Recent DC Circuit decision limits standing of private parties to sue over climate change
The Court of Appeals for the District of Columbia Circuit recently issued an opinion in Center for Biological Diversity v. United States Department of the Interior (“CBD”). In the suit, three non-profit activist groups and one tribal government sued the Department of the Interior for failing to account for climate change when deciding to grant oil and gas leases off the Alaska coast. The ruling creates a hurdle for parties filing climate change based lawsuits. In the opinion, the DC Circuit holds that the petitioners lacked “substantive” standing to pursue their National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, though it did find that they had established procedural standing. The ruling also sets out specific limits on the application of the Supreme Court’s most recent decision on the regulation of greenhouse gases, Massachusetts v. EPA.
First, the CBD court found that Mass. v. EPA only applies to situations where a sovereign, such as a state, seeks to “assert its own rights as a state” and not the rights of its citizens. In the Supreme Court case, Massachusetts was able to claim that the EPA’s failure to regulate greenhouse gases was actually causing the diminution of shoreline which the state owned. The DC circuit thus held that Mass. v. EPA stood only for the proposition that “where a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where that sovereign’s individual interests are harmed, wholly apart from the alleged general harm.” The CBD court noted that since the tribal government plaintiff in their case did not actually own the offshore land that was directly affected, the holding in Mass. v. EPA did not extend to the analysis of their claim.
The court then analyzed whether the petitioners’ climate change claims could meet the traditional Article III standing test of showing “a concrete and particularized injury that is caused by, or fairly traceable to, the act challenged in the litigation and redressable by the court.” The court found that petitioners could not establish either injury or causation. Injury to the Arctic environment from climate change was first, too speculative, as it might occur at some point in the future, and second, too generalized, as it affected the world at large. Causation, according to the court, was too tenuous, as the chain of events between the leases and climate change involved too many third parties, such as oil companies and consumers.
This holding by the DC Circuit makes it more difficult for environmental groups to use the courts to address global warming. In addition to seriously curtailing the applicability of Mass. v. EPA, the opinion also indicates that generalized future “climate change” injuries, at least at present, will have a great deal of difficulty meeting Article III standing requirements.
CBD lawsuit seeking ESA protection of sea turtles due to climate change the latest attempt at regulation through litigation
Co-authored with Amy Garber.
The failure of the US to define its climate change policy through legislation and rulemaking has once again resulted in an attempt by environmental groups to force global warming policy through litigation. Plaintiffs Center for Biological Diversity (CBD), Turtle Island Restoration Network and Oceana Inc., have filed a complaint alleging violations of the Endangered Species Act (ESA) and Administrative Procedure Act based upon allegations that the habitat of the leatherback and loggerhead sea turtles is being destroyed by climate change. The case, Center for Biological Diversity et al v. Locke et al, which is docketed in the Northern District of California, seeks declaratory and injunctive relief requiring the government to protect the turtles and their habitat from the effects of climate change.
In particular, plaintiffs allege that the government defendants failed to make a timely determination on petitions that the groups had filed in 2007 to designate certain areas as “critical habitats” and some sea turtle species as “endangered.” In September 2007, plaintiffs petitioned the Fisheries Service to designate the ocean waters of the California and Oregon coasts a “critical habitat” for the leatherback sea turtle. Further, the petition requested the Fisheries Service and Fish and Wildlife service to reclassify certain loggerhead populations as “endangered.” The government determined in December 2007, that the petition was warranted but failed to make a final determination within the ESA’s mandatory 12-month period.
The complaint makes sparse and vague allegations as to injurious effects of climate change on the sea turtles. Plaintiffs allege that global warming will cause sea levels to rise, thus destroying loggerhead nesting beaches. Further, they claim that ocean warming is likely to directly affect reproduction and other necessary survival activities of the loggerhead turtle. The Complaint also asserts that ocean acidification, which they allege is caused by increased greenhouse gas levels, will cause a decrease of the loggerhead’s food supply. As to the leatherback sea turtle, the Complaint also alleges in general terms that global warming is endangering the species.
This case is another example among many recent attempts to regulate climate change by litigation. Asserting injury due to global warming seems to be turning into an almost boilerplate assertion for complaints brought by environmental groups under federal environmental laws.
Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
The latest round of lawsuits may stem from the continuation of the polar bear exception, also known as the “Alaska Gap.” While the special rule aims to protect the polar bear, it applies only to activities in Alaska, and exempts the “incidental” effects of activities outside the state. Salazar had authority to revoke the rule until May 10, under the Omnibus Appropriations Act of 2009 . Salazar’s announcement came despite a large campaign against the rule. More than 1300 scientists, 53 law professors, 8 senators, U.S. representatives, California legislators, and Conservation organizations wrote letters to Salazar beseeching him to abandon the special rule. Now that he refused to use his authority to revoke the rule, environmentalists such as the Center for Biological Diversity have hailed Mr. Salazar’s decision “a gift to big oil.”
There has been considerable debate over the actual effects of global warming on the polar bear. Notably, the polar bears are already protected by protected by Title V of the Marine Mammal Protection Act, and international treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The budget for Fiscal Year 2010 increases the funding for polar bear conservation efforts.
In a Missouri town hall meeting in late April, President Obama declared that the way to save the earth and the polar bears was to change things in “a smart, gradual way.” However gradual the Administration’s plan is, it is certain that the courts will be dealing with many attempts at regulation by litigation in the meantime.
CBD seeks ESA protection of Kittlitz's murrelet
The Center for Biological Diversity has filed a scientific petition with the Alaska Department of Fish and Game to protect an Alaskan seabird under Alaska’s Endangered Species Act. The Center claims that the seabird, a species known as Kittlitz’s murrelet, faces extinction due to threats from global warming.
The Kittlitz’s murrelet is only the latest species that the Center has sought to add to the endangered species list due to perceived effects from global warming. Recently, the US Fish and Wildlife Service agreed to determine whether the American pika warrants protection from global warming effects under the Endangered Species Act by May, 2009, settling a lawsuit filed by the Center for the agency’s failure to make the determination in the required statutory period. Emboldened by its success, the Center vowed to commit even greater resources to similar climate litigation.
“Like the polar bear, the Kittlitz’s murrelet is being pushed toward extinction by rapid global warming in Alaska,” claims Shaye Wolf, a biologist with the Center. “If we are to save the Kittlitz’s murrelet, we must halt global warming to protect this species’ remaining habitat before it is too late.”
This is not the first time that the Center has sought protection of this seabird. In 2001, the Center sought federal endangered species protection of Kittlitz’s murrelets. However, in 2004 the US Fish and Wildlife Service determined that, while the species warranted protection, it was “precluded” from being listed due to other agency priorities. The seabird, however, is identified as a critically endangered species by the World Conservation Union.
The Kittlitz’s murrelet, named in commemoration of the German zoologist Heinrich von Kittlitz, is a small seabird that nests on open ground near the tops of the coastal mountains of Alaska and Siberia. The Kittlitz's murrelet feeds on larval fish, krill and small zooplankton close to the shore, particularly in the waters around tidewater glaciers. Activists from the Center claim that the Kittlitz’s murrelet’s dependence on these glacial waters makes it susceptible to any retreating or thinning of glaciers that may be caused by global warming.
US Fish and Wildlife Service to consider climate change protection for Pika under ESA
The US Fish and Wildlife Service has agreed to determine whether the American Pika warrants protection from global warming effects under the Endangered Species Act by May 2009. If the Service determines that protection is warranted, it has nine months to decide whether the pika should be designated an endangered species. This agreement is part of a settlement resolving a lawsuit filed against the Service in August 2008 by the Center for Biological Diversity. The Center alleged that the Service had improperly failed to take action on an October 1, 2007 petition to evaluate whether the pika was an endangered species due to rising temperatures. At the time the lawsuit was filed, the Service had fallen nearly eight months behind the legal deadline to evaluate the petition.
Biologists for the Center claim that more than a third of documented pika populations in the Great Basin mountains of Nevada and Oregon have gone extinct in the past century as temperatures warm, and those that remain are found an average of 900 feet further upslope.
As a result of this agreement, the pika will become the first mammal considered for protection under the Act based on the claimed effects of global warming in the continental United States outside of Alaska. Last May, the government listed polar bears as threatened because their sea ice habitat was melting away as a result of increased temperatures.
Given the success of attempts to protect species like the pika and polar bears from the effects of global warming, and given yesterday’s announcement that the Center for Biological Diversity intends to commit even greater resources to climate litigation through its Climate Law Institute, we expect to see similar lawsuits in the future, as environmentalists increasingly attempt to address global climate change issues through litigation.
Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
CBD filed its 2007 petition with the Administrator of the US EPA and the Secretaries for the US Departments of the Interior, Commerce, Agriculture, Transportation, Energy and Defense. In the petition, CBD noted that “Human-induced global warming is already playing a significant role in habitat loss and the spread of invasive species and has contributed to the extinction of numerous species.” To address this issue, the CBD-recommended modifications would broadly require, in part, that federal agencies:
- include global climate change analysis in all federal decision-making which could potentially affect endangered species recovery;
- enhance data support for recovery plans and specify all data gaps inhibiting recovery plan completion and adoption;
- adhere to a three-year time frame for recovery plan adoption following endangered species listings;
- adopt all backlogged recovery plans within ten years; and
- adopt a schedule for listing all species warranting Endangered Species Act protection.
CBD cited Massachusetts v. EPA in arguing that the US Supreme Court “recognized the urgent threat to human well-being and the environment as a result of climate change, and permitted advocacy groups to petition and sue federal agencies that do not dispense of their statutory duties as they relate to global warming.” CBD seeks, in part, a court order requiring the federal agencies to, within sixty days, either identify a time frame within which they would have to substantively respond to the petition or issue a denial.
The CBD complaint appears novel in at least one respect – it is “outcome-neutral.” CBD neither argues that the federal agencies’ collective failure to respond was a constructive denial nor that a denial of the petition would be unlawful. CBD’s omission of the Energy Department (the only agency which actually denied the petition) from the list of defendants demonstrates this outcome-neutral approach. In light of the complaint’s structure and relief requested, the lawsuit would end after the federal agencies respond, regardless of whether the agencies granted or denied the CBD Petition.
CBD’s outcome-neutral complaint is at least partially attributable to the prospect of Obama administration modifications to federal climate change policy. The CBD press release that accompanied the complaint contained the following statement:
We filed the [Petition] in 2007 to jump-start the reinvention of federal conservation policy. The Bush administration ignored the petition. With this lawsuit, we provide the Obama administration with a legal platform to develop integrated, government-wide policies to speed the recovery of endangered species and limit the impact of global warming. We look forward to working with the new administration to resolve the suit and begin the hard work of turning the ship of state … around after eight years of stalling.
An unnamed CBD attorney also stated to Inside EPA (“Activists May Defer Suits in Favor of Climate Talks with Obama EPA,” Vol. 30, No. 3, Jan. 23, 2009) that the lawsuit “allows us to formally ‘queue up’ and make sure, legally, that global warming impacts … are not forgotten or swept under the rug with the new administration.”
Lawsuits seek protection of American pika as endangered species due to climate change
Alleging a failure of regulators to declare the American pika an endangered species based on the impact of climate change, the Center for Biological Diversity on August 19 filed lawsuits in California state and federal court seeking injunctive relief. To combat the perceived deleterious effects of global warming on the pika, the Center is seeking protection of the animal under the California Endangered Species Act and the federal Endangered Species Act. However, regulators have not been so quick to adopt the Center’s position and this reluctance has resulted in two lawsuits.
The American pika (Ochotona princeps) is a small mammal living on the slopes of high mountains throughout the western contiguous United States. Pikas are related to rabbits and hares. Though the pika’s dense hair protects it from harsh alpine winters, it also makes it uniquely susceptible to hyperthermia – or heat stroke. The Center for Biological Diversity alleges that pikas who do not seek shelter in their burrows die when air temperatures reach just 77.9° to 84.9° F. “The pika is the American West’s canary in the coal mine,” says Shaye Wolf, a biologist with the Center. “As temperatures rise, pika populations at lower elevations are being driven to extinction, pushing pikas further upslope until they have nowhere left to go.”
The pika lawsuits are part of a larger “regulation by litigation” trend, as environmentalists seek to use litigation under the ESA and other existing statutes as a “back door” to address climate change issues.
The first lawsuit, filed in San Francisco Superior Court against the California Fish and Game Commission, challenges the Commission’s April 10, 2008 denial of a petition to place the pika on the California endangered species list. In its Notice of Findings explaining the rejection of the pika petition, the Commission stated that it was “speculative” that climate change threatened the pika and that the petition failed to “definitively establish that pika distribution in California has contracted (or is contracting) upslope.” In its lawsuit, the Center asks the Court to issue a writ of mandate “commanding the Commission to set aside its prejudicial actions…and issue a new decision accepting the Center’s petition….” Greg Loarie, an attorney with Earthjustice, accused the Commission of “bury[ing] its head in the sand” as to the effects of global warming on California wildlife.
The second lawsuit, filed in federal court in the Eastern District of California, does not challenge the failure to include the pika on the endangered species list, but the failure to make any determination of the pika’s status. Brought under the federal Endangered Species Act, the suit alleges that the Secretary of the Interior was required to make a determination on the October 1, 2007 petition within 90 days of its submission, pursuant to 16 U.S.C. § 1533(b)(3)(A) but that, to date, the government has not taken any action on the petition. The Center filed a motion for summary judgment in the case on October 2, 2008, requesting that the Court order the Secretary to make an initial finding regarding the Center’s petition within 30 days of any order granting summary judgment. The matter is set for hearing on December 5, 2008.
Endangered Species Act becoming a key battleground in climate change regulation and litigation
The newly-filed American Petroleum Institute, et al. v. Kempthorne, et al. lawsuit, as well as recently proposed regulatory changes to the Endangered Species Act (“ESA”) confirm that the ESA is becoming a key battleground over the use of existing legislative and regulatory tools to atttempt to regulate greenhouse gases.
The Bush Administration recently proposed changes to the ESA to prevent it from being used as a "back door" mechanism to address climate change issues. Under the current ESA regulations, federal agencies that propose to take actions that “may affect” protected species are required to "consult" with the U.S. Fish & Wildlife Service or the National Oceanic and Atmospheric Administration (depending on the species involved) to evaluate the proposed action. This “consultation” may involve either a formal written request or it may be a meeting between the agencies. The proposed changes to ESA regulations would allow federal agencies to skip this consultation step if the agency decides itself that the action at issue would not have an adverse effect on the protected species. For example, the proposal states:
These regulations would reinforce the [Fish and Wildlife] Services’ current view that there is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species (e.g., polar bears).
The proposed rule appears to reflect the government's position that it is not possible to draw a causal link between greenhouse gas emissions and impacts on endangered species, and therefore, they want to prevent an agency from being required to consult on action that "may affect" a protected species as a result of the action's emissions of greenhouse gases. The proposal also adds timelines to limit the duration of informal consultation and lend greater certainty to the process. It would allow action agencies to terminate consultation if the Fish and Wildlife Service, for example, has not acted on its request for concurrence within 60 days. While extensions may be requested, if there is no written determination from the Service within the applicable time frame, the agency taking the action may terminate the consultation. The proposed regulatory changes have further galvanized criticism of current U.S. climate policy and will no doubt garner significant public comments during the 30-day comment period. If it is finalized, expect this regulation to be the subject of aggressive litigation challenges.
“White House Proposes to Butcher Endangered Species Act (Center for Biological Diversity, August 14, 2008); “Endangered Species: In More Danger (Time Magazine, August 12, 2008)”.
For more on this topic, see our previous post on the “Alaska Gap” lawsuit.
Industry lawsuit challenges three-word "Alaska Gap" of Department of Interior rule
Regional Causation Will Be a Key Question
On the same day that it determined under the Endangered Species Act that polar bears were threatened, the Interior Department published an Interim Final Special Rule which in essence provides that, “except in Alaska,” greenhouse gas emitting activities are exempt from the requirement that a Fish and Wildlife Service (FWS) permit be obtained where there may be an “incidental taking" of the threatened species. Five industry groups – American Petroleum Institute, U.S. Chamber of Commerce, National Mining Association and the National Association of Manufacturers – just filed a lawsuit (American Petroleum Institute, et al. v. Kempthorne, et al.) in the United District Court for the District of Columbia challenging that three word exception.
While these groups generally support the interim rule, they challenge the logic behind the Alaska exception given EPA (and other) conclusions that regional emissions do not directly cause regional climate impacts. An excerpt from the complaint (paragraphs 5 and 6) summarizes the lawsuit:
Under the ESA and its accompanying regulations, the “threatened species” designation presumptively triggers Section 9 of the ESA, which would require an FWS permit for activities that constitute an “incidental taking” of the designated species. FWS, however, also determined that climate change is a worldwide phenomenon, resulting from the combination of greenhouse gas emissions across the globe. Accordingly, FWS determined that neither climate change, nor any effect of climate change, can be traced to particular activities in particular locations. On that basis, FWS accompanied its Listing Rule with the 4(d) Rule, which generally exempts greenhouse gas emitting activities from Section 9 requirements to which they might otherwise be subject. . . .
But in sharp contradiction with FWS’s own determination that climate-change-based effects on polar bears cannot be traced to emission activities in any particular location, the 4(d) Rule excludes Alaska from the Section 9 exemption. The Alaska Gap thus exposed Alaska operations to increased permitting burdens and/or the risk of enforcement by Government authorities and citizen suits – risks that operations elsewhere in the United Sates do not face and that are contrary to FWS’s own determinations about the nature and effects of global climate change
The lawsuit will likely draw on support from FWS’s own words, including statements like the following contained in a May 14, 2008 FWS memorandum regarding Expectations for Consultations that Would Emit Greenhouse Gases:
GHG that are projected to be emitted from a facility would not, in and of themselves trigger section 7 consultation for a particular action unless it is established that the emissions from the proposed action cause an indirect effect to listed species or critical habitat. To constitute an indirect effect, the impact to the species must be later in time, must be caused by the proposed action, and must be reasonably certain to occur. The best scientific data available today do not allow us . . . to draw a causal connection between GHG emissions from a given facility and effects posed to listed species or their habitats, nor are there sufficient data to establish that such impacts are reasonably certain to occur.
Unlike public nuisance cases filed to date, where early dismissals on political question and standing grounds prevented the lawsuits from reaching the critical, and complex, issues relating to causation, this litigation should put the question of causation directly into play, requiring an analysis of whether greenhouse gas emissions can be isolated and evaluated on a such a localized basis.
