By Gabrielle Sigel, Partner, Jenner & Block
Two U.S. district courts recently issued separate decisions rejecting environmental groups' challenges to federal actions based on alleged climate change injuries. In both cases, using the same legal test, the courts found that the environmental groups did not have standing to pursue their claims against the federal agencies. This is an important development in climate change litigation, which in the past has addressed standing only in the tort context or regarding claims brought by States, not when private parties were challenging federal agency actions.
On August 3, 2011, the United States District Court for the District of New Mexico found against plaintiffs' petition challenging U.S. Bureau of Land Management ("BLM") leasing decisions as they affect climate change. Amigos Bravos v. U.S. Bureau of Land Management, No. 6:09-cv-00037-RB-LFG, U.S. Dist. Ct. N.M. (8/3/11) (Free Download). In April and July 2008, BLM approved quarterly oil and gas lease sales for 92 parcels located in New Mexico. Several environmental groups, including Amigos Bravos, the Natural Resources Defense Council, and the Southwest Environmental Center (collectively, "Amigos Bravos") protested the BLM sales. (Lexis.com subscribers can access the Lexis enhanced version of the Bravos v. United States BLM, 2011 U.S. Dist. LEXIS 95708 (D.N.M. Aug. 3, 2011) decision with core terms, case law links, and Shepard's.)
Following unsuccessful protests to BLM, on January 14, 2009, Amigos Bravos filed a complaint in New Mexico's federal district court. The lawsuit alleged that the lease sales were contrary to the Administrative Procedure Act ("APA"), the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act, and the Mineral Leasing Act. The crux of plaintiffs' claims was that BLM failed to consider GHG emissions, global warming, and climate change impacts in its actions authorizing the oil and gas leases. In plaintiffs' opening brief on the merits of their claim for injunctive and declaratory relief, they addressed their basis for standing. In response, defendants argued that the groups had no standing and the lawsuit should be dismissed.
The New Mexico federal court, Judge Robert Brack presiding, applied the three-pronged test for standing stated by the U.S. Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992): (1) injury-in-fact; (2) causation; and (3) redressability. Amigos Bravos asserted that because their claims involve assertions of procedural violations, their standing requirements are relaxed. The New Mexico court found that, while the third element - redressability - can be relaxed, the injury-in-fact requirement cannot be. Amigos Bravos, slip op., p. 25, citing Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009). The district court found that plaintiffs must show that BLM's actions both increased the risk of environmental harm and that plaintiffs either have a geographic nexus to or actually use the sites affected by the agency action, i.e., the 92 parcels.
The court first held that plaintiffs showed only a hypothetical, conjectural injury because they presented no scientific evidence or recorded observations of an actual or imminent threat from climate change. The court dismissed plaintiffs' declarations of their personal observations of climate change as "pure conjecture." Id., p. 21. The court recognized that there "may be a generally accepted scientific consensus with regard to global climate change," as recognized by the Supreme Court in Massachusetts v. EPA, 549 U.S. 497, 521-23 (2007). However, the district court distinguished world-wide climate change from the effect on specific geographic areas, such as the New Mexico environment. Id., p. 26.
In addition, the court found that plaintiffs had not shown a concrete interest, because they did not show any use or interest in the specific leased sites. In rejecting plaintiffs' proof of injury-in-fact, the court noted the difficulty of accepting climate change as an injury. "With climate change, the Court must enforce some limits on what constitutes an injury-in-fact; otherwise, it would be overwhelmed by a flood of lawsuits asserting generalized grievances against polluters large and small." Id., p. 18. The court stated that these grievances were best left to the political process, not judicial review. Moreover, plaintiffs' allegations that the leases would cause other environmental damage, such as noise, odor, and other pollution, cannot be used to prove the climate change harms alleged, even though those other damages constitute "more concrete and particularized injuries." Id., pp. 25-27.
After finding no injury-in-fact, Judge Brack continued his analysis and found that plaintiffs also did not show causation. Based on Mass. v. EPA, the court found that plaintiffs only needed to show that the emissions from the leases' operation "meaningfully contributed" to climate change. Id., p. 27, citing Mass. v. EPA, 549 U.S. at 523-25. Here, even if the oil and gas wells at issue were fully developed, the resulting GHG emissions would account for only 0.0009% of global emissions. Given plaintiffs' alleged injuries of significant climate impact, the court found it "stretches credibility to believe" that the relatively small amount of GHG emissions were fairly traceable to plaintiffs' alleged injuries. Id., p. 23.
Finally, the court found that, because plaintiffs were claiming a procedural injury, a relaxed standard of redressability applied. The court found that Amigos Bravos showed that if the court were to set aside BLM's decision on the leases, BLM would have to reevaluate them, thereby redressing plaintiffs' claims. Id., pp. 24-25. However, the court concluded that meeting one of the three prongs of the standing test was insufficient; plaintiffs needed to meet all three prongs. Thus, the court dismissed plaintiffs' climate change-related claims for lack of standing. Id., p. 27.
In reaching its decision, the New Mexico court repeatedly distinguished the Supreme Court's decision in Mass v. EPA. Judge Brack noted that the plaintiff States in Mass. v. EPA were acting in their unique parens patriae status and had shown, through expert testimony, concrete injury to the States' coastline, as well as causation. In contrast, according to the New Mexico court, the Amigos Bravos plaintiffs provided only non-expert observations of individual climate change injuries.
The Amigos Bravos decision follows a similar decision by the U.S. District Court for the Eastern District of Virginia. Sierra Club v. U.S. Defense Energy Support Center, No. 01:11-cv-41, U.S. Dist. Ct. E.D. Va. (7/29/11) (Free Download). In Sierra Club, the court dismissed on standing grounds a lawsuit brought by Sierra Club and other groups (collectively, "Sierra Club") challenging Department of Defense ("DOD") procurement policy permitting the purchase of fuel developed from Canadian oil sands. (Lexis.com subscribers can access the Lexis enhanced version of the Sierra Club v. United States Def. Energy Support Ctr., 2011 U.S. Dist. LEXIS 84852 (E.D. Va. July 29, 2011) decision with core terms, case law links, and Shepard's.)
Sierra Club's lawsuit was based on § 526 of the 2007 Energy Independence and Security Act ("EISA"), which forbids federal agencies from purchasing synthetic and alternative fuels "unless the contract specifies that the life-cycle greenhouse gas emissions [from that fuel is] less than or equal to such emissions from [conventional fuel]." Sierra Club alleged that DOD's procurement of fuel derived from Canadian oil sands violates EISA § 526, the APA, and NEPA. Sierra Club alleged that DOD's actions caused an increased risk of harm to its members' health, recreational, economic and aesthetic interests due to the increased GHG emissions and global warming effects of DOD's conduct and that if DOD complied with APA procedures, it may change its decision, to Sierra Club's benefit.
Using the same test for standing applied in Amigos Bravos, Judge Claude Hilton dismissed the suit without reaching the merits of Sierra Club's claims. With respect to injury-in-fact, the court found that, although Sierra Club alleged injury from global warming generally, Sierra Club had not alleged that its members will suffer injuries directly from DOD's purchasing contracts. In addition, even if DOD violated APA's procedures, Sierra Club could not show a "concrete and particularized injury" to their members as a result. Sierra Club, slip op., p. 9. The court also found that Sierra Club failed to plead a causal connection between its members' injuries and DOD's fuel contracts. The court found that plaintiffs could have only an "attenuated causal chain" to demonstrate a cause-and-effect relationship between DOD's actions and their climate change injuries. Id., p. 12. Moreover, plaintiffs cannot show that their injuries were not caused by third parties, especially because they cannot show that, even if DOD did not purchase fuel from Canadian oil sands, others would not do so or that decreased emissions by avoiding DOD contracts would not be offset by GHG emissions elsewhere. Unlike the Amigos Bravos decision, the Sierra Club court found that plaintiffs failed to show the redressability element of standing.
Finally, the Virginia federal court found that Sierra Club failed to satisfy "prudential standing requirements." Id., p. 16. The court found that by dismissing the case, it can "avoid the adjudication of 'abstract questions of wide public significance . . . pervasively shared and most appropriately addressed in the representative branches.'" Id., citing Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 474 (1982). The court held that Sierra Club's claims are "exactly the type of claim" that the prudential standing doctrine cautions against the court hearing. Id.
In other climate change cases, courts had considered standing either in the context of individuals' toxic tort claims or States' claims contesting federal action or alleging a tort. See, e.g., Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009) (individual tort claims); Mass v. EPA (States' challenge to federal action); Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (States' federal common law nuisance claim). The Supreme Court has recognized that States have standing to allege climate change injuries. See Mass. v. EPA, and Am. Elec. Power. However, all district courts considering the issue have rejected individual plaintiffs' toxic tort standing. In these two opinions, Amigos Bravos and Sierra Club, the courts are raising the barriers to individuals' and citizen groups' standing to bring climate change litigation by precluding them from challenging federal agency actions on those grounds. Whether the appellate courts and the Supreme Court will uphold these raised barriers remains to be seen in further litigation.
Gabrielle Sigel, a partner in Jenner & Block's Environmental Practice, is Co-Chair of her Firm's Climate and Clean Technology Law Practice. Ms. Sigel's national practice focuses primarily on environmental, safety and health litigation and counseling, toxic tort defense, and insurance coverage litigation and counseling. She recently concluded several toxic tort lawsuits concerning a contaminated site located in a residential area.
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