Update #64 July 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 July additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)
Utility Air Regulatory Group v. EPA, Nos. 12–1146, 12–1248, 12–1254, 12–1268, 12–1269, and 12–1272 (U.S. June 23, 2014): added to the “Challenges to Federal Action” slide. The United States Supreme Court ruled that the United States Environmental Protection Agency (EPA) had impermissibly interpreted the Clean Air Act as compelling or permitting a facility’s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA’s determination that “anyway” sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ “best available control technology” (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions “would place plainly excessive demands on limited governmental resources” and “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court rejected EPA’s attempt to fix these problems by “rewriting” statutory emissions thresholds, which the Court said “would deal a severe blow to the Constitution’s separation of powers.” The Court went on to hold, however, that the Clean Air Act’s text clearly supported an interpretation that required BACT for “anyway” sources and that applying BACT to greenhouse gases “is not so disastrously unworkable” and “need not result in such a dramatic expansion of agency authority” as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source’s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase “any air pollutant.” Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it “curious” that the Court departed from a literal interpretation of “pollutant” in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for “anyway” sources.
DECISIONS AND SETTLEMENTS
Rocky Mountain Farmers Union v. Corey, No. 13-1148; American Fuel & Petrochemical Manufacturers Association, No. 13-1149; Corey v. Rocky Mountain Farmers Union, No. 13-1308 (U.S. cert. denied June 30, 2014): added to the “Challenges to State Action” slide. The U.S. Supreme Court denied three petitions seeking review of the Ninth Circuit decision that reversed district court rulings that California’s Low Carbon Fuel Standard (LCFS) violated the dormant Commerce Clause. Two of the petitions (Rocky Mountain Farmers Union, American Fuel & Petrochemical Manufacturers Association) had been filed by the parties who had challenged the LCFS; their petitions sought review of the Ninth Circuit’s conclusions that the LCFS did not facially discriminate against interstate commerce and did not constitute extraterritorial regulation. The third was a conditional cross-petition filed by the State of California defendants, who sought review on the issues of whether Section 211(c)(4)(B) of the Clean Air Act (authorizing California to set emissions requirements) barred petitioners’ challenges and whether changes to the LCFS regulations’ treatment of 2011 California crude oil sales rendered some aspects of petitioners’ challenges moot.
High Country Conservation Advocates v. United States Forest Service, No. 1:13-cv-01723-RBJ (D. Colo. June 27, 2014): added to the “Stop Government Action/NEPA” slide. The federal district court for the District of Colorado ruled that the United States Forest Service and the United States Bureau of Land Management did not take the required “hard look” under the National Environmental Policy Act at the impacts of increased greenhouse gas emissions associated with actions that expanded mining in a part of Colorado’s North Fork Valley called the Sunset Roadless Area. The three actions challenged in the lawsuit were the 2012 Colorado Roadless Rule, which included an exemption for temporary road construction or reconstruction associated with coal mining in the North Fork Valley; lease modifications that added new land to preexisting mineral leases; and approval of Arch Coal’s exploration plan for the additional land. As an initial matter, the court concluded that plaintiffs—three environmental and conservation groups—had standing to bring all of their claims. Citing the D.C. Circuit’s decision in WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013), the court rejected defendants’ argument that the alleged failure to adequately analyze greenhouse gas emissions resulting from the Colorado Roadless Rule was unrelated to plaintiffs’ alleged concrete injury of harm to their recreational interests in the Sunset Roadless Area. The court went on to find that the agencies had not adequately disclosed and considered the impacts of greenhouse gas emissions in several respects. First, the court faulted the agencies for failing to use the “social cost of carbon protocol” developed by a federal interagency working group in the analysis of the lease modification’s impacts. The draft environmental review documents had included an assessment of social costs of carbon related to disturbance of forested areas and methane emissions from mining, but the discussions were removed in the final environmental impact statement (FEIS), apparently because use of the protocol was deemed controversial. The court found the explanation for omitting the social cost of carbon protocol from the FEIS to be arbitrary and capricious. The court also rejected the agencies’ justifications for not quantifying methane emissions from mining associated with the Colorado Roadless Rule and for not estimating greenhouse gas emissions associated with combustion of the mined coal. Among other things, the court said that the detailed economic analysis of the benefits of expanded mining was at odds with defendants’ arguments that future emissions associated with the mining were too speculative to support a quantitative analysis. The court enjoined implementation of the exploration plan, and asked the parties to confer and attempt to reach agreement on an appropriate remedy.
Communities for a Better Environment v. Metropolitan Transportation Commission, No. RG13692189 (Cal. Super. Ct. June 18, 2014): added to the “State NEPAs” slide. Communities for a Better Environment and Sierra Club reached an agreement with the Metropolitan Transportation Commission and the Association of Bay Area Governments to resolve a California Environmental Quality Act (CEQA) challenge to Plan Bay Area, a regional land use and transportation plan intended to achieve the greenhouse gas emissions reduction goals of AB 32. Respondents agreed to undertake certain analyses in the next update to the plan, including disclosing total greenhouse gas emissions both with and without the implementation of state-wide emissions reduction programs, studying the effects of the creation of express lanes on greenhouse gas emissions and vehicle miles traveled, and preparing a Freight Emissions Reduction Action Plan that will study options for zero-emissions rail and truck technologies.
Reyes v. EPA, No. 1:10-cv-02030-EGS (D.D.C. June 13, 2014): added to the “Climate Change Protestors and Scientists” slide. The federal district court for the District of Columbia granted EPA’s renewed motion for summary judgment in this Freedom of Information Action (FOIA) action seeking disclosure of documents related to EPA’s endangerment finding for greenhouse gases. EPA renewed its motion after completing the tasks required by the court in its September 2013 decision partially granting and partially denying summary judgment. The court found that EPA’s “detailed, non-conclusory” affidavits established that EPA’s search satisfied the reasonableness standard. Plaintiff’s arguments that the search was not adequate because of lack of detail, unexplained methodology, and failure to search all relevant locations and the files of all relevant individuals were not persuasive. The court also found that EPA’s justification for withholding documents on the basis of attorney-client privilege was adequate.
Chernaik v. Kitzhaber, No. A151856 (Or. Ct. App. June 11, 2014): added to the “Common Law Claims” slide. The Oregon Court of Appeals reversed a trial court’s dismissal of plaintiffs’ public trust doctrine lawsuit. The trial court had concluded that it lacked subject matter jurisdiction over the action, in which plaintiffs sought declaratory and equitable relief for the State of Oregon’s failures to meet its fiduciary obligations to protect natural resources such as the atmosphere from the impacts of climate change. The trial court grounded its conclusion in separation of powers and political question concerns. The appellate court ruled that the trial court had authority under the Uniform Declaratory Judgments Act to issue a declaration of whether the atmosphere and other natural resources are “trust resources” that the State of Oregon has a fiduciary obligation to protect from climate change impacts. The court rejected defendants’ contention that such declarations would not amount to the sort of “meaningful relief” required to make plaintiffs’ claims justiciable. The appellate court declined to address the merits of plaintiffs’ claims, indicating that such a determination would only be possible after the parties had litigated the merits and a court had declared “the scope of the public trust doctrine and defendants’ obligations, if any, under it.”
Citizens Against Airport Pollution v. City of San Jose, No. H038781 (Cal. Super. Ct. June 6, 2014; request for publication granted July 2, 2014): added to the “State NEPAs” slide. Petitioner challenged an addendum to the 1997 environmental impact report (EIR) for the City of San Jose’s International Airport Master Plan. The addendum assessed the impacts of amendments to the Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets. The California Court of Appeal affirmed the trial court’s rejection of the challenge. The appellate court was not persuaded that the changes to the Plan constituted a new project requiring a new EIR under CEQA. The court found that substantial evidence in the record showed that the changes to the Plan would not result in new significant impacts to noise levels, air quality, or burrowing owl habitat. The appellate court held that the City did not violate the 2010 CEQA guidelines for greenhouse gas emissions by failing to analyze greenhouse gas emissions in the addendum. The court concluded that the potential impact of greenhouse gas emissions did not constitute new information because information about greenhouse gas impacts was known or could have been known when the 1997 EIR and a 2003 supplemental EIR were prepared.
Alec L. v. McCarthy, No. 13-5192 (D.C. Cir. June 5, 2014): added to the “Common Law Claims” slide. In an unpublished opinion, the D.C. Circuit Court of Appeals affirmed the district court’s 2012 and 2013 orders that dismissed plaintiffs’ lawsuit for lack of subject matter jurisdiction because it failed to raise a federal question. Plaintiffs argued that the federal defendants violated their obligation to protect the atmosphere under the public trust doctrine. The D.C. Circuit, like the district court, ruled that the public trust doctrine is a matter of state law.
Petrozzi v. City of Ocean City, No. 073596 (N.J. June 5, 2014): added to the “Adaptation” slide. The New Jersey Supreme Court denied without comment the City of Ocean City’s request that it review the appellate court decision that obligated the City to make restitutionary payments to property owners whose ocean views were affected after the height of a dune system created by the City increased beyond height limitations established in easements granted to the City.
Native Village of Point Hope v. Jewell, No. 1:08-cv-00004-RRB (D. Alaska Apr. 24, 2014; BOEM status report, May 23, 2014; BOEM notice of intent to prepare SEIS, June 20, 2014): added to the “Stop Government Action/NEPA” slide. In January 2014, the Ninth Circuit Court of Appeals ruled that the Bureau of Ocean Energy Management (BOEM) had based its environmental review of an oil and gas lease sale in the Chukchi Sea on inadequate information due to BOEM’s reliance on an estimate of economically recoverable oil that many parties had said might significantly underestimate production. In April 2014, the federal district court for the District of Alaska remanded the matter to BOEM for further analysis in keeping with the Ninth Circuit’s opinion. The court ordered BOEM to provide bimonthly updates, and barred BOEM from removing suspensions on drilling in the lease area and from approving or “deeming submitted” any exploration plans submitted by lessee. In May 2014, BOEM submitted its first status report, indicating that it had begun drafting a supplemental environmental impact statement (SEIS) and collecting and analyzing information to create a expanded exploration and development scenario to study on remand. BOEM estimated that it would issue its record of decision in March 2015. In June 2014, BOEM published a notice of intent to prepare an SEISin the Federal Register.
NEW CASES, MOTIONS, AND NOTICES
Sierra Club v. Moser, No. 14-112008 (Kan. Ct. App., filed June 27, 2014): added to “Challenges to Coal-Fired Plants” slide. Sierra Club filed a challenge in the Kansas Court of Appeals to an air permit issued to Sunflower Electric Power Corporation authorizing construction of a coal-fired power plant in Holcomb, Kansas. The Kansas Department of Health and Environment reissued the permit in May after the Kansas Supreme Court ruled in October 2013 that a permit issued in 2010 did not properly apply EPA standards. In its petition challenging the new permit, Sierra Club alleged substantive and procedural violations of the Clean Air Act, the Kansas Air Quality Act, and implementing regulations. The claimed violations included failure to incorporate greenhouse gas emissions standards in the permit.
Transportation Solutions Defense and Education Fund v. California Air Resources Board, No. 14CECG01788 (Cal. Super. Ct., filed June 23, 2014): added to the “State NEPAs” slide. Petitioner challenged the California Air Resources Board’s (CARB’s) approval of the First Update to the Climate Change Scoping Plan (Update) and CARB’s certification of a program-level environmental assessment for the Update. Petitioner claimed that CARB violated both the California Environmental Quality Act (CEQA) and the Global Warming Solutions Act of 2006 (AB 32). In particular, petitioner alleged that CARB had failed to take into account the greenhouse gas emissions associated with the high-speed rail project included in the Update, that CARB violated CEQA procedures, and that inclusion of the high-speed rail project violated AB 32.
Communities for a Better Environment et al., Appeal of Long Beach Board of Harbor Commissioners’ Ordinance Approving a New Operating Agreement with Metropolitan Stevedore Company and New Lease with Oxbow Energy Solutions, LLC (June 23, 2014): added to the “State NEPAs” slide. Communities for a Better Environment, Natural Resources Defense Council, and Sierra Club (represented by Earthjustice) filed an appeal with the City of Long Beach challenging the Port of Long Beach Board of Harbor Commissioners decision not to undertake a CEQA review in its consideration of a new operating agreement and lease, which the environmental groups contended would expand the export of coal from the port. Among the arguments advanced by the environmental groups was that a 1992 negative declaration was not sufficient to cover the approvals, in part because greenhouse gas emissions were not evaluated at that time. The groups also argued that the impacts of the export of coal on climate change must be considered, including emissions from transporting coal and burning it overseas.
Monroe Energy, LLC v. EPA, No. 13-1265 (D.C. Cir. June 20, 2014): added to the “Challenges to Federal Action” slide. Respondent-intervenor National Biodiesel Board (NBB) filed a petition for rehearing of a portion of the D.C. Circuit’s decision upholding the 2013 Renewable Fuel Standards (RFS). NBB sought reconsideration of the holding that Monroe Energy, LLC had Article III standing to challenge the RFS. NBB argued that Monroe Energy’s claimed energy was higher compliance costs resulting from third-party actions, and that Monroe Energy had produced no evidence that a decision in its favor would have redressed such an injury. NBB urged a rehearing to prevent the use of annual challenges to the RFS to raise questions about “fundamental precepts” of the program.
In re Murray Energy Corp., No. 14-1112 (D.C. Cir., filed June 18, 2014; states’ amici curiae brief June 25, 2014): added to the “Challenges to Federal Action” slide. Murray Energy Corporation (Murray), the largest privately owned coal company in the United States, filed a petition for extraordinary writ in the D.C. Circuit Court of Appeals, seeking to enjoin EPA from conducting its rulemaking to create greenhouse gas emission standards for existing power plants. Murray argued that the D.C. Circuit could bar EPA from continuing the rulemaking process because EPA had proposed to take actions beyond its power. Murray contended that because EPA imposed national standards on power plants under a rule issued under Section 112 of the Clean Air Act, which addresses hazardous air pollutants, it could not mandate state-by-state greenhouse gas emission standards under Section 111(d). Nine states filed a brief in support of the petition.
Center for Biological Diversity v. Jewell, No. 14-1021 (D.D.C., filed June 17, 2014): added to the “Endangered Species Act” slide. The Center for Biological Diversity filed a lawsuit in the federal district court for the District of Columbia seeking to require the U.S. Fish and Wildlife Service to making required findings regarding the listing of nine species under the Endangered Species Act. The nine species include the San Bernardino flying squirrel, which the Center for Biological Diversity alleged was threatened by climate change’s adverse impacts to its mixed-conifer, black-oak forest habitat.
Kunaknana v. United States Army Corps of Engineers, No. 3:13-cv-00044-SLG (D. Alaska, materials in support of motions regarding further proceedings (ConocoPhillips motion and memorandum, Corps motion, plaintiffs’ submission) June 17, 2014): added to the “Stop Government Action/NEPA” slide. The parties to the lawsuit challenging the granting of a wetlands permit to ConocoPhillips Alaska, Inc. by the United States Army Corps of Engineers could not agree on a course for further proceedings after the federal district court for the District of Alaska ruled that the Corps had not provided an adequate explanation for its decision not to prepare an SEIS. ConocoPhillips requested a remand without vacatur, asking that the remand period be limited to 90 days and that the scope of the remand only include remedying the errors identified by the court in the Corps’ rationale and addressing post-2004 climate change information. The Corps also requested a 90-day limited remand. Plaintiffs, on the other hand, argued that vacatur of the permit was warranted.
Center for Biological Diversity v. Jewell, No. 1:14-cv-00991-EGS (D.D.C., filed June 10, 2014): added to the “Endangered Species Act” slide. Three environmental organizations filed a complaint in the federal district court for the District of Columbia seeking to compel the U.S. Fish and Wildlife Service to issue findings in response to their 2011 petition to list the Alexander Archipelago wolf as an endangered or threatened species under the Endangered Species Act. The Alexander Archipelago wolf is a subspecies of gray wolf that inhabits the islands and coastal mainland of Southeast Alaska. Plaintiffs alleged that the species faces a number of threats, including threats from climate change. The climate change threats include more severe winter storm events and above-normal snowfalls that adversely affect the wolf’s primary prey species.
Competitive Enterprise Institute v. United States National Security Agency, No. 14-cv-975 (D.D.C., filed June 9, 2014): added to the “Climate Change Protestors and Scientists” slide. The Competitive Enterprise Institute (CEI) and two other organizations commenced a FOIA lawsuit against the National Security Agency (NSA) in the federal district court for the District of Columbia. CEI and other entities had requested “metadata” for text messaging, e-mail, and phone accounts used by EPA administrators. Plaintiffs alleged that the EPA officials had used personal email and phones to circumvent FOIA and the Federal Records Act, and that the metadata are therefore records under FOIA. The NSA refused to confirm or deny the existence of the records sought by CEI. CEI contended that there had been “clear public admissions” that the NSA had collected the type of metadata it sought, and that the agency was therefore precluded from responding in this fashion (known as a “Glomar” response) to FOIA requests. Plaintiffs seek declaratory and injunctive relief, as well as attorney fees and other costs.
Communities for a Better Environment v. Bay Area Air Quality Management District, No. CPF-14-513704 (Cal. Super. Ct., filed June 5, 2014): added to the “State NEPAs” slide. Petitioner commenced a lawsuit in California Superior Court challenging the issuance of a permit to Chevron USA Inc. for a modernization project at its refinery in Richmond, California. Petitioner alleged that the agency had not complied with CEQA requirements prior to issuing the permit. In particular, petitioners claimed that the Bay Area Air Quality Management District had failed to review the “additional and massive GHG emissions” expected from the project (almost 1 million metric tonnes annually).
County of Kings v. California High-Speed Rail Authority, No. 2014-80001861 (Cal. Super. Ct., filed June 5, 2014): added to the “State NEPAs” slide. Petitioners challenged the California High-Speed Rail Authority’s approval of the 114-mile Fresno-to-Bakersfield section of California’s high-speed train project. The lawsuit, filed in California Superior Court, alleged violations of CEQA; California’s anti-discrimination law; the Williamson Act, which protects agricultural lands; and Proposition 1A, which authorized funding for the high-speed rail project. Petitioners contest the adequacy of the CEQA review in a number of impact areas. Their climate change-related claims included that the environmental impact report (EIR) should have been recirculated because the final EIR substantially reduced the anticipated greenhouse gas reduction benefits (a response to comments suggesting that the agency had failed to take improved fuel economy into account). Petitioners also alleged that emissions associated with the production of materials—concrete, in particular—used for construction of the section would offset twenty to thirty years of the section’s purported greenhouse gas reduction benefits. Other lawsuits have been filed challenging the project: Coffee-Brimhall LLC v. California High-Speed Rail Authority, No. 2014-80001859 (Cal. Super. Ct., filed June 5, 2014), and City of Bakersfield v. California High-Speed Rail Authority, No. 2014-80001866 (Cal. Super. Ct., filed June 5, 2014); County of Kern vs. California High Speed Rail Authority, No. 2014-80001863. (Cal. Super. Ct., filed June 6, 2014); First Free Baptist Church of Bakersfield vs. California High Speed Rail Authority, No. 2014-80001864 (Cal. Super. Ct., filed June 6, 2014), and Dignity Health vs. California High-Speed Rail Authority, No. 2014-80001865 (Cal. Super. Ct., filed June 6, 2014).
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Opinion of Advocate General Sharpston (European Court of Justice  Case C-426/12): Advocate General Sharpston was asked for guidance as to the meaning of the term ‘dual use’ in the second indent of Article 2(4)(b) in relation to sugar production and lime fertilizer, the by-product arising from that process, of the Directive 2003/96/EC, which introduced a regime imposing minimum harmonized levels of taxation on all energy products and electricity. The referring court also asked whether national legislators are constrained by an EU concept of what constitutes dual use if they choose to introduce domestic measures in order to tax such energy products. The Advocate General answered that ‘dual use’ within the meaning of Article 2(4)(b) refers to where coal is used as heating fuel in a lime-kiln in order to generate carbon dioxide for the production of lime-kiln gas, which is subsequently used for the purification of the raw juice obtained from sugar beets, that process giving rise to the by-product earth foam. The Advocate General found that Member States may apply a more restrictive definition of dual use and choose to tax dual use energy products, provided they exercise their competence consistently with EU law. If a Member State chooses to apply such a narrower definition, a taxpayer cannot invoke a broader EU concept of dual use in order to obtain exoneration from a charge to tax imposed under national law. — Added to “Suits against Governments: GHG Emissions Reductions and Trading: Other” Slide
Regina v. Dosanjh (United Kingdom, Court of Appeal  EWCA Crim 2366): The defendants were involved in manipulation of the EU Emissions Trade Scheme, running companies that formed two artificial ‘trading chains’ through which the fraud was operated. They were convicted of the common law offense of conspiring to cheat the public revenue and sentenced to terms of imprisonment of 15 years, 11 years and 9 years, respectively. The defendants appealed the sentences, arguing that (1) it was wrong in principle to pass a sentence which was longer than the maximum penalty available for the equivalent statutory offences or for the cognate common law offence of conspiracy to defraud; and (2) the sentence of 15 years was, on the facts of the case, manifestly excessive. The court stated that Parliament had deliberately not decided the offense of cheating the revenue. Parliament had left the offense of conspiracy to cheat the public revenue from statutory charge, both in existence and the penalty at large, because it is of particular seriousness. In assessing whether or not the sentences were manifestly excessive, the court looked at previous decisions of the court and the draft guideline from the Sentencing Council, and noted that: cheating the revenue is a major drain on the public purse, and the defendants’ actions were a serious level of offending, with an enormous amount of planning. However, the court determined that those sentences were too high and reduced the sentences to 13 years, 10 years and 8 years. — Added to “Suits against Individuals: Other Suits” Slide