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Environmentalists lose challenge to Washington state refinery decision

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A federal appeals court has decided not to reconsider a decision holding that environmentalists cannot mount a federal court challenge to a Washington agency’s decision not to force the state’s oil refineries to reduce their greenhouse gas emissions.

The order of the U.S. Court of Appeals for the Ninth Circuit in Washington Environmental Council v. Bellon rejected a request by a judge on the court that the opinion be subjected to en banc review.

At issue in the case is whether the Washington State Department of Ecology, the Evergreen State’s air quality regulator, must force oil refineries to adopt reasonably available control technology to limit greenhouse gas emissions.

In 2011 a federal district judge ruled that WSDE must do so. Last autumn a panel of judges on the San Francisco-based appeals court vacated that ruling, holding that the challengers to WSDE’s inaction lack standing to file a complaint about it in federal court.

The three-judge panel’s decision was not unanimous. A majority led by El Segundo, Calif.-based judge Milan D. Smith, Jr. said that the U.S. Supreme Court's decision in Lujan v. Defenders of Wildlife precluded the lawsuit.

In Lujan, a plurality of the justices concluded that the U.S. Constitution's standing requirement demands that plaintiffs challenging regulatory inaction show that they are both directly impacted by the government's choice and that any court decision in their favor be certain to redress the harm they suffer.

Smith, an appointee of former President George W. Bush, wrote in an opinion concurring in the Feb. 3 order denying en banc review of his Oct. 2013 decision that the restrictive nature of the Lujan case compelled the outcome in Bellon because the environmental group plaintiffs in the dispute provided no evidence that imposition of the regulations they sought would result in lower greenhouse gas emissions.

Three dissenters, led by Seattle-based judge Ronald Gould, disagreed, arguing that the 2007 U.S. Supreme Court decision in Massachusetts v. Environmental Protection Agency compelled a finding that the plaintiffs had standing.

"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," Gould wrote for himself and fellow judges Kim Wardlaw and Richard Paez.

Gould, Wardlaw, and Paez were appointed to the Ninth Circuit by former President William J. Clinton.

Gould explained that the Massachusetts case has to be read in conjunction with Lujan and that, in that landmark 2007 decision, the justices held that a state's regulatory response does not have to be likely to solve an entire policy problem in order for plaintiffs to show that a court order would deal with the harms they claim will result from the inaction.

“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,” Gould wrote. “Accordingly, Massachusetts v. EPA also confers standing upon individuals seeking to induce state action to protect the environment.”

Smith dismissed that point, asserting that the state plaintiff in Massachusetts v. Environmental Protection Agency was allowed to invoke the jurisdiction of a federal court only because it is a sovereign entity and that the harm it claimed was procedural, as opposed to the increased risk of global warming claimed by the plaintiffs in the Ninth Circuit dispute.

In the Ninth Circuit, en banc review involves reconsideration of a decision by a panel of 11 active judges on the court. For it to be granted, a majority of the court's active judges must agree.

Janette Brimmer, a lawyer with Earthjustice who represents the environmental group plaintiffs in the case, said that her clients have not yet determined whether to ask the Supreme Court to review the Ninth Circuit's decision.

Her clients' immediate objective looks like it will be achieved notwithstanding the appeals court's holding that they cannot challenge the specific regulatory decision by the Washington State Department of Ecology. The plaintiffs in the Bellon case sought to convince the WSDE to impose reasonably available control technology requirements (RACT), a technology-forcing tool mandated by the federal Clean Air Act and the state statutory and administrative programs that enforce it, on Evergreen State oil refineries.

"The state has repeatedly admitted that it believes it has an obligation to do this under state law (even though it argued it was not compelled under a federal SIP enforcement) and so we will be following up on that acknowledgement," Brimmer said in an email message.

Brimmer was referring to a state implementation plan, the principal means by which emission limits on pollutants regulated by the federal Clean Air Act are enforced.

Greenhouse gases are not yet subject to a national ambient air quality standard imposed by the U.S. Environmental Protection Agency, but a 1976 U.S Supreme Court decision held that state implementation plans can regulate pollutants that are not subject to the national emission limits represented by a NAAQS.

Camille St. Onge, a spokesperson for WSDE, confirmed that a rule that attempts to impose an obligation on the state's refineries to control greenhouse gas emissions is in development.

"We finished our formal comment period," St. Onge said.

She explained that WSDE views the rulemaking as being supported not only by federal and state statute, but also by the earlier decision in the Bellon case by a Seattle-based federal district judge.

"We do have authority under our state law," she said. "I would think that we're following the court order. We also have authority under the Clean Air Act."

The Bellon case and WSDE's proposed RACT rule focus on five refineries in Washington. Those refineries are the second-largest stationary source of greenhouse gas pollution in the state.

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