Center for Biological Diversity v. U.S. Department of the Interior
D.C. Circuit denies standing to native tribe and environmental groups who challenged Department of Interior’s offshore oil and gas leasing program on climate change grounds; but finds standing for them to challenge the agency’s compliance with procedural requirements
Status: Leasing program vacated and remanded to Interior for reconsideration of certain environmental impacts
Discussion & Analysis: The federal government owns and controls the waters and submerged lands of the Outer Continental Shelf (OCS). In 2005, the Department of the Interior began the process of leasing areas near the coast of Alaska for offshore oil and gas drilling under the Outer Continental Shelf Lands Act (OCSLA). Interior’s “Leasing Program” contains four stages: preparation; lease-sale; exploration; and development and production. Under OCSLA, Interior is required to consider the environmental impacts of its actions at each stage. The Alaskan Leasing Program at the time of this case was in the initial, or “preparation,” stage.
The areas scheduled for drilling are home to numerous threatened and endangered marine species, such as the right whale, the bowhead whale, polar bears, the Pacific walrus, seals, and various sea birds. Climate change is severely affecting the Arctic region where Native Alaskan communities depend on marine wildlife for subsistence and the preservation of their cultural heritage. In its environmental review, Interior performed an analysis of the Leasing Program’s direct impacts on coastal wildlife but did not consider impacts on marine animals. And while Interior did consider the greenhouse gas emissions resulting from production activities in the leasing area and their impacts in the Arctic generally, the agency did not consider the contribution climate change impacts from consumption of the oil and gas produced from the leasing area. Environmental groups and the Native Village of Point Hope, Alaska, brought suit in the DC Circuit Court of Appeals to halt the Leasing Program. They challenged the Program under OCSLA, the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).
For purposes of standing, petitioners’ claimed interest was enjoyment of the OCS areas and their animal inhabitants. The court declined to find standing for petitioners based on a claim of direct climate change injury (the “substantive” standing theory), but the court agreed that they had standing based on the claim that the Leasing Program was irrational (the “procedural” standing theory). Under their “substantive” theory of standing, petitioners argued that the Leasing Program contributes to climate change, which in turn harms the OCS species and ecosystems, and therefore threatens petitioners’ enjoyment of the animals and areas. But the court concluded that petitioners could demonstrate neither “injury” nor “causation” under this theory. Chief Judge Sentelle explained that standing to bring a substantive climate claim under either OCSLA or NEPA required petitioners to show that they would, in a “personal and individual way,” actually suffer injury due to climate change caused by the Leasing Program. Petitioners had failed to demonstrate that their alleged climate injury was “actual or imminent” (they had alleged only that adverse effects from climate “may” occur), or that they were being harmed in a particularized way. Nor, the court reasoned, did petitioners show the necessary causal link between Interior’s action and the claimed injury. The chain of events between Interior’s approval of the Leasing Program and the alleged climate injury included too many steps, and it also involved speculation about the actions of third parties not before the court (e.g., oil companies and individuals using gasoline in their cars).
Despite Sentelle’s rejection of petitioners’ standing to challenge the Leasing Program based on petitioners’ climate-change “injury,” the court found that they could challenge the Leasing Program on a “procedural” theory of standing. If Interior adopted a Leasing Program that “failed to consider” the ecological and economic costs of climate change in the leasing area at all, then Interior’s decisionmaking process would be “irrational.” This in turn could cause a “substantial increase in the risk” to petitioners’ interests in observing and enjoying Arctic wildlife. Under this approach, the injury to petitioners’ interest comes not from climate change directly, but from the effects of an “irrationally-based” Leasing Program—that is, one that fails to take into account the impacts of climate change.
On the merits of petitioners’ OCSLA claims, the court ruled that Interior had failed to properly assess the environmental sensitivity of the proposed marine leasing area to the direct impacts of drilling, and remanded the Program to Interior for further consideration. However, the Court concluded that OCSLA did not require Interior to consider the Leasing Program’s contribution to climate change resulting from combustion of oil and gas that might be produced under it, and held that Interior’s more limited analysis of climate impacts within the leasing area satisfied its obligations under OCSLA.
Although the environmental groups and the Village ultimately prevailed before the DC Circuit, Chief Judge Sentelle’s long critique of “substantive” standing in the climate context seems intended to limit the application of Massachusetts v. EPA, the Supreme Court’s landmark 2007 decision that upheld standing for climate change plaintiffs, one of which was the State of Massachusetts. Chief Judge Sentelle observed that Massachusetts arose from a “very limited factual setting” and did not apply to the case before him; if widely adopted, his analysis suggests that citizens and environmental organizations bringing claims for climate change injuries will rarely, if ever, be able to satisfy the “injury” and “causation” tests for constitutional standing.
Arguably, though, much of the Chief Judge’s analysis limiting the role of federal courts in adjudicating climate change claims is “dicta”—meaning that it was not required for the legal conclusion he reached, and thus lower courts are not bound to treat it as binding precedent. In a short, concurring opinion, Judge Rogers noted that determining the scope of the Supreme Court’s holding in Massachusetts was not necessary to resolve the case. Nevertheless, the Chief Judge’s analysis, coming from the court generally regarded as the second most powerful in the country, may carry weight with other courts.
The DC Circuit’s ruling in this case is the most important decision on climate-change standing since Massachusetts was decided in 2007. Although it allows that plaintiffs may in some instances be able to articulate a “procedural” theory of standing based on failures in federal and state regulatory processes, it is difficult to imagine a set of facts under which Chief Judge Sentelle would be willing to find standing based on a “substantive” theory of climate injury. Some believe Massachusetts provides the basis for establishing substantive standing in lawsuits outside the regulatory context, for example, in several nuisance suits that have been brought against major greenhouse polluters. Chief Judge Sentelle’s analysis, if followed, would likely foreclose such suits. On the other hand, his recognition that the plaintiffs’ “procedural” theory rests on an “increase in the risk of harm” suggests that he may be moderating his view of risk-based injury articulated in several other DC Circuit cases.
Key Opinion: Center for Biological Diversity v. Department of the Interior , 563 F.3d 466 (D.C. Cir. 2009).
 |