Should states be responsible for beating back climate change?

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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As part of a nationwide strategy to get the state and federal courts to do what the elected representatives of the people and their executive agencies have declined to do on the subject of climate change, the Washington Environmental Council and the Washington State Chapter of the Sierra Club sued the Washington State Department of Ecology, the Northwest Clean Air Agency and the Puget Sound Clean Air Agency. The environmental groups claimed that in failing to regulate greenhouse gas emissions (GHG) from Washington’s five oil refineries, the three agencies are in violation of their legal responsibilities under the Clean Air Act (CAA).

A federal district court granted summary judgment to the environmental groups. In an opinion issued last week, the 9th Circuit Court of Appeals reversed on the ground that the plaintiffs lacked standing to bring the lawsuit.

To sue in federal court a party must have standing. The requirement derives from the provision in Article III of the U.S. Constitution granting federal courts jurisdiction in specified “cases” and “controversies.” Those terms have been interpreted to mean that the federal courts have no authority over political or policy disagreements – what the Supreme Court has labeled “generalized grievances.”

As stated by the Judge Milan Smith, a party seeking federal judicial action must offer to prove facts sufficient to establish that “(1) he or she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the
challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.” The three judge panel was unanimous in finding that the environmental groups had satisfied the first requisite, but failed to allege facts sufficient to meet the causation and redressability requirements.

It is not surprising that the court found that harms such as shortened snowshoeing and skiing seasons could satisfy the first standing requirement. Ever since the early 1970s that threshold has been very low.

Nor should it be surprising that the court held that the plaintiffs failed to allege facts that, if proven, would establish causation. Even accepting that global climate change is the cause of the alleged plaintiffs’ injuries, the contribution of emissions from Washington’s five oil refiners is such a small part of the whole as to be irrelevant. Of course the relative insignificance to global climate change of the refiners’ emissions was also conclusive on the question of whether a court order to regulate those refineries would do anything to affect snowpack in the Cascades.

But there is probably a good chance that the environmental groups will seek en banc review in the 9th Circuit, and given that court’s general proclivities there is a decent prospect that the three judge panel could be overruled.

But if there is to be such review, or if the panel’s decision is appealed to the U.S. Supreme Court, everyone would do well to focus on this statement from Judge Smith’s opinion: “[W]e may act only where we are granted power to do so by the Constitution and applicable statutes and regulations.”

For Judge Smith the case is not about the magnitude of any threat to the environment or the severity (or lack thereof) of the particular harms alleged by the plaintiffs. Nor is it about the wisdom of policy choices made by Congress or by the agencies responsible to implement the CAA. Rather the issue of standing is about the scope of judicial power.

It has already been noted by some in the environmentalist camp that all three judges are Republican appointees and therefore somehow biased against the cause of climate change control and mitigation. But the critique is shortsighted. There have been and will be other cases in which environmentalists urge judicial restraint on the grounds of constitutional limits on the judicial power. It’s best for all political interests if the courts confine themselves to their limited constitutional role in every case.

To be true to their oath to uphold the Constitution of the United States, every judge must respect the constitutional limits on judicial power no matter how strongly he or she may feel about the policy questions inherent in many matters that find their way into the federal and state courts. Because too many judges have been too willing to play the role of philosopher king rather than arbiter of the law, unhappy participants in the political process have every reason to seek judicial intervention. Thanks to Judge Smith and his fellow panel members (Judges Andrew Kleinfeld and N. Randy Smith), the bar against judicial meddling in legislative and executive affairs has been raised, at least temporarily.