But Beistline didn't buy it. He denied the motion to dismiss, reasoning that Shell has standing because, if the environmental groups successfully challenged Shell's permits, that "would constitute an injury-in-fact to Shell."
Shortly after his decision, 10 of the environmental groups did indeed sue the government in a bid to invalidate Shell's oil spill response plans. They also asked Beistline to certify his order for an immediate review by the Ninth Circuit.
In September he agreed—grudgingly. "The court understands that the Ninth Circuit is without controlling precedent concerning the instant matter," he wrote. But in bold type, he also stated that he did not personally believe "exceptional circumstances" exist to merit such a review.
At press time the Ninth Circuit had not yet said whether it would review the order. Shell lawyers argue that there is little reason to do so, since the suit challenging the permits has been consolidated with their bid for a declaratory judgment. Regardless, the lower court will review Shell's oil spill plans.
Still, there is the question of precedent. Baker & Hostetler partner Christopher Marraro, who is not involved in the case, says that the decision, if it stands, could "have great utility in the energy project area," where litigation risk plays a large role in the decision to finance projects.
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