Wash. Envtl. Council v. Bellon

• Decision Date: 17 October 2013
• Docket Number: 12–35324,Nos. 12–35323,12–35358.,s. 12–35323
• Citation: 732 F.3d 1131
• Parties: WASHINGTON ENVIRONMENTAL COUNCIL; Sierra Club, Washington State Chapter, Plaintiffs–Appellees, 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 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, 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.
• Court: U.S. Court of Appeals — Ninth Circuit

732 F.3d 1131

WASHINGTON ENVIRONMENTAL COUNCIL; Sierra Club, Washington State Chapter, Plaintiffs–Appellees,

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 Clean Air Agency, in his official capacity; Craig T. Kenworthy, Defendants,andWestern States Petroleum Association, Intervenor–Defendant–Appellant.

Washington Environmental Council; Sierra Club, Washington State Chapter, Plaintiffs–Appellants,

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,andWestern States Petroleum Association, Intervenor–Defendant.

Nos. 12–35323, 12–35324, 12–35358.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2013.

Filed Oct. 17, 2013.

Laura J. Watson (argued), Assistant Attorney General; Robert M. McKenna, Attorney General; and Katharine G. Shirey, Assistant Attorney General, Olympia, WA; Svend A. Brandt–Erichsen, Marten Law PLLC, Seattle, WA; Jennifer A. Dold, Puget Sound Clean Air Agency, Seattle, WA, for Defendants–Appellants/Cross–Appellees.

Janette K. Brimmer (argued), Earthjustice Legal Defense Fund, Seattle, WA; Brian W. Chestnut and Joshua A. Osborne–Klein, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, for Plaintiffs–Appellees/Cross–Appellants.

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

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Chief District Judge, Presiding. D.C. No. 2:11–cv–00417–MJP.

Before: ANDREW J. KLEINFELD, MILAN D. SMITH, JR., and N. RANDY SMITH, Circuit Judges.

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.

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, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Greenhouse gases consist of carbon dioxide, methane, nitrous oxide, 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 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, ––– U.S. ––––, 131 S.Ct. 2527, 2532–33, 180 L.Ed.2d 435 (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).

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 the air pollutants for which it has established NAAQS as “criteria pollutants” or “NAAQS pollutants.” See40 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).

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...