
action to be the sole source of injury. See Barnum Timber
Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011). Nevertheless,
“where the causal chain involves numerous third parties
whose independent decisions collectively have a significant
effect on plaintiffs’ injuries, . . . the causal chain is too weak
20 WASH. ENVTL. COUNCIL V. BELLON
to support standing.” Native Vill. of Kivalina, 696 F.3d at
867 (citations, quotes, and bracket omitted).
We assume without deciding that man-made sources of
GHG emissions are causally linked to global warming and
detrimental climate change. See Massachusetts, 549 U.S. at507–09; Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124,
1140 (9th Cir. 2011); 74 Fed. Reg. at 66524–66535.
Plaintiffs provide a litany of adverse environmental effects in
Washington, which Defendants do not dispute, and are
supported by various research reports: increased
temperatures, changes in precipitation and snow pack,
flooding and storm damages, increased wildfires, adverse
effects on agriculture and irrigation, disruptions to
ecosystems, decreases in forest productivity, among others.
The EPA, too, admonishes that “[e]ach additional ton of
greenhouse gases emitted commits us to further change and
greater risks.” 77 Fed. Reg. 22392, 22395 (Apr. 13, 2012)
(citation and quotes omitted).
We do not discount the gravity of these asserted
environmental effects or gainsay the EPA’s warning that
continuing greenhouse gas emissions creates greater risks of
harm. However, we may act only where we are granted
power to do so by the Constitution and applicable statutes and
regulations. Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 552 (2005). One such limitation on our power
to act is Article III standing. See Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541–42 (1986). Under Lujan’s
causality prong, Plaintiffs must show that a causal connection
exists between their asserted injuries and the conduct
complained of—i.e., the Agencies’ failure to set and apply
RACT standards. Therein lies the problem. Plaintiffs offer
only vague, conclusory statements that the Agencies’ failure
WASH. ENVTL. COUNCIL V. BELLON 21
to set RACT standards at the Oil Refineries contributes to
greenhouse gas emissions, which in turn, contribute to
climate-related changes that result in their purported injuries.
See, e.g., Vanassche Decl. ¶ 6 (“I fear that continuing
greenhouse gas emissions from industrial facilities and other
sources, including the oil refineries that operate in
Washington State, will contribute to further reductions of
winter snowpack in the region and make it more difficult or
impossible for me to engage in snowshoeing in the future.”);
Stromatt Decl. ¶ 7 (“[T]he failure of the Agencies to take the
actions described . . . will result in additional greenhouse gas
emissions in Washington State that will exacerbate changes
to the regional and global climates.”); Gorton Decl. ¶ 17
(“The failure of the clean air agencies to require [RACT] that
can result in reductions to greenhouse gas emissions at the oil
refineries has harmed me, and other WEC members, by
failing to reduce and control air pollutant emissions that cause
or contribute to climate change and its negative impacts on
my property, my health, and my way of life.”). Plaintiffs’
causal chain—from lack of RACT controls to Plaintiffs’
injuries—consists of a series of links strung together by
conclusory, generalized statements of “contribution,” without
any plausible scientific or other evidentiary basis that the
refineries’ emissions are the source of their injuries. While
Plaintiffs need not connect each molecule to their injuries,
simply saying that the Agencies have failed to curb emission
of greenhouse gases, which contribute (in some undefined
way and to some undefined degree) to their injuries, relies on
an “‘attenuated chain of conjecture’ insufficient to support
standing.” Salmon Spawning, 545 F.3d at 1228 (quoting
Ecological Rights Found., 230 F.3d at 1152). Plaintiffs thus
have failed to satisfy their evidentiary burden of showing
22 WASH. ENVTL. COUNCIL V. BELLON
causality at the summary judgment stage. See Lujan,
504 U.S. at 561–62.6
Indeed, attempting to establish a causal nexus in this case
may be a particularly challenging task. This is so because
there is a natural disjunction between Plaintiffs’ localized
injuries and the greenhouse effect. Greenhouse gases, once
emitted from a specific source, quickly mix and disperse in
the global atmosphere and have a long atmospheric lifetime.
Current research on how greenhouse gases influence global
climate change has focused on the cumulative environmental
effects from aggregate regional or global sources. But there
is limited scientific capability in assessing, detecting, or
measuring the relationship between a certain GHG emission
source and localized climate impacts in a given region. As
the U.S. Geological Survey observed, “[i]t is currently
beyond the scope of existing science to identify a specific
source of CO2 emissions and designate it as the cause of
specific climate impacts at an exact location.” Ltr. from
Director, U.S. Geological Survey to Director, U.S. Fish &
Wildlife Service, The Challenges of Linking Carbon
Emissions, Atmospheric Greenhouse Gas Concentrations,
Global Warming, and Consequential Impacts (May 14,
2008). Thus, according to the unchallenged declaration of
WSPA’s expert, “it is not possible to quantify a causal link,
6
In a different context, the Second Circuit held that to satisfy the
causality requirement, “[i]t is sufficient that [plaintiffs] allege that
Defendants’ [GHG] emissions contribute to their injuries.” See
Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 347 (2d Cir. 2009),
rev’d on non-standing grounds by AEP, 131 S. Ct. at 2450. Contrary to
Plaintiffs’ argument, however, that ruling is unpersuasive here because the
Second Circuit case involved a different procedural posture (a motion to
dismiss, rather than summary judgment) and state entities—both of which
permit less strenuous levels of proof to achieve standing. See infra n.8.
WASH. ENVTL. COUNCIL V. BELLON 23
in any generally accepted scientific way, between GHG
emissions from any single oil refinery in Washington, or the
collective emissions of all five oil refineries located in
Washington, and direct, indirect or cumulative effects on
global climate change in Washington or anywhere else.”
Umenhofer Decl. ¶ 8. We have also explained in a case
involving potential GHG emissions from aviation activities
that the causal chain between those activities and localized
environmental harm is untenable. See Barnes, 655 F.3d at
1140 (stating that aviation activities accounting for .03% of
U.S.-based greenhouse gas emissions do “not translate into
locally-quantifiable environmental impacts given the global
nature of climate change”).
Moreover, there are numerous independent sources of
GHG emissions, both within and outside the United States,
which together contribute to the greenhouse effect. As we
noted in Native Vill. of Kivalina, “global warming has been
occurring for hundreds of years and is the result of a vast
multitude of emitters worldwide whose emissions mix
quickly, stay in the atmosphere for centuries, and, as a result,
are undifferentiated in the global atmosphere.” 696 F.3d at
868. Here, the five oil refineries in Washington emit 5.94
metric tons of carbon dioxide equivalents, and are responsible
for 5.9% of GHG emissions in Washington. According to
WSPA’s expert, however, the effect of this emission on
global climate change is “scientifically indiscernible,” given
the emission levels, the dispersal of GHGs world-wide, and
“the absence of any meaningful nexus between Washington
refinery emissions and global GHG concentrations now or as
projected in the future.” Umenhofer Decl. ¶ 10. Because a
multitude of independent third parties are responsible for the
changes contributing to Plaintiffs’ injuries, the causal chain
24 WASH. ENVTL. COUNCIL V. BELLON
is too tenuous to support standing. Native Vill. of Kivalina,
696 F.3d at 867.
In response, Plaintiffs argue that where, as here, they seek
to enforce a specific regulatory obligation, a causal
connection is inferred. That argument is unavailing. In
NRDC, we observed in the context of the Clean Water Act
that “[w]here Congress has expressed the need for specific
regulations relating to the environment, that expression
supports an inference that there is a causal connection
between the lack of those regulations and adverse
environmental effects.” 542 F.3d at 1248 (emphasis added).
Plaintiffs maintain that because the RACT provision applies
to GHG emissions, we must infer a causal link between the
Agencies’ failure to set RACT standards and adverse
environmental effects. But even assuming—without
deciding—that Washington’s SIP mandates control of GHG
emissions, the critical inquiry for standing purposes is
whether the Agencies’ alleged misconduct causes injury to
Plaintiffs. Injury to the environment alone is not enough to
satisfy the causation prong for standing. NRDC, 542 F.3d at
1245 (“The injury to the plaintiff, not to the environment, is
the relevant showing.”). Here, Plaintiffs must still establish
that their specific, localized injuries are fairly traceable to the
Agencies’ failure to set RACT standards for the GHG
emissions from the Oil Refineries. As discussed above,
Plaintiffs fail to satisfy this burden because the record shows
no evidentiary support establishing this causal nexus.
Nor can we extend—as Plaintiffs urge—the holding of
Massachusetts v. EPA to the present circumstances.7 In that
7
During oral argument, Plaintiffs identified Massachusetts v. EPA as the
strongest case supporting their position.
WASH. ENVTL. COUNCIL V. BELLON 25
case, a group of states, local governments, and private
organizations petitioned for review of an EPA order denying
a rulemaking petition for regulation of GHG emissions from
new motor vehicles under CAA § 202. Massachusetts,
549 U.S. at 505. As a threshold issue, the Court determined
that the plaintiffs had Article III standing because at least one
petitioner—Massachusetts—had standing to seek review. Id.at 516–26. The Court, however, relaxed the standing
requirement for Massachusetts based on two factors. First,
the Court noted that Massachusetts was exercising a
procedural right to challenge the rejection of its rulemaking
petition, which permitted it to “assert that right without
meeting all the normal standards for redressability and
immediacy.” Id. at 517–18 (citation and quotes omitted).
Second, the Court emphasized at length, “the special position
and interest of Massachusetts” as a “sovereign State.” Id. at
518. Quoting Georgia v. Tennessee Copper Co., 206 U.S.
230, 237 (1907), a case where Georgia sued to protect its
citizens from air pollution emanating from outside its borders,
the Court remarked that it has long recognized the interests of
states, in their quasi-sovereign capacity, as “‘independent of
and behind the titles of its citizens, in all the earth and air
within its domain. It has the last word as to whether its
mountains shall be stripped of their forests and its inhabitants
shall breathe pure air.’” Id. at 518–19. “Just as Georgia’s
independent interest ‘in all the earth and air within its
domain’ supported federal jurisdiction a century ago, so too
does Massachusetts’ well-founded desire to preserve its
sovereign territory today.” Id. at 519. The Court stressed that
these two factors entitled Massachusetts to “special
solicitude” in its standing analysis. Id. at 520; see also Am.
Elec. Power Co., 582 F.3d at 336–38 (discussing the effects
of Massachusetts on the standing analysis). With that in
mind, the Court determined that Massachusetts satisfied the
26 WASH. ENVTL. COUNCIL V. BELLON
Lujan requirements for standing. Specifically, with regard to
causality, the Court rejected the EPA’s argument that GHG
emissions from new motor vehicles contribute too
insignificantly to the petitioners’ climate change-related
injuries to justify standing. Id. at 523–25. The Court
considered evidence that U.S. motor-vehicle emissions
constituted 1.7 billon metric tons in 1999 alone, or over 6%
of world-wide carbon dioxide emissions—which it concluded
constitutes a “meaningful contribution” to GHG
concentrations, and thus, to global warming. Id. at 525.
In contrast to Massachusetts v. EPA, the present case
neither implicates a procedural right nor involves a sovereign
state. Rather, Plaintiffs are private organizations, and
therefore cannot avail themselves of the “special solicitude”
extended to Massachusetts by the Supreme Court. See
Amnesty Int’l USA v. Clapper, 667 F.3d 163, 197 n.2 (2d Cir.
2011) (Livingston, J., dissenting from denial of rehearing en
banc) (observing that the application of Massachusetts to the
case was limited because the two factors warranting “special
solicitude”—a procedural right and sovereign status—were
absent); Richard H. Fallon, Jr., et al., Hart and Wechsler’s
The Federal Courts and the Federal System 146 (6th ed.
2009) (suggesting Massachusetts may be “easily
distinguishable on the ground that it involved ‘special
solicitude’ for a state plaintiff protecting its quasi-sovereign
interests”); Calvin Massey, State Standing After
Massachusetts v. EPA, 61 Fla. L. Rev. 249, 253, 260–68
(2009) (interpreting the standing analysis in Massachusetts as
only applying to state litigants to prosecute claims that would
not be cognizable by individual plaintiffs).
But even if we assume that Plaintiffs’ members are
entitled to a comparable relaxed standard, the extension of
WASH. ENVTL. COUNCIL V. BELLON 27
Massachusetts to the present circumstances would not be
tenable. As true of the plaintiffs in Massachusetts, 549 U.S.
at 523, the Agencies here do not challenge the causal link
between man-made GHG emissions and global warming. At
a minimum, therefore, the Agencies do not dispute that the
lack of controls at the Oil Refineries “contribute” to
Plaintiffs’ injuries. But Plaintiffs further insist that any and
all contribution of greenhouse gases must be curbed and that
this justifies standing. See, e.g., Blumenthal Decl. ¶ 17 (“All
greenhouse gas emissions worsen the global climate change
problem, regardless of where on the planet they are emitted,
and we need to reduce all the emissions that we can, wherever
we can.”). The Supreme Court, however, did not endorse
such a position, even as it acknowledged that it is error to
assume that “a small incremental step, because it is
incremental, can never be attacked in a federal judicial
forum.” 549 U.S. at 524. Rather, the Court observed that the
GHG emission levels from motor vehicles were a
“meaningful contribution” to global GHG concentrations,
given that the U.S. motor-vehicle sector accounted for 6% of
world-wide carbon dioxide emissions. Here, the GHG
emissions are from five oil refineries in Washington, making
up 5.9% of emissions in Washington. While this may be a
significant portion of state emissions, Plaintiffs do not
provide any evidence that places this statistic in national or
global perspective to assess whether the refineries’ emissions
are a “meaningful contribution” to global GHG levels. Given
the lack of evidence on this point and the fact that Plaintiffs
are not sovereigns, we cannot logically apply the reasoning
set forth in Massachusetts to this case.8
8
The Supreme Court’s ruling on standing in AEP does not change our
analysis. The Court in AEP summarily affirmed, by an equally divided
Court, that the court below had jurisdiction and proceeded to the merits.
28 WASH. ENVTL. COUNCIL V. BELLON
C. Redressability
Plaintiffs claim that their injuries would be redressed by
a court order requiring Defendants to control greenhouse gas
emissions from the Oil Refineries. We agree with WSPA that
Plaintiffs fail to satisfy this prong for many of the same
reasons they fail to meet the causality requirement.
The Supreme Court has clarified that the “fairly
traceable” and “redressability” components for standing
overlap and are “two facets of a single causation
requirement.” Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)
(citation and quotes omitted). The two are distinct insofar as
causality examines the connection between the alleged
misconduct and injury, whereas redressability analyzes the
connection between the alleged injury and requested judicial
relief. Id. Redressability does not require certainty, but only
a substantial likelihood that the injury will be redressed by a
AEP, 131 S. Ct. at 2535. Four of the Justices ruled that under
Massachusetts, “which permitted a State to challenge EPA’s refusal to
regulate greenhouse gas emissions,” at least some plaintiffs in that
case—which included eight states—had Article III standing to sue electric
power companies for common law nuisance arising from their GHG
emissions. Id. (emphasis added). The AEP plaintiffs alleged that the
electric companies were the five largest emitters of carbon dioxide in the
United States, collectively responsible for 650 million tons
annually—equivalent to 25% of emissions from the domestic electric
power sector, 10% of emissions from all human activities, and 2.5% of all
man-made emissions worldwide. Id. at 2533–34. As in Massachusetts,
however, at least some of the plaintiffs in AEP were sovereign states that
were entitled to “special solicitude” for standing purposes. Moreover, the
AEP plaintiffs, at the pleading stage, made claims specifying the
defendants’ contribution to global GHG levels. In contrast, Plaintiffs here
fail to provide any allegation or evidence of global GHG levels at the
summary judgment stage.
WASH. ENVTL. COUNCIL V. BELLON 29
favorable judicial decision. Wolfson v. Brammer, 616 F.3d
1045, 1056 (9th Cir. 2010).
Here, as a preliminary matter, the record is devoid of any
evidence that RACT standards would curb a significant
amount of GHG emissions from the Oil Refineries.
According to WSPA’s uncontested evidence, the Director of
Ecology’s air program explained that when the Governor of
Washington issued her climate change executive order in
2009, Ecology considered whether to use the RACT tool to
reduce greenhouse gas emissions. Ecology ultimately
decided not to pursue controls on its own initiative in light of
its conclusion that “RACT would likely not result in
meaningful greenhouse gas reductions because RACT is a
low bar and many sources are likely already meeting or
exceeding RACT.” Clark Decl. ¶ V. Instead, Ecology
decided to use its “limited resources to pursue other efforts to
reduce greenhouse gas emissions that presented a greater
likelihood of meaningful greenhouse gas reductions.” Id.Even if we assume that RACT standards would eliminate
all GHG emissions from the Oil Refineries, Plaintiffs have
not submitted any evidence that an injunction requiring
RACT controls would likely reduce the pollution causing
Plaintiffs’ injuries. To the contrary, the evidence below
supports the opposite conclusion. It is undisputed that GHG
emissions is not a localized problem endemic to Washington,
but a global occurrence. Because the effect of collective
emissions from the Oil Refineries on global climate change
is “scientifically indiscernible,” Umenhofer Decl. ¶ 10,
Plaintiffs’ injuries are likely to continue unabated even if the
Oil Refineries have RACT controls.
30 WASH. ENVTL. COUNCIL V. BELLON
Plaintiffs nevertheless insist that pursuant to
Massachusetts v. EPA, they need not show that RACT
controls will completely eliminate greenhouse gas pollution
or reduce emissions by a specific amount. Plaintiffs argue
that it is enough that some control of greenhouse gas
pollution causing their injury is contemplated by the RACT
controls. Again, Plaintiffs’ reliance on Massachusetts is
misplaced. Plaintiffs attempt to transplant the relaxed
standing rule the Court carved out for a sovereign state to
their own circumstances. Plaintiffs are not sovereign states
and thus the Court’s standing analysis does not apply.
CONCLUSION
Because Plaintiffs have not met their burden in satisfying
the “irreducible constitutional minimum” requirements for
Article III standing under either the causality or redressability
prong discussed in Lujan, the district court lacked jurisdiction
to hear the parties’ dispositive motions on the merits. We
thus VACATE the district court’s order on the parties’
dispositive motions, and REMAND to the district court with
instructions that the action be dismissed for lack of subject
matter jurisdiction. Maya v. Centex Corp., 658 F.3d 1060,
1067 (9th Cir. 2011).
VACATED and REMANDED, with instructions.