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.
Environmental group sues Bureau of Land Management for failing to consider greenhouse gas emissions in granting oil and gas leases
The Western Environmental Law Center (“WELC”) has filed suit in New Mexico federal court against the Bureau of Land Management (“BLM”), alleging that the agency’s 2008 grant of 92 oil and gas leases in New Mexico violated federal law by failing to address greenhouse gas emissions. The complaint also alleges that the Bureau failed to adopt policies designed to make drilling more efficient. This lawsuit, along with a similar complaint filed by WELC in Montana in December, is among the first to use greenhouse gas emissions as a basis for challenging oil and gas leases in the west. Named plaintiffs in the suit are Amigos Bravos, the Natural Resources Defense Council (NRDC), and members of the Oil and Gas Accountability Project.
WELC argues in its complaint that the agency’s grants of the leases were improper under the Federal Land Policy and Management Act (“FLPMA”), the Mineral Leasing Act (“MLA”), the National Environmental Policy Act (“NEPA”) and the Department of the Interior’s Secretarial Order 3226 (January 19, 2001). The citizen group plaintiffs base their standing to sue on the alleged impairment of their use and enjoyment of lands affected by the leases.
The complaint alleges that oil and gas exploration and operations release greenhouse gases on many fronts, including vented gases from machines, gasoline processing, and coal beds, gases released during transport and refining of oil and gas, and heat and electricity generation. The complaint suggests that gas released from these sources could cause the greenhouse gas concentration in New Mexico to reach a tipping point, a point at which global warming would start to accelerate at a rate beyond human control.
The WELC complaint seeks both declaratory and injunctive relief. It asks that the district court suspend, enjoin or void the leases until the Bureau of Land Management achieves full compliance with the applicable federal law. The complaint also asks that fees and costs be awarded to the plaintiffs.
