No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision in Washington Environmental Council v. Bellon

In Washington Environmental Council v. Bellon, the U.S. Court of Appeals for the Ninth Circuit held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a "meaningful contribution" to global GHG levels. By contrast, in Massachusetts v. EPA, the U.S. Supreme Court held that a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are "entitled to special solicitude in our standing analysis." Massachusetts implied, but did not decide, that private parties might have less standing rights than states do when it declared that "[i]t is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual." Four years later, in American Electric Power Co. v. Connecticut ("AEP"), the Supreme Court, by an equally divided four-to-four vote, affirmed a decision finding standing for both state and private plaintiffs in a tort suit seeking GHG reductions. The Court stated that "[f]our members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts." Commentators have speculated that the four Justices who found that the AEP plaintiffs had standing may have agreed only that the state plaintiffs had standing.Justice Kennedy is usually the crucial swing vote in standing cases on the current Court. Based on his questions during the Massachusetts oral arguments, Justice Kennedy may have encouraged the majority to focus on the "special" standing rights of states in that case. He also may be one of the four Justices who supported standing rights for "some" plaintiffs in AEP.The Ninth Circuit's decision in Washington Environmental Council is important because it is the most straightforward federal court of appeals decision involving only private plaintiffs seeking to regulate GHGs. The decision potentially bars all private GHG suits involving a limited number of GHG emitters or quantity of GHG emissions, but the court did not decide the broader question of whether private parties can challenge the U.S. Environmental Protection Agency's national regulation of the largest GHG sources, including power plants and motor vehicles. The decision's broad language is arguably mere dicta that went too far in rejecting the possibility of private GHG suits.INTRODUCTION1In Washington Environmental Council v. Bellon,2 a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recently held that two private non-profit groups did not have standing under Article III of the U.S. Constitution to challenge certain Washington State greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a "meaningful contribution to global GHG levels."3 By contrast, in Massachusetts v. EPA,4 the U.S. Supreme Court held that a state government had Article III standing to sue the federal government for its failure to regulate national GHG emissions from motor vehicles that arguably cause global climate change, despite the highly diffuse and generalized nature of the harms involved, because states are "entitled to special solicitude in our standing analysis."5 The Massachusetts Court did not explicitly decide whether private parties have standing rights to bring climate change suits against the federal government or large private GHG emitters. Nevertheless, the Court suggested that private parties may have lesser standing rights when it distinguished Lujan v. Defenders of Wildlife6 and announced that "[i]t is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual."7In American Electric Power Co. v. Connecticut8 ("AEP"), the Supreme Court, by an equally divided vote of four-to-four, affirmed the decision of the U. …