New updates from November to the Center for Climate Change Law and Arnold & Porter Climate Case Chart. Find the complete chart here.
Town of Babylon v. Federal Housing Finance Agency (2d Cir. Oct. 24, 2012): added to the “NEPA” slide. A town commenced a lawsuit against the Federal Housing Finance Agency and several other related government agencies seeking a declaration that defendants’ actions with respect to the town’s Property Assessed Clean Energy (PACE) program on properties that had PACE liens violated several federal statutes, including NEPA. The town’s PACE program allowed residential building owners to take out a low-interest loan for energy efficiency upgrades and then repay these loans over time via an annual property tax assessment. Defendants moved to dismiss. The district court granted the motion, holding that it was without jurisdiction to review FHFA’s actions in its role as a conservator and that the town lacked Article III standing since it could not demonstrate redressibility. On appeal, the Second Circuit affirmed on identical grounds.
DECISIONS AND SETTLEMENTS
Sierra Club v. 22nd District Agricultural Association (Cal. Super. Ct. Oct. 2, 2012): added to the “state NEPAs” slide. A California state court held that an environmental impact report performed on a renovation project at a fairgrounds failed to describe all GHG emissions resulting from its operations. The lawsuit challenged the impact report, prepared pursuant to the California Environmental Quality Act (CEQA), which excluded the fairgrounds’ baseline GHG emissions from its traffic assessment on the grounds that the portion of the roadway traffic attributable to the facility was unknown and thus could not be estimated. The court rejected this, holding that a good-faith effort, supported by factual data, was required.
Agriculture, Business & Labor Educational Coalition of San Luis Obispo County v. County of San Luis Obispo (Cal. Ct. App. Oct. 30, 2012): added to the “state NEPAs” slide. A coalition of community groups commenced an action concerning San Luis Obispo County’s negative declaration pursuant to CEQA concerning a series of amendments to the county’s land use regulations concerning “smart growth” principles. The coalition alleged that an environmental impact statement was required given that the amendments would have a significant impact on the environment. Among other things, the coalition alleged that the amendments would lead to an increase in GHG emissions. After a trial, the trial court entered judgment in favor of the county. On appeal, the appellate court affirmed, holding that the coalition failed to cite to any evidence that would demonstrate that the amendments would have a significant environmental impact.
Chung v. City of Monterey Park (Cal. Ct. App. Oct. 23, 2012): added to the “state NEPAs” slide. An individual commenced a lawsuit challenging Monterey Park City Council’s decision to place a measure on the ballot that would require the city to seek competitive bids for trash service without first performing an environmental review pursuant to CEQA. The trial court dismissed the suit, determining that the measure was not a “project” within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot. On appeal, the appellate court affirmed on identical grounds.
Northern Plains Resource Council v. Montana Board of Land Commissioners (Montana Sup. Ct. Oct. 23, 2012): added to the “state NEPAs” slide. The Montana Supreme Court affirmed the dismissal of a challenge to the Montana State Land Board’s decision to lease access to 1.2 billion tons of coal without first complying with the Montana Environmental Policy Act (MEPA). Plaintiffs argued that a state law exempting coal leases from environmental review under MEPA violated the Montana Constitution. The trial court disagreed, holding that the exemption only delayed the environmental review until a more detailed mining plan was presented at the permitting stage. On appeal, the Supreme Court affirmed, holding that the state’s lease of mineral interests to a coal company was not a major government action affecting the quality of the human environment as would trigger the requirement for the preparation of an environmental impact statement under MEPA. In addition, the court held that a rational basis existed for the deferral of the EIS until there was a specific proposal to consider.
San Diego Navy Broadway Complex Coalition v. Dept. of Defense (S.D. Cal. Oct. 17, 2012): added to the “NEPA” slide. A community group commenced a lawsuit against the Department of Defense concerning its revocation of Naval administrative facilities in downtown San Diego that included the development of 3.25 million square feet of space. Among other things, the coalition alleged that a 2009 environmental assessment prepared pursuant to NEPA failed to address climate change impacts related to the development, alleging that the project will emit approximately 69,000 metric tons of GHGs and that the assessment failed to quantify any proposed reduction in GHG emissions. The court granted defendant’s motion for summary judgment, holding that the assessment set forth an 11-page discussion of climate change issues which included a discussion of actions to be taken to reduce the number of vehicle trips, building energy efficiency, vehicle fuel efficiency, and renewable energy.
Colorado River Cutthroat Trout v. Salazar (D.D.C. Oct. 16, 2012): added to the “Endangered Species Act” slide. Several environmental groups commenced an against the Fish and Wildlife Service (FWS) concerning its finding that listing the Colorado River Cutthroat Trout as endangered or threatened under the Endangered Species Act was not warranted at this time. Among other things, plaintiffs alleged that the FWS did not consider the impact of climate change in assessing threats to the species. Both sides moved for summary judgment. The district court granted the FWS’ motion, holding that the agency’s finding was not contrary to the Endangered Species Act nor was it arbitrary and capricious. In particular, the court held that there was no requirement that the agency discuss climate change in its listing decisions and that it was reluctant to impose such a requirement where the issue was not raised in the plaintiffs’ comments to the agency.
Bell v. Cheswick Generating Station (W.D. Penn. Oct. 12, 2012): added to the “coal-fired power plant challenges” slide. A federal district court in Pennsylvania held that neighboring landowners of a coal-fired power plant are not entitled to monetary damages and injunctive relief for damage the plant allegedly caused to their property under common law tort theories because the Clean Air Act preempted their claims. Two individuals filed suit against the power plant on behalf of a putative class of at least 1,500 neighbors, alleging that emissions from the plant damaged their property and those living within a 1-mile radius of it. Specifically, the plaintiffs complained of odors and coal dust which allegedly required them to clean their properties constantly. The court granted the plaint’s motion to dismiss, holding that to grant the plaintiffs’ relief would require the court to alter the emissions standards for the plant under the Clean Air Act, something that would impermissibly encroach on and interfere with the CAA’s regulatory scheme.
North Dakota v. Swanson (D. Minn. Sept. 30, 2012): added to the “state NEPAs” slide. North Dakota sued Minnesota over a Minnesota law designed to reduce GHG emissions, alleging that the law violated the Commerce Clause because it would prohibit North Dakota from selling electricity to Minnesota. The lawsuit alleged that Minnesota’s Next Generation Energy Act, which took effect in 2009 and prohibits the importation of power from any new large energy facility that would contribute to state-wide carbon dioxide emissions, violates the Commerce Clause and the Supremacy Clause. According to the lawsuit, the law defines power sector carbon dioxide emissions to include carbon dioxide emitted from the generation of electricity generated outside of Minnesota but consumed in the state. Minnesota moved to dismiss certain claims on various grounds. The district court granted the motion in part, holding that North Dakota had stated a prima facie claim that the Next Generation Energy Act was preempted by federal law. However, it dismissed claims alleging violations of the Privileges and Immunities Clause, holding that the law did not discriminate against North Dakota residents in obtaining employment in Minnesota. In addition, the court dismissed claims alleging violations of the Due Process Clause, holding that North Dakota failed to establish a constitutionally protected property interest.
WildEarth Guardians v. Lamar Utilities Board (D. Col. Sept. 28, 2012): added to the “challenges to coal-fired power plants” slide. A federal district court in Colorado held that a coal-fired power plant violated the Clean Air Act by not meeting the maximum achievable control technology (MACT) standard. In 2004, the authority that owned the plant decided to upgrade the plant and change it from a natural gas-fired plant to a coal-fired one, which would have the effect of increasing its generating capacity. Subsequently, EPA directed the authority to obtain a new source MACT determination. The authority argued that it did not have to obtain such a determination because it was not a major source of hazardous air pollutants. The court disagreed, finding that the plant was a major source of hazardous air pollutants and thus violated the MACT standard.
Shurtleff v. EPA (D.D.C. Sept. 26, 2012): added to the “other statutes” slide under the “FOIA” subsection. The Attorney General of Utah commenced a lawsuit against EPA pursuant to the Freedom of Information Act (FOIA) seeking documents concerning the agency’s so-called “endangerment” finding that concluded that greenhouse gases could be regulated under the Clean Air Act. EPA withheld certain documents, claiming that such documents were except from disclosure. After the lawsuit was filed, EPA moved for summary judgment. A magistrate judge recommended that the motion be granted in part, holding that the agency adequately conducted a search of relevant documents concerning the FOIA request, but that certain documents withheld pursuant to the attorney-client privilege should be disclosed.
Californians for Renewable Energy v. Dept. of Energy (D.D.C. May 17, 2012): added to the “other statutes” slide under the “Energy Policy Act” subsection. A nonprofit renewable energy group filed a lawsuit against the Department of Energy (DOE), alleging that the agency had failed to promulgate regulations concerning the American Recovery and Reinvestment Act’s modification to the Energy Policy Act as to the selection of applicants for loan guarantees and implementation of the renewable energy program. The program permits the Secretary of Energy to guarantee loans for energy projects that reduce or otherwise eliminate GHG emissions. The district court granted DOE’s motion to dismiss, holding that generalized allegations that the group would suffer environmental harms were insufficient to demonstrate an injury.
NEW CASES, MOTIONS AND NOTICES
Petition to Massachusetts DEP (Mass. DEP, filed Nov. 1, 2012): added to the “common law claims” under the “Public Trust Doctrine” subsection. Massachusetts students filed a petition calling for Massachusetts to ensure that carbon dioxide emissions from fossil fuel are reduced by 6 percent per year beginning in 2013 and to consider ways to reduce GHG emissions by more than 25 percent by 2020. The petition calls on Massachusetts Department of Environmental Protection to expand its existing GHG reporting program to include every substantial source of GHGs in Massachusetts, and to adopt implementing regulations.
Mann v. The National Review (D.C. Super. Ct., filed Oct. 24, 2012): added to the “climate change protestors and scientists” slide. Michael Mann, an influential climatologist who was accused of manipulating climate change data, filed a defamation lawsuit against the National Review and Competitive Enterprise Institute for accusing him of academic fraud and for comparing him to convicted child molester Jerry Sandusky.
Plant Oil Powered Diesel Fuel Systems, Inc. v. Dept. of Transportation (D.C. Cir. Oct. 23, 2012): added to the “challenges to federal regulation” slide. A clean diesel company filed a lawsuit challenging EPA’s and the Department of Transportation’s joint fuel economy greenhouse gas emissions standards for passenger vehicles and heavy-duty truck. In particular, the lawsuit alleges that the regulations only measure greenhouse gases from the tailpipe and do not account for producing the fuels.
Peabody Western Coal Co. v. EPA (D.C. Cir., filed Oct. 19, 2012): added to the “challenges to coal-fired power plants” slide. A coal company sought review of EPA’s approval of its Title V operating permit for a surface coal mining operation on a Navajo tribal reservation in Arizona and the agency’s Environmental Appeals Board’s subsequent denial of the company’s petition for review. The company objected to the permit issued by the Navajo Nation Environmental Protection Agency under authority delegated to it by EPA. The company objected to the permit on the ground that the tribal agency should have cited only federal regulations rather than tribal regulations. The EAB rejected this argument, stating that state agencies with delegated authority may cite both state and federal laws.
Farb v. Kansas (Kansas Dist. Ct., filed Oct. 18, 2012): added to the “common law claims” slide under the “Public Trust Doctrine” subsection. Our Children’s Trust, an environmental group, filed a lawsuit in Kansas claiming that the state has an obligation to help prevent climate change and to reduce carbon dioxide emissions under the Public Trust Doctrine. The group has filed a series of lawsuits and petitions in several states, requesting that the environmental agencies in these states adopt rules to reduce statewide GHG emissions from fossil fuels pursuant to the Public Trust Doctrine.
Competitive Enterprise Institute v. EPA (D.D.C. Sept. 28, 2012): added to the “other statutes” slide under the “FOIA” subsection. A conservative think tank filed a lawsuit against EPA pursuant to FOIA seeking disclosure of records relating to its top administrators’ nonpublic email accounts concerning climate change. The complaint seeks documents related to the agency’s alleged “campaign against coal-fired power” which the complaint alleged was exhibited through EPA limits on air toxics emissions generated by coal-fired power plants and EPA’s so-called “endangerment” finding that GHG emissions pose a danger to public health.
Petition to BLM to Require Reductions of Emissions of Methane Gas (BLM, filed Sept. 11, 2012): added to the “other statutes” slide under the “Mineral Leasing Act” subsection. Three environmental groups filed a petition with the Bureau of Land Management calling on the agency to require oil and gas companies operating on public lands to reduce their methane emissions. The petition urges the agency to require such companies to install readily available pollution control measures that would reduce methane gas leaked into the atmosphere during the drilling process. According to the petition, approximately 126 billion cubic feet of gas are vented and flared from federal oil and gas leases every year.