Update #61 April 2014
Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-US climate litigation charts. The April additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)
FEATURED DECISION
In re La Paloma Energy Center, LLC, PSD Appeal No. 13-10 (EAB Mar. 14, 2014): added to the “Stop Government Action/Project Challenges” slide. The U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) rejected Sierra Club’s challenge to a Prevention of Significant Deterioration permit issued by EPA Region 6 for a natural gas-fired power plant in Texas. EAB was not persuaded by Sierra Club’s argument that Region 6 was required to consider each of three combined cycle natural gas-fired combustion turbine models as a separate technology in its BACT analysis. EAB deferred to Region 6’s determination that the differences in the greenhouse gas (GHG) emissions from each of the three proposed turbine models were “marginal,” and concluded that Region 6 “did not clearly err or abuse its discretion in determining that the GHG emission limits for all three turbine models represent BACT for highly efficient combined cycle combustion turbines.” EAB also ruled that Region 6 had not abused its discretion in determining that a solar thermal energy component would “redefine the source” and therefore could be excluded as a potential emissions control alternative.
DECISIONS AND SETTLEMENTS
In re Regional Greenhouse Gas Initiative (RGGI), No. A-4878-11T4 (N.J. Super. Ct. App. Div. Mar. 25, 2014): added to the “Challenges to State Action” slide. The New Jersey Superior Court, Appellate Division, agreed with Environment New Jersey and the Natural Resources Defense Council that the New Jersey Department of Environmental Protection (NJDEP) should have followed formal rulemaking procedures to repeal or amend regulations implementing the State’s participation in the Regional Greenhouse Gas Initiative (RGGI). After Governor Chris Christie announced in 2011 that the State would withdraw from RGGI’s carbon dioxide cap-and-trade program, NJDEP did not initiate formal repeal procedures for its RGGI regulations but instead posted a notice on its website that power plants would no longer be required to comply with the regulations’ requirements as of January 2012. The appellate court rejected NJDEP’s contention that it was not necessary to repeal the regulations because their only purpose was to implement New Jersey’s participation in RGGI. The court determined that formal rulemaking was required because the regulations “are worded quite broadly and can be read to require action by [NJDEP] absent participation in a regional greenhouse program.”
Center for Biological Diversity v. Department of Fish and Wildlife, No. B245131 (Cal. Ct. App. Mar. 20, 2014): added to the “State NEPAs” slide. The California Court of Appeal reversed a trial court judgment that had overturned California Department of Fish and Wildlife (DFW) actions in connection with a 12,000-acre commercial-residential development known as Newhall Ranch in northwestern Los Angeles County. The trial court had held that the environmental impact report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA) used a baseline for assessing cumulative impacts of the project’s GHG emissions that was inappropriate as a matter of law. In an unpublished portion of the appellate court’s decision, the court ruled that a substantial evidence standard applied to judicial review of the selection of a baseline, and that substantial evidence supported DFW’s baseline determination as well as its determination regarding the significance of the impacts of the project’s GHG emissions.
Citizens Actions Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc., No. 93A02-1301-EX-76 (Ind. Ct. App. Mar. 19, 2014): added to the “Challenges to Coal-Fired Power Plants” slide. The Indiana Court of Appeals rejected challenges to a regulatory settlement involving the construction of an integrated coal gasification combined cycle generating facility in Edwardsport, Indiana. The settlement agreement was adopted in 2012 by the Indiana Utility Regulatory Commission, which had issued the Certificates of Public Convenience and Necessity (CPCNs) for the facility in 2007. Intervenors had requested that the CPCNs be modified to require mitigation of carbon emissions, citing concerns about the risk of future costs to ratepayers. On appeal, the intervenors accused the Commission of adopting an “‘ostrich approach’ to global climate change and the role of carbon emissions, leaving ratepayers at financial risk in the future.” In its nonprecedential decision, the court noted that there currently was no federal mandate requiring carbon mitigation, and said that it was not persuaded “that the Commission was derelict in its statutory duties when it declined to revisit the issue of potential future costs of carbon emissions at the Edwardsport plant. Nor can the settlement be considered contrary to law because it does not incorporate anticipated changes in the law.”
Monroe Energy, LLC v. Environmental Protection Agency, No. 13-1265 (D.C. Cir. Mar. 11, 2014): added to the “Challenges to Federal Action/Other Rules” slide. In this challenge to the 2013 renewable fuel standard, the D.C. Circuit Court of Appeals granted an unopposed motion by EPA to sever and hold in abeyance issues pertaining to the cellulosic biofuel standard, which EPA agreed to reconsider after learning that producers had lowered their production estimates. The D.C. Circuit established a new case (No. 14-1033) and required status reports on EPA’s reconsideration of the cellulosic biofuel standard every 60 days, starting on March 28. Oral argument on the challenge to other aspects of the 2013 renewable fuel standard will be heard on April 7, 2014.
California Clean Energy Committee v. City of Woodland, No. C072033 (Cal. Ct. App. Feb. 28, 2014): added to the “State NEPAs” slide. In an unpublished decision, the California Court of Appeal ruled that the City of Woodland had not complied with CEQA in approving the development of a regional shopping center on undeveloped agricultural land. In doing so, the appellate court reversed a trial court decision in favor of the City. Among the inadequacies in the CEQA review was the City’s failure to assess the project’s transportation, construction, and operation energy impacts. The appellate court said that the City was required to investigate renewable energy options that might be available or appropriate for the project.
Sierra Club v. Energy Future Holdings Corp., No. 12-cv-108 (W.D. Tex. Feb. 26, 2014): added to the “Challenges to Coal-Fired Power Plants” slide. After a three-day bench trial in this citizen suit alleging that the Big Brown Steam Electric Station in Freestone County, Texas violated the Clean Air Act, the judge ruled from the bench for the defendants on February 26, 2014. The court found that plaintiff had not established that a penalty should apply and denied all requested relief. Defendants submitted proposed findings of fact and conclusions of law on March 10, 2014.
In re Consolidated Environmental Management, Inc. – Nucor Steel, Saint James Parish, Louisiana, Pet. Nos. VI-2010-05, VI-2011-06, and VI-2012-07 (EPA Jan. 30, 2014): added to the “Stop Government Action/Project Challenges” slide. The EPA administrator issued an order rejecting requests by the Louisiana Environmental Action Network (LEAN) and Sierra Club that EPA object to GHG provisions in a Title V permit issued by the Louisiana Department of Environmental Quality for a facility that produced feedstock for steelmaking. LEAN and Sierra Club had contended that the permit was not in compliance with Clean Air Act requirements because it did not require best available control technology (BACT) for GHG emissions and did not specify procedures for estimating GHG emissions. The order was signed on January 30, 2014, and notice was published in the Federal Register on March 21, 2014.
NEW CASES, MOTIONS, AND NOTICES
Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va., filed Mar. 24, 2014): added to the “Challenges to Federal Action/Other Rules” slide. Coal companies commenced a federal lawsuit seeking to compel EPA to undertake an evaluation pursuant to section 321 of the Clean Air Act of the effects of administration and enforcement of the Clean Air Act on employment. Plaintiffs contend that EPA “has continued to administer and enforce the Clean Air Act in a manner that is causing coal mines to close, costing hard-working Americans their jobs, and shifting employment away from areas rich in coal resources to areas with energy resources preferred by [EPA].” Plaintiffs seek an injunction barring EPA from promulgating new Clean Air Act regulations that affect the coal industry until the employment evaluation is completed.
Rocky Mountain Farmers Union v. Corey, No. 13-1148 (U.S. Mar. 20, 2014); American Fuel & Petrochemical Manufacturers Association v. Corey, No. 13-1149 (U.S. Mar. 20, 2014): added to the “Challenges to State Actions” slide. Two petitions for writs of certiorari were filed in the U.S. Supreme Court seeking review of the Ninth Circuit decision that revived California’s Low Carbon Fuel Standard (LCFS) after a district court had ruled that it violated the dormant Commerce Clause. The petition filed by the Rocky Mountain Farmers Union and other parties associated with the ethanol industry presents two questions: (1) whether the Ninth Circuit erred “in concluding that the [LCFS] does not facially discriminate against interstate commerce” and (2) whether the Ninth Circuit erred “in concluding that the [LCFS] is not an extraterritorial regulation.” The petition filed by the American Fuel & Petrochemical Manufacturers Association, American Trucking Associations, and Consumer Energy Alliance presents one question: “Whether [the LCFS] is unconstitutional because it discriminates against out-of-state fuels and regulates interstate and foreign commerce that occurs wholly outside of California.”
United States v. Miami-Dade County, Florida, No. 1:12-cv-24400-FAM (S.D. Fla. Mar. 6, 2014): added to the “Adaptation” slide. The federal district court for the Southern District of Florida declined to approve the consent decree proposed by the United States, Florida, and Miami-Dade County to resolve alleged violations of the Clean Water Act by the County in connection with its ownership and operation of a publicly owned treatment works. The court suggested that the parties submit further pleadings and further suggested that the appointment of a special master to oversee and monitor the County’s progress in implementing the repairs required by the consent decree, as well as increased penalties for failures to make the repairs, might assuage the court’s concerns regarding implementation. The court indicated, however, that “remaining objections”—presumably including objections raised by intervenors as to the consent decree’s failure to take climate change-related sea level rise into consideration—were not sufficient to overcome the presumption in favor of approval of the consent decree. On March 21, 2014, the federal and state plaintiffs submitted supplemental comments on the consent decree in which they reported that they had reached agreement with the County to double the penalties that would apply for sanitary sewer overflows and failures to meet deadlines and “submit timely deliverables.” The parties urged the court to accept the option of “heightened reporting requirements” in lieu of the appointment of a special master, which they said would cause unnecessary expense and delay.
Office of Management and Budget, Response to Petition for Correction of the “Social Cost of Carbon for Regulatory Impact Analysis under Executive Order 12866” Technical Support Documents (Jan. 24, 2014);Request for Reconsideration (Feb. 24, 2014): added to the “Challenges to Federal Action/Other Rules” slide. On February 24, 2014, a coalition of organizations representing various industry and business sectors submitted a Request for Reconsideration (RFR) to the Office of Management and Budget (OMB) regarding OMB’s January 2014 responseto the organizations’ September 2013 Petition for Correction (PFC) of Technical Support Documents (TSDs) prepared as the basis for Social Cost of Carbon (SCC) estimates used by federal agencies in their decision making. In the January 2014 response, OMB addressed the five concerns enumerated in the PFC but concluded that the SCC estimates “provide valuable and critical insight” for regulatory decision making. The January 2014 response also referred the organizations to the ongoing public comment process on the SCC TSDs, which sought comments “on topics that are consistent with those raised” in the PFC. The RFR called OMB’s January 2014 response “unsatisfactory,” contending that OMB “supported its terse conclusion with little more than a ‘cut-and-paste’ reiteration of the precise TSD language that concerned the [organizations].” The RFR catalogs the January 2014 response’s alleged shortcomings, including that it had not remedied the “opacity” that characterized the development of the SCC estimates. The organizations also contend that OMB did not comply with its own Information Quality Act guidelines in the development of either the TSDs or the 2014 response.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Castletown Estates Ltd, Carmarthenshire County Council v. Welsh Ministers (United Kingdom, High Court of Justice Queen’s Bench Division [2013] EWHC 3293 (Admin)): Claimants challenged the decisions of the Welsh Ministers to refuse a planning permit for a mixed-use redevelopment project. At issue was the precautionary approach employed by the Minister to assess future flood risks taking into account climate change. The claimants alleged that the Minister had used inaccurate flood and development advice maps to assess the risk of flooding. The court found that the Minister’s determination was fair and reasonable and dismissed the application for appeal. —Added to “Climate Adaptation” slide.
Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment (United Kingdom, High Court of Justice Queen’s Bench Division [2013] NZHC 3125 (Admin)): A Kiribati citizen appealed after he was denied refugee status by the New Zealand Immigration and Protection Tribunal. The appellant argued that he was a climate change refugee because rising ocean levels and environmental degradation have caused economic hardship that is forcing citizens to leave the island. The court found that the impacts of climate change on Kiribati did not qualify the appellant for refugee status because the applicant was not subjected to persecution required under the 1951 United Nations Convention relating to the Status of Refugees. In addition to finding a lack of serious harm or serious violation of human rights, the court also expressed concern about expanding the scope of the Refugee Convention and opening the door to millions of people who face hardship due to climate change. —Added to “Human Rights” slide.
