Climate Change Standing: DC Circuit Requires Causal Link between Government Action and Injury

The U.S. Court of Appeals for the District of Columbia Circuit recently vacated the U.S. Department of the Interior ("Interior") Minerals Management Service 2007-2012 Five-Year Leasing Program for oil and gas development on the Outer Continental Shelf (OCS). Center for Biological Diversity v. U.S. DOI, __ F.3d __, 2009 WL 1025375 (D.C. Cir. April 17, 2009). The Five-Year Leasing Program covers 21 lease sales scheduled between July 1, 2007, and June 30, 2012, in eight OCS areas, including coastal Alaska and the Gulf of Mexico.

Although this decision is an important one for holders of OCS leases, it is most significant for the potential impact it will have on any entity ensnarled in climate change litigation brought under a variety of federal natural resources statutes. The decision provides useful precedent for those parties sued over their alleged contributions to climate change.

Three national environmental organizations and an Alaskan village challenged the Five-Year Leasing Program under the Outer Continental Shelf Lands Act (OCSLA), National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). Plaintiffs prevailed on only one of their claims--Interior's alleged failure under OCSLA to sufficiently assess the environmental impacts to OCS areas.

Focusing on Alaska, the D.C. Circuit found that Interior's analysis was limited to shoreline areas and did not extend to the OCS area (beginning three miles offshore) as required by statute. As a result, Interior did not have the information to conduct a "proper balance" of potential environmental harm versus prospects for oil and gas discovery. The court vacated and remanded the Five-Year Leasing Program to Interior for reconsideration in accordance with the opinion.

The D.C. Circuit dismissed plaintiffs' separate NEPA and ESA claims on standing and ripeness grounds. The court held that the plaintiffs lacked Article III standing to raise a nonprocedural challenge to the government's actions. Rejecting plaintiffs' "substantive theory of standing" for their climate change claims, the court limited the Supreme Court's finding of standing in Massachusetts v. EPA, 549 U.S. 497 (2007), to claims by a "sovereign" asserting injury beyond general harms to its citizens. Center for Biological Diversity, 2009 WL 1025375 at *6.

Similarly, with respect to ripeness, the D.C. Circuit found the alleged climate change impacts from additional oil and gas use were not sufficiently concrete or imminent and implicated too tenuous a causal link to the Five-Year Leasing Program. According to the court, plaintiffs relied on "too tenuous a causal link between their allegations of climate change and the Interior's actions" and because they relied on "speculation" about actions of third parties not before the court. Id. at *7-8. The court did find standing for the NEPA-based climate change claim under a theory of "procedural" injury arising from inadequate assessment of the risk to animals affected by offshore drilling, but did not cite any specific evidence. Nevertheless, the court found this claim unripe because approval of the Five-Year Leasing Program is only the first of several stages for OCS development.