Today, the Washington State Department of Ecology argued in the Ninth Circuit Court of Appeals that it should not be required to regulate greenhouse gas emissions from oil refineries, and that citizens should not be able to sue under the Clean Air Act to compel such regulations. The State previously appealed a decision of the federal district court requiring Ecology and local clean air agencies to comply with the federal Clean Air Act and regulate greenhouse gas emissions from Washington’s five refineries, the second largest stationary source of climate change pollutants in the state.
“Our state prides itself on our leadership on climate change, as well as our strong legal protections for public health and our environment. This appeal is a big step backwards,” said Becky Kelley, Deputy Director at Washington Environmental Council.
“What does Washington State believe in?” said Aaron Robins with the Washington State Chapter of the Sierra Club. “On the one hand, we are pushing forward on climate policy. On the other, the State is undermining concrete steps we can take to reduce climate pollution right away from a significant source of that pollution. It just doesn’t make sense.”
In December 2011, a federal judge ruled that the Ecology, Northwest Clean Air Agency, and Puget Sound Clean Air Agency unlawfully failed to regulate climate change pollution from the five oil refineries operating in Washington State.
The decision was the result of a March 2011 lawsuit initiated by Washington Environmental Council and the Sierra Club. The lawsuit successfully argued that the state agencies had violated their obligation under Washington’s Clean Air Act State Implementation Plan—a requirement of federal law—to determine and impose “reasonably available control technologies” on refineries to reduce climate change pollution. Such technologies include energy efficiency measures to make the refineries run more efficiently, thus emitting less greenhouse gas pollution.
All five oil refineries in Washington are owned by big oil companies—BP, ConocoPhillips, Shell Oil, Tesoro and U.S. Oil. Collectively, these oil refineries are responsible for 6 million metric tons of carbon pollution annually, primarily in the form of nitrous oxide, methane, and carbon dioxide. According to the EPA’s carbon equivalent calculator, that’s equal to the annual emissions of 1.25 million cars.
The Western States Petroleum Association intervened in the case on behalf of the big oil companies that operate the refineries, seeking to avoid regulation of their greenhouse gas emissions. The oil companies and state and local agencies have tried new arguments on appeal that seek to bar the courtroom door to citizens trying to ensure that the state and local agencies meet their responsibilities laid out in the clean air plan.
“There are so many ways that this administration is on the wrong side of this case,” said Janette Brimmer, an attorney with Earthjustice, referring to arguments the state is making in its appeal. “Not only are they using state resources to fight simple requirements to reduce climate change pollution in the state, they are also aggressively seeking to take away citizens’ rights to go to court to ensure agencies and large polluting industries follow the law.”
Earthjustice and the law firm of Ziontz, Chestnut, Varnell, Berley & Slonim are representing Sierra Club and Washington Environmental Council in the lawsuit.
The successful 2011 lawsuit argued that state agencies have the duty to regulate climate pollution from oil refineries because this pollution fits within the definition of “air contaminants” in Washington’s State Implementation Plan. This plan, required by the Clean Air Act, developed by Ecology, and approved by the Environmental Protection Agency, describes the tools that Washington can and must use to meet air quality standards required by the federal Clean Air Act.