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In Washington Environmental Council v. Bellon, the Ninth Circuit recently 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 Supreme Court held 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 lesser standing rights 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.” In American Electric Power Co. v. Connecticut (“AEP”), the Supreme Court, by an equally divided vote of four to four, affirmed a decision finding standing for both state and private plaintiffs in a tort suit seeking GHG reductions. The Court stated, “Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts…” Commentators have speculated that the four justices affirming 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 argument, there are plausible reasons to believe that he encouraged the majority to focus on the special standing rights of states. There has also been speculation that he 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 straight-forward federal court of appeals decision involving only private plaintiffs seeking to regulate GHGs. The decision is a precedent-setting case potentially barring all private GHG suits involving a limited number or amount of GHG emitters, but it did not decide the broader question of whether private parties can challenge EPA’s national regulation of the largest GHG sources, including power plants or motor vehicles. The broad language in the decision is arguably mere dicta that went too far in rejecting the possibility of private GHG suits.