ESTABLISHING CAUSATION IN PRIVATE PARTY CLIMATE CHANGE SUITS: CORRECTING THE MISTAKES OF WASHINGTON ENVIRONMENTAL COUNCIL V. BELLON

摘要

The Ninth Circuit Court of Appeals's recent decision in Washington Environmental Council v. Bellon dealt a heavy blow to the ability of private parties to establish standing based on climate change-related injuries. Specifically, the decision established a "particularly daunting" bar for such parties to demonstrate the causation prong of traditional Article Ⅲ standing. First, the Ninth Circuit distinguished the Supreme Court's preeminent climate change decision, Massachusetts v. EPA, on grounds that private parties were not entitled to "special solicitude." Second, the Ninth Circuit implied that as a result, private parties were not able to demonstrate causation based on a theory of contribution. Third, the Ninth Circuit held that even if private parties were entitled to rely on contribution, they would have to demonstrate a "meaningful contribution" to global greenhouse gas concentrations, which the Ninth Circuit implied was equal to six percent of global carbon dioxide emissions. The collective impact of these interpretations led Circuit Judge Gould, writing in dissent from the Ninth Circuit's order denying rehearing en banc, to conclude that the effect of Washington Environmental Council v. Bellon is to effectively shut the door on the use of citizen suits to address climate change. This Chapter argues that the Ninth Circuit's basis for these three conclusions was unfounded, and therefore concludes that the Ninth Circuit incorrectly analyzed the element of causation. Moving forward, however, this Chapter notes that Washington Environmental Council v. Bellon will pose a difficult barrier for parties of all types to establish causation based on climate change-related injuries.