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Washington Environmental Council v. Bellon

United States Court of Appeals, Ninth Circuit

February 3, 2014

WASHINGTON ENVIRONMENTAL COUNCIL; Sierra Club, Washington State Chapter, Plaintiffs-Appellees,
v.
Maia D. BELLON, Director of Washington State Department of Ecology, in her official capacity; Mark Asmundson, Director, Northwest Clean Air Agency, in his official capacity; Craig T. Kenworthy, Director, Puget Sound Clean Air Agency, in his official capacity, Defendants-Appellants. Washington Environmental Council; Sierra Club, Washington State Chapter, Plaintiffs-Appellees,
v.
Maia D. Bellon; Mark Asmundson, Director, Northwest Clean Air Agency, in his official capacity; Craig T. Kenworthy, Defendants, and Western States Petroleum Association, Intervenor-Defendant-Appellant. Washington Environmental Council; Sierra Club, Washington State Chapter, Plaintiffs-Appellants,
v.
Mark Asmundson, Director, Northwest Clean Air Agency, in his official capacity; Craig T. Kenworthy, Director, Puget Sound Clean Air Agency, in his official capacity; Maia D. Bellon, Director of Washington State Department of Ecology, in her official capacity, Defendants-Appellees, and Western States Petroleum Association, Intervenor-Defendant.

Argued and Submitted July 10, 2013.

Laura J. Watson (argued), Assistant Attorney General; Robert M. McKenna, Attorney General; and Katharine G. Shirey, Assistant Attorney General, Olympia, WA; Svend A. Brandt-Erichsen, Marten Law PLLC, Seattle, WA; Jennifer A. Dold, Puget Sound Clean Air Agency, Seattle, WA, for Defendants-Appellants/Cross-Appellees.

Page 1076

Janette K. Brimmer (argued), Earthjustice Legal Defense Fund, Seattle, WA; Brian W. Chestnut and Joshua A. Osborne-Klein, Ziontz Chestnut Varnell Berley & Slonim, Seattle, WA, for Plaintiffs-Appellees/Cross-Appellants.

Jeffrey W. Leppo (argued), Matthew Cohen, and Jason T. Morgan, Stoel Rives LLP, Seattle, WA, for Intervenor-Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Chief District Judge, Presiding. D.C. No. 2:11-cv-00417-MJP.

Before: ANDREW J. KLEINFELD, MILAN D. SMITH, JR., and N. RANDY SMITH, Circuit Judges.

ORDER

A judge of this court made a sua sponte call for a vote on rehearing this case en banc, pursuant to General Order 5.4(c)(3), but a majority of the nonrecused active judges of the court failed to vote in favor of rehearing this case en banc.[1]

Rehearing en banc is DENIED.

M. SMITH, Circuit Judge, with whom N.R. SMITH, Circuit Judge, joins, concurring with the denial of rehearing en banc:

A majority of this court's active, nonrecused judges has wisely declined to vote in favor of rehearing this case en banc.

Our holding in this case is compelled by the Supreme Court's decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While Judge Gould clearly favors a different result, his dissent ignores the facts before us, and fails to acknowledge the clear precedent by which we are bound. I offer a few brief thoughts in response to his dissent.

1. Judge Gould's dissent fails to distinguish Lujan, which established stringent standing requirements for private litigants seeking to challenge the government's regulation of third parties. Lujan, 504 U.S. at 561-69, 112 S.Ct. 2130.

In Lujan, environmental groups challenged federal regulations that limited the reach of the Endangered Species Act (ESA), and they sought an injunction requiring the Secretary of the Interior to promulgate a new regulation. Lujan, 504 U.S. at 558-59, 112 S.Ct. 2130. The Supreme Court held that the Lujan plaintiffs lacked standing. The Court explained: " when the plaintiff is not himself the object of the government action or inaction he challenges, standing ... is ordinarily substantially more difficult to establish." Id. at 562, 112 S.Ct. 2130 (internal quotation marks omitted). This is so because when " a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else ... causation ...


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