April 20, 2009

D.C. Circuit standing decision on climate change

By Damien M. Schiff Senior Attorney

In Center for Biological Diversity v. U.S. Department of the Interior, the D.C. Circuit addressed CBD's claims against a new five-year leasing plan for oil and gas exploration and development in the outer continental shelf off the coast of Alaska.  CBD and other organizations (including at least one native Alaskan Indian village) challenged the Department's leasing plan as violative of the Outer Continental Shelf Lands Act, the National Environmental Policy Act, and the Endangered Species Act.  The court dismissed some of CBD's claims on standing and ripeness grounds (including the Section 7 claim, on the theory that CBD could challenge any subsequent specific leasing decision and obtain full judicial review thereof).

The court's discussion of the standing issues is significant, as CBD had argued that it had standing to sue over the offshore leasing program, because that program would result in more oil being produced, which would lead to more green house gases (GHGs), which would harm the Alaskan environment and its wildlife.  The court squarely rejected CBD's climate change substantive injury theories (noting that Massachusetts v. EPA is easily distinguishable on the grounds that the Court there entertained a "special solicitude" for Massachusetts as a sovereign, whereas here CBD is a private organization), but accepted its procedural injury theories based on the same climate chage injury (meaning that the alleged governmental failure to take into account climate change when promulgating the new leasing program might end up harming CBD's substantive interest in the Alaskan environment and its wildlife).  Nevertheless, the court apparently concluded that the reason why CBD has standing to sue even on the procedural standing theory is that the leasing program will result in offshore drilling, which may likely harm the Alaskan environment and its wildlife.  In other words, the court impliedly rejected a "more oil = more GHGs = more climate change = more environmental harm" causal chain altogether.  The decision may therefore prove to be a signficant obstacle to private party global climate change litigation, at least in the D.C. Circuit.

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