Washington Environmental Counc, et al v. Theodore Sturdevant, et al

Filing

Filed Order for PUBLICATION (ANDREW J. KLEINFELD, MILAN D. SMITH, JR. and N. RANDY SMITH) (Concurrence by Judge Milan D. Smith, Jr.; Dissent by Judge Gould)A judge of this court made a sua sponte call for a vote on rehearing this case en banc, pursuant to General Order 5.4(c)(3), but a majority of the nonrecused active judges of the court failed to vote in favor of rehearing this case en banc. Rehearing en banc is DENIED. [8962224] [12-35323, 12-35324, 12-35358]

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON ENVIRONMENTAL
COUNCIL; SIERRA CLUB, Washington
State Chapter,
Plaintiffs-Appellees,

No. 12-35323
D.C. No.
2:11-cv-00417MJP

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
COUNCIL; SIERRA CLUB, Washington
State Chapter,
Plaintiffs-Appellees,
v.
MAIA D. BELLON; MARK
ASMUNDSON, Director, Northwest

No. 12-35324
D.C. No.
2:11-cv-00417MJP

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Clean Air Agency, in his official
capacity; CRAIG T. KENWORTHY,
Defendants,
and
WESTERN STATES PETROLEUM
ASSOCIATION,
Intervenor-Defendant–Appellant.

WASHINGTON ENVIRONMENTAL
COUNCIL; SIERRA CLUB, Washington
State Chapter,
Plaintiffs-Appellants,

No. 12-35358
D.C. No.
2:11-cv-00417MJP

v.
MARK ASMUNDSON, Director,
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.

ORDER

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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 February 3, 2014
Before: Andrew J. Kleinfeld, Milan D. Smith, Jr.,
and N. Randy Smith, Circuit Judges.
Order;
Concurrence by Judge Milan D. Smith, Jr.;
Dissent by Judge Gould

SUMMARY*

Environmental Law
The panel filed an order denying rehearing en banc in an
action under the Clean Air Act.
In its opinion, the panel had vacated the district court’s
judgment and 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.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Concurring in the denial of rehearing en banc, Judge M.
Smith, joined by Judge N.R. Smith, wrote that the panel’s
holding was compelled by Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992), which established stringent standing
requirements for private litigants seeking to challenge the
government’s regulation of third parties.
Dissenting from the denial of rehearing en banc, Judge
Gould, joined by Judges Wardlaw and Paez, wrote that the
panel’s opinion was overbroad and employed unduly
restrictive language to foreclose citizen suits seeking to use
the Clean Air Act to fight global warming. Judge Gould
wrote that just as a state has Article III standing to sue the
federal government to encourage federal action to stem global
warming, so too may individuals or environmental
organizations sue states to encourage state action for the same
purpose.

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/CrossAppellants.

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Jeffrey W. Leppo (argued), Matthew Cohen, and Jason T.
Morgan, Stoel Rives LLP, Seattle, Washington, for
Intervenor-Defendant-Appellant.

ORDER
A judge of this court made a sua sponte call for a vote on
rehearing this case en banc, pursuant to General Order
5.4(c)(3), but a majority of the nonrecused active judges of
the court failed to vote in favor of rehearing this case en
banc.1
Rehearing en banc is DENIED.

M. SMITH, Circuit Judge, with whom N.R. SMITH, Circuit
Judge, joins, concurring with the denial of rehearing en banc:
A majority of this court’s active, nonrecused judges has
wisely declined to vote in favor of rehearing this case en
banc.
Our holding in this case is compelled by the Supreme
Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992). While Judge Gould clearly favors a different
result, his dissent ignores the facts before us, and fails to
acknowledge the clear precedent by which we are bound. I
offer a few brief thoughts in response to his dissent.

1

Judges O’Scannlain, Graber, McKeown, and Christen were recused.

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1. Judge Gould’s dissent fails to distinguish Lujan,
which established stringent standing requirements for private
litigants seeking to challenge the government’s regulation of
third parties. Lujan, 504 U.S. at 561–69.
In Lujan, environmental groups challenged federal
regulations that limited the reach of the Endangered Species
Act (ESA), and they sought an injunction requiring the
Secretary of the Interior to promulgate a new regulation.
Lujan, 504 U.S. at 558–59. The Supreme Court held that the
Lujan plaintiffs lacked standing. The Court explained: “when
the plaintiff is not himself the object of the government action
or inaction he challenges, standing . . . is ordinarily
substantially more difficult to establish.” Id. at 562 (internal
quotation marks omitted). This is so because when “a
plaintiff’s asserted injury arises from the government’s
allegedly unlawful regulation (or lack of regulation) of
someone else . . . causation and redressibility ordinarily hinge
on the response of the regulated (or regulable) third party to
the government action or inaction—and perhaps on the
response of others as well.” Id.
Accordingly, where a plaintiff seeks to compel the
government to regulate a third party, the plaintiff can only
establish standing by demonstrating: (1) that injunctive relief
will cause the government to promulgate new regulations in
the plaintiff’s favor; and (2) that these regulations will
necessarily cause the relevant third parties to adjust their
conduct in a manner that will redress the plaintiff’s alleged
injury. Id. On a motion for summary judgment, a party
cannot make this showing through “mere allegations, but
must set forth by affidavit or other evidence specific facts.”

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Id. at 561 (internal quotation marks omitted). Applying this
standard, the Supreme Court held that the Lujan plaintiffs
lacked standing because, even if the Secretary of the Interior
revised his regulation, the plaintiffs failed to show that such
revisions would actually change the conduct of third parties.
Id. at 563, 568–69.
2. In this case, Plaintiffs sought an injunction requiring
the state of Washington to promulgate regulations (RACT
standards) governing five oil companies’ greenhouse gas
emissions. Accordingly, under Lujan, 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.
Not only did Plaintiffs fail to introduce evidence
satisfying any of these factors, but the state also introduced
evidence that “RACT [standards] 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.” Accordingly, we held that Plaintiffs did
not meet their summary judgment burden under Lujan.

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3. Judge Gould’s dissent misconstrues Massachusetts v.
EPA (Mass. v. EPA), 549 U.S. 497 (2007), and ignores one of
its key elements. Judge Gould argues that, because the
Supreme Court held that the state of Massachusetts had
standing in Mass. v. EPA, the Washington Environmental
Plaintiffs must have standing, as well. He asserts that: (1) in
Mass. v. EPA, the Supreme Court found a causal connection
between certain greenhouse gas emissions and the state of
Massachusetts’ injuries resulting from global climate change;
(2) the Washington Environmental Plaintiffs allege that
certain greenhouse gas emissions have caused them injuries
resulting from global climate change; therefore (3) the
Washington Environmental Plaintiffs must have Article III
standing. The Supreme Court’s reasoning does not support
Judge Gould’s syllogism.
While Mass. v. EPA held that Massachusetts established
a causal connection between certain greenhouse gas
emissions and its environmental injuries, it expressly applied
a relaxed standing analysis based on two crucial
characteristics of that case: (1) the asserted injury was an
alleged procedural violation, and (2) the action was brought
by a sovereign state. Mass. v. EPA, 549 U.S. at 517–20.
Neither factor is present here.
While Judge Gould suggests that Mass. v. EPA’s
extensive discussion regarding sovereign states was mere
musing, he does not even attempt to respond to the fact that,
in Mass. v. EPA, the state asserted a procedural injury, rather
than a substantive injury. The Clean Air Act (CAA) grants

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citizens the right to file rulemaking petitions with the EPA,
and it “recognize[s] a concomitant procedural right to
challenge the rejection of [a] rulemaking petition . . . .” Mass.
v. EPA, 549 U.S. at 519–20; see also 42 U.S.C. § 7607(b)(1).
In Mass. v. EPA, the state of Massachusetts alleged that the
EPA violated the state’s procedural rights by arbitrarily and
capriciously denying its rulemaking petition. Unlike the
Lujan and Washington Environmental plaintiffs, the state of
Massachusetts did not seek an injunction requiring the EPA
to promulgate a new regulation. Massachusetts simply
sought an order requiring the EPA to reconsider its
rulemaking petition under the appropriate legal standard.
In holding that Massachusetts had standing, the Supreme
Court explained that a litigant can “assert [a procedural] right
without meeting all of the normal standards for redressibility
and immediacy.” Id. at 517–18 (internal quotation marks
omitted). Unlike parties who assert substantive injuries, a
litigant “who alleges [a] deprivation of a procedural
protection . . . never has to prove that if he [] receive[s] the
procedure the substantive result would [be] altered.” Id. at
518. Importantly, after holding that Massachusetts had
standing, the Supreme Court merely ordered that, on remand,
the EPA reconsider the state’s rulemaking petition and
“ground its reasons for action or inaction in the statute.” Id.
at 535. It is not difficult to see why the “the normal standards
for redressibility and immediacy” would be relaxed in a case
involving such limited relief. But we have never extended
this relaxed standard to cases, such as this, where litigants fail
to invoke a statute’s procedural provisions and instead seek
substantive relief in the form of an injunction requiring the
government to promulgate particular regulations.

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4. Judge Gould suggests that our opinion erects new and
inappropriate barriers to environmental litigation. Not so.
Our decision rests on a straightforward application of Lujan
and Mass. v. EPA. The opinion does nothing to restrict
environmental litigation beyond those limitations already
established by the Supreme Court. And the opinion leaves
open the many doors that previously existed under our case
law for governmental entities and private parties to litigate
with respect to injuries resulting from global climate change.
See, e.g., 42 U.S.C. § 7477 (establishing that “[the Federal
Government] shall, and a State may, take such measures,
including . . . seeking injunctive relief, as necessary to
[enforce the CAA]”); Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–88 (2000)
(establishing that private plaintiffs have standing to seek
injunctive relief and civil damages for Clean Water Act
violations, where the plaintiffs presented “affidavits and
testimony” establishing each element of Article III standing);
Mass. v. EPA. at 518–20 (establishing that sovereigns are
entitled to “special solicitude in [the Supreme Court’s]
standing analysis” with respect to environmental injuries);
Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d
961, 970–71 (9th Cir. 2003) (establishing standing for
citizens to allege procedural violations of the National
Environmental Policy Act’s notice and comment
requirements and the ESA’s consultation and biologicalassessment requirements). Judge Gould’s concerns regarding
the breadth of our opinion are unfounded.
5. Finally, I am perplexed by Judge Gould’s assertion
that our opinion “interferes with the principle that individual
states can experiment on a tough problem.” While Judge
Gould invokes Justice Brandeis’ famous words celebrating
states’ prerogative to “serve as [] laborator[ies] . . . [to] try

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novel social and economic experiments,” New State Ice Co.
v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting), those words are completely inapposite here.
This is not a case in which private individuals seek to
preclude novel state action. This is a case in which Plaintiffs
seek injunctive relief compelling a state to promulgate
particular regulations that they claim are required by federal
law. Despite Judge Gould’s suggestion to the contrary, no
one (other than Plaintiffs) seeks to interfere with
Washington’s ability to “experiment on a tough problem.” If
anything, our application of Lujan’s rigorous standing
requirement safeguards Washington’s power to do so.
For these reasons, and those more fully discussed in our
opinion, I concur with the decision of the majority of this
court’s active, nonrecused judges to deny rehearing en banc.

GOULD, Circuit Judge, with whom WARDLAW and PAEZ,
Circuit Judges, join, dissenting from the denial of rehearing
en banc:
I regret that a majority of our court’s active, nonrecused
judges has not decided that the panel’s overbroad opinion,
which employs unduly restrictive language to foreclose
citizen suits seeking to use the Clean Air Act to fight global
warming, warrants rehearing en banc.
The panel concludes that because the plaintiff
environmental organizations “are not sovereigns,” the
reasoning of the United States Supreme Court’s decision in
Massachusetts v. EPA, 549 U.S. 497 (2007), “cannot

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logically apply . . . to this case,” Bellon, 732 F.3d at 1146.
Thus, and in a way not even favored by the prevailing party,1
the panel has essentially read private citizens out of the
equation when it comes to using courts to address global
warming.
The majority’s argument—whose logical
conclusion is that non-state entities categorically lack
standing to use the Clean Air Act to compel state action on
global warming—disregards Supreme Court precedent,
makes bad law for our circuit, and harms the public.
The panel distinguishes Bellon from the Supreme Court’s
decision in Massachusetts v. EPA, which held, among other
things, that Massachusetts had standing to petition for review
of an EPA order that denied a petition for rulemaking under
the Clean Air Act to regulate greenhouse gas emissions from
motor vehicles. 549 U.S. at 518–20. As part of its support
for standing, the Court in that case noted that Massachusetts,
as a sovereign state, was “entitled to special solicitude in our
standing analysis.” Id. at 520.

1

The State of Washington, which prevailed before the panel, was asked
to provide its views on en banc rehearing. Naturally, it did not want en
banc rehearing and a new panel, but it had these negative comments about
the panel decision: “[T]he panel may want to rehear the matter to
determine whether its decision contains unnecessarily broad dicta . . . .”
The State of Washington added: “[T]he panel’s opinion . . . includes dicta
suggesting that it might be difficult for private plaintiffs ever to establish
causation in a climate change lawsuit.” Defendant-Appellant Maia
Bellon’s Brief on Whether Case Should Be Reheard En Banc at 1-2,
Wash. Envtl. Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) (Nos. 1235323, 12-35324, & 12-35358).

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The Bellon panel relies on this “special solicitude”
language to reach its ill-conceived decision that Washington
environmental organizations lack standing to use the Clean
Air Act to compel state and regional agencies to regulate
greenhouse gas emissions from the state’s oil refineries. See
Bellon, 732 F.3d at 1145 (“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.”). The panel chastises the environmental
organizations for “attempt[ing] to transplant the relaxed
standing rule the Court carved out for a sovereign state” in
Massachusetts v. EPA to their circumstances, and concludes
that “Plaintiffs are not sovereign states and thus the Court’s
standing analysis does not apply.” Id. at 1147.
Massachusetts v. EPA, in my view, does not mean that
only states have standing for environmental challenges
relating to global warming. The Supreme Court’s reasoning
endorsed the principle that causation and redressability exist,
independent of sovereign status, when some incremental
damage is sought to be avoided. Accordingly, Massachusetts
v. EPA also confers standing upon individuals seeking to
induce state action to protect the environment.
Although the panel stresses the “special solicitude”
language of Massachusetts v. EPA, it ignores the logic of the
Supreme Court’s reasoning. EPA argued that “its decision
not to regulate greenhouse gas emissions from new motor
vehicles contributes so insignificantly to petitioners’ injuries

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that the Agency cannot be haled into federal court to answer
for them.” Massachusetts v. EPA, 549 U.S. at 523. In other
words, EPA argued, there existed no “realistic possibility”
that the marginal benefit of the regulation Massachusetts
requested “would mitigate global climate change” to an
extent that would remedy the injury alleged, especially in
light of “predicted increases in greenhouse gas emissions
from developing nations” like India and China. Id. at
523–24. EPA contended that because Massachusetts could
not prove that EPA’s decision not to regulate greenhouse gas
emissions from new cars and trucks caused its climate
change-related injuries, Massachusetts lacked standing to
bring its suit. Id. at 523–25.
The Supreme Court squarely rejected this argument:
“EPA overstates its case. Its argument rests on the erroneous
assumption that a small, incremental step, because it is
incremental, can never be attacked in a federal judicial
forum.” Id. at 524. Because agencies “do not generally
resolve massive problems in one fell regulatory swoop,” the
Court concluded that Massachusetts had standing to file its
suit compelling EPA to issue the regulation, even though
“regulating motor-vehicle emissions will not by itself reverse
global warming.”
Id. at 524–25.
Similarly, the
environmental organizations here, by compelling the State of
Washington to act, could encourage incremental change that,
per the logic of Massachusetts v. EPA, is sufficient for
causation and redressability.
The Bellon panel ignores the Supreme Court’s reasoning.
First, it argues that “there are numerous independent sources

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of GHG emissions, both within and outside the United States,
which together contribute to the greenhouse effect.” Bellon,
732 F.3d at 1144. This is true but not controlling. The
Supreme Court has said that consideration of other countries’
emissions is not relevant to our evaluation of climate changerelated injuries. See Massachusetts v. EPA, 549 U.S. at
525–26 (“Nor is it dispositive that developing countries . . .
are poised to increase greenhouse gas emissions substantially
over the next century: A reduction in domestic emissions
would slow the pace of global emissions increases, no matter
what happens elsewhere.”). Second, the panel decides that
the environmental organizations’ “causal chain is too tenuous
to support standing” because “a multitude of independent
third parties are responsible for the changes contributing to
[their] injuries” and because the greenhouse gas emissions at
issue make up only 5.9 percent of emissions in Washington.
Bellon, 732 F.3d at 1143–46. This is true but irrelevant.
“That a first step might be tentative does not by itself support
the notion that federal courts lack jurisdiction to determine
whether that step conforms to law.” Massachusetts v. EPA,
549 U.S. at 524.
The panel concedes that the emissions at issue here “may
be a significant portion of state emissions.” Bellon, 732 F.3d
at 1145–46. And yet it decides that the environmental
organizations lack standing because of a dearth of evidence
showing that emissions from the five oil refineries constitute
a “meaningful contribution” to global greenhouse gas levels.
See id. at 1146 (quoting Massachusetts v. EPA, 549 U.S. at
525). The panel thus imposes on the environmental
organizations a mandate to show some unidentified threshold
of emissions before they may bring their suit. In so doing, the

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panel forecloses citizen suits seeking to use the Clean Air Act
to compel states to act to fight global warming if those suits
are brought by any non-state entity, ignoring the Supreme
Court’s reasoning in Massachusetts v. EPA.
Limiting the reasoning of Massachusetts v. EPA to cases
involving sovereign states is a mistake that will harm the
public. The panel’s opinion unwisely requires courts to deny
standing to any non-state plaintiff seeking to enforce the
Clean Air Act’s provisions in the effort to fight global
warming, and relegates judges—and the general public—to
the sidelines as climate change progresses. In my view, as
our planet warms and our oceans rise, individual citizens
should have standing to urge their states to take corrective
incremental actions to combat global warming.
By
preventing such suits, the panel’s opinion interferes with the
principle that individual states can experiment on a tough
problem. As Justice Brandeis recognized: “It is one of the
happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try
novel social and economic experiments without risk to the
rest of the country.” New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932) (Brandeis, J., dissenting).2 In my view,
states can take significant steps to slow or stop global
warming by reducing greenhouse gas emissions. And just as
a state has Article III standing to sue the federal government
2

The concurrence of Judge M. Smith argues that Justice Brandeis’s
dissent in New State Ice Co. v. Liebmann is “completely inapposite” here.
But because the panel opinion stops citizens from using litigation to prod
their states into action against global warming, the opinion effectively
interferes with the ability of states to experiment with solutions. Absent
the type of public pressure that can arise through litigation, it might be
expected that state responses to the threat of global warming will be less
forceful and less frequent.

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to encourage federal action to stem global warming, see
Massachusetts v. EPA, 549 U.S. at 521, so too may
individuals or environmental organizations sue states to
encourage state action for the same purpose. The panel’s
opinion sadly stands in the way. I respectfully dissent from
our failure to rehear this case en banc.3

3

The concurrence of Judge M. Smith urges that Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), controls this case and was not given enough
weight in my analysis. Judge M. Smith’s opinion implies that no plaintiffs
except states can go to court challenging global warming because of
causation and redressability concerns. See Bellon, 732 F.3d at 1147
(holding that Massachusetts v. EPA, 549 U.S. 497 (2000), is inapplicable
to this case because “Plaintiffs are not sovereign states and thus the
Court’s standing analysis does not apply”). But Massachusetts v. EPA,
read with Lujan, suggests that a challenge can be made to part of the
problem, and that solutions can be incremental. States can only sue the
EPA if Article III’s standing requirements, as defined by Lujan, are
satisfied. The concurrence ignores that. Massachusetts v. EPA, in other
words, must mean that the State of Massachusetts can show adequate
causation on global warming despite worldwide increasing greenhouse gas
emissions, whether from other countries or other states, and it clearly
means that incremental efforts to stem the tide of climate change are
sufficient under Article III to redress injuries caused by global warming.
The Bellon plaintiffs seek to require state action addressing the problem
of greenhouse gas emissions and satisfy the Lujan standards of causation
and redressability under Article III for the same reasons that
Massachusetts did.