by J. Cullen Howe
New updates from December to the Center for Climate Change Law and Arnold & Porter Climate Case Chart. Find the complete chart here.
Native Village of Kivalina v. ExxonMobil Corporation (9th Cir. Nov. 11, 2012): added to the “common law claims” slide. The Ninth Circuit denied a motion for a rehearing en banc concerning its decision affirming the dismissal of a lawsuit by Inupiat Native Alaskans seeking to recover money damages from a number of energy companies for GHG emissions from the companies’ operations that plaintiffs alleged eroded sea ice where the village is located. The appeals court held that plaintiffs could not sue under a theory of public nuisance given that this theory had been displaced by the Clean Air Act. The lawsuit alleged that as a result of climate change, the Arctic sea ice that protects the Kivalina coast from storms has been diminished and that resulting erosion will require relocation of the residents at a cost of between $95 and $400 million.
DECISIONS AND SETTLEMENTS
Cleveland National Forest Foundation v. San Diego Ass’n of Government (Cal. Super. Ct. Dec. 3, 2012): Several environmental groups filed a lawsuit challenging a regional transportation plan developed by the San Diego Association of Governments on the grounds that it failed to address, among other things, GHG emissions and climate change impacts. Specifically, the lawsuit alleges that the defendant violated the California Environmental Quality Act (CEQA) by failing to address these issues in its draft environmental impact report (EIR). The trial court agreed, holding that the EIR did not sufficiently analyze the GHG impacts of the plan through 2050.
Sierra Club v. County of Tehama (Cal. Ct. App. Nov. 30, 2012): added to the “state NEPAs” slide. An environmental group filed a lawsuit alleging that Tehama County’s general plan update violated CEQA by, among other things, misrepresenting greenhouse gas emissions in its EIR. The trial court denied the petition. On appeal, the appellate court affirmed, holding that the methodology for quantifying such emissions in the EIR was supported by substantial evidence.
Merced Alliance for Responsible Growth v. City of Merced (Cal. Ct. App. Nov. 29, 2012): added to the “state NEPAs” slide. A community group challenged the City of Merced’s approval of a regional distribution center in the city boundaries. The petition alleged that the EIR prepared for the proposed project did not address the project’s impact on greenhouse gases and climate change. The state trial court dismissed the petition. On appeal, the appellate court affirmed, holding that that EIR adequately addressed these issues.
Habitat and Watershed Caretakers v. City of Santa Cruz (Cal. Ct. App. Nov. 27, 2012): added to the “state NEPAs” slide. A community group filed a lawsuit alleging that the City of Santa Cruz failed to comply with CEQA when it certified an EIR to amend the city’s “sphere of influence” to include an undeveloped portion of the University of California at Santa Cruz campus to provide water and sewer services to a new development. Among other things, the petition alleged that the EIR did not adequately address the impacts of the project on the environment, including climate change. The trial court dismissed the petition. On appeal, the appellate court reversed, holding that the EIR inadequately addressed feasible alternatives to the project.
NEW CASES, MOTIONS AND NOTICES
American Petroleum Institute v. EPA (D.C. Cir., filed Nov. 26, 2012); American Fuel & Petroleum Manufacturers v. EPA (D.C. Cir., filed Nov. 21, 2012): added to the “challenges to federal action” slide. Two industry associations filed lawsuits against EPA challenging the agency’s 2013 volume requirements for biomass-based diesel fuel. The final rule mandates the use of 1.28 billion gallons of biodiesel in 2013, a 28% increase from the 2012 requirement. According to the lawsuits, the costs for producing the fuel greatly outweigh the benefits and fraudulent biofuel credits undermine the program.
Notice of Intent to Sue (EPA, filed Nov. 27, 2012): added to the “Clean Air Act” slide. New York University’s Institute for Policy Integrity served a notice of intent to sue EPA for its failure to propose and adopt regulations for a cap-and-trade system limiting emissions from motor vehicle and aircraft fuels. In 2009, the group served a petition on the agency asking EPA to making a finding under Section 211 of the CAA that emissions from motor fuels could endanger public welfare and then propose a cap-and-trade system to control emissions from fuels used in mobile sources. It also asked that the agency make a finding under Section 231 that aircraft emissions endanger public welfare and then propose a joint rulemaking with the Federal Aviation Administration to incorporate aircraft fuels into the cap-and-trade system. EPA failed to act on the petition, prompting the notice of intent to sue.
American Forest & Paper Association v. EPA (D.C. Cir., filed Nov. 16, 2012): added to the “challenges to federal action” slide. An industry group filed a lawsuit alleging that the emissions factors developed by EPA as part of its GHG reporting requirements for paper mills and biomass-fired boilers exceed actual measured emissions and should be revised. According to the lawsuit, emissions factors the agency requires paper mills and boilers to use when calculating their methane and nitrous oxide emissions greatly overstate actual emissions. EPA’s greenhouse gas reporting rule requires facilities such as power plants, petroleum refineries, and manufacturing plants with emissions greater than 25,000 tons per year to submit annual reports.
California Chamber of Commerce v. California Air Resources Board (Cal. Super. Ct., filed Nov. 13, 2012): added to the “challenges to state action” slide. The California Chamber of Commerce filed a lawsuit seeking to invalidate the state’s auction of GHG emissions allowances, alleging that the California Air Resources Board (CARB), which runs the auctions, lacks authority to do so under A.B. 32. The lawsuit alleges that the allowances are illegal taxes and that, in adopting A.B. 32, state lawmakers did not intend for CARB to raise revenue through an auction mechanism. The suit was filed the day before the auction took place, and no injunctive relief was sought.
Competitive Enterprise Institute v. U.S. Treasury Dept. (D.D.C., filed Nov. 13, 2012): added to the “other statutes” slide under the “Freedom of Information Act” subsection. A conservative legal foundation filed a lawsuit against the Treasury Department seeking agency emails concerning a possible federal carbon tax. According to the agency, the Obama Administration has no plans to propose a carbon tax and any such legislation would need Republican support. The lawsuit seeks emails from the agency’s Office of Energy and Environment that contain the word “carbon.”
Public Service Co. of Oklahoma v. EPA (10th Cir. Nov. 13, 2012): added to the “challenges to coal-fired power plants” slide. EPA solicited public comment on a proposed settlement agreement in which the Public Service Company of Oklahoma would take one coal-burning unit out of commission and install better pollution control equipment on another. The proposed agreement would settle a lawsuit brought by a company that owns the power plant against EPA that challenges a final rule partially disapproving Oklahoma’s state implementation plan.
Environmental Integrity Project v. Jackson (D.D.C., proposed consent decree filed Oct. 18, 2012): added to the “coal-fired power plant challenges” slide. EPA agreed to respond by January 15, 2013 to a petition asking the agency to object to a Clean Air Act permit issued by Texas regulators for a coal-fired power plant. In their petition, plaintiffs asked EPA to object to the permit because it incorporated by reference a Texas pollution control standard permit. EPA disapproved Texas’s proposed clean air plan revision incorporating the standard permit for pollution control projects into the Texas plan in September 2010.
Petition to EPA (EPA, filed October 18, 2012): added to the “other statutes” slide under “Clean Water Act.” The Center for Biological Diversity filed a petition with EPA requesting that the agency revise state water quality standards for marine pH under the Clean Water Act to address ocean acidification. The petition alleges that ocean acidification is occurring as a result of anthropogenic carbon dioxide emissions. The petition alleges that the marine pH water quality standards of 15 coastal states and territories exceed EPA’s recommended water quality criterion, and that these standards are inadequate to product aquatic life from the harmful effects of ocean acidification.