Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. The additions to the charts from August to December 2014 are included below, organized by their case chart category.
- Challenges to Federal Action
- Challenges to State Action
- Challenges to Local Action
- Stop Government Action—NEPA
- Stop Government Action—State NEPAs
- Stop Government Action—Other Statutes
- Stop Government Action—Challenges to Coal-Fired Power Plants
- Stop Government Action—Other Project Challenges
- Force Government to Act—Clean Air Act
- Force Government to Act—Other Statutes
- Common Law Claims
- Regulate Private Conduct
- Climate Change Protestors and Scientists
- Adaptation
- Petitions Under Endangered Species Act and Related Litigation
Non-U.S. climate Litigation Chart
Updates to U.S. Climate Litigation Chart
West Virginia Federal Court Denied EPA Motion for Clarification in Clean Air Act Employment Impacts Case. The federal district court denied EPA’s motion to clarify its September decision denying EPA’s motion to dismiss a lawsuit brought under Section 321(a) of the Clean Air Act. Section 321(a) provides that EPA “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement” of the Clean Air Act. In the September decision, the court found that the absence of a “date-certain deadline” for conducting the Section 321(a) evaluations did not make EPA’s obligation to conduct them discretionary. The court therefore concluded that it had jurisdiction to hear the case. In the motion to clarify, EPA said that it was “unable to discern … whether the Court was asserting jurisdiction for the failure to perform of a nondiscretionary duty under Section 304(a)(2) or for unreasonable delay under Section 304(a)” of the Clean Air Act. EPA said these were two separate and distinct causes of action subject to different standards of evaluation. The court said it believed that its September order “clearly set forth the bases for the ruling and that no further explanation is necessary.” Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va. Oct. 24, 2014).
EPA Asked D.C. Circuit to Dismiss Challenge to Proposal for Regulating Existing Power Plants’ Greenhouse Gas Emissions. EPA filed a motion to dismiss Murray Energy Corporation’s petition seeking review of EPA’s proposed rule for regulating greenhouse gases from existing power plants. EPA said there was no subject matter jurisdiction because a proposed rule is not a reviewable action under the Clean Air Act. EPA argued that Murray Energy’s claim that EPA “altogether lacks authority” to regulate greenhouse gas emissions from existing power plants could not render the proposed rule a “final action” subject to judicial review. Murray Energy Corp. v. EPA, No. 14-1151 (D.C. Cir., motion to dismiss Oct. 23, 2014).
D.C. Circuit Said Challengers of Gasoline Labeling Requirements Lacked Standing. In an unpublished opinion, the D.C. Circuit Court of Appeals denied a petition for review of an EPA rule requiring gas stations to label pumps that dispense gasoline that contains more than 10% ethanol. Citing its 2012 decision in Grocery Manufacturers Association v. EPA, the court said the petitioners—the American Petroleum Institute (API) and the Engine Products Group (EPG)—once again lacked standing. The court said that API had not provided evidence that any of its members sold or planned to sell gasoline containing 15% ethanol (E15) and that API therefore failed to show risk of injury adequate for standing. The court said EPG—which argued that E15 would damage products sold by its members for which E10 (gasoline containing 10% ethanol) was suitable—had failed to provide evidence connecting sales of E15 under the challenged regulation to injuries that EPG members were likely to suffer. The court also said that EPG had alleged only a conjectural or hypothetical injury when it argued that EPA’s denial of its rulemaking petition asking EPA to mandate the continued sale of E10 would force consumers to use the product-damaging E15 “for want of adequate E10 supplies.” Alliance of Automobile Manufacturers v. EPA, Nos. 11-1334, 11-1344 (D.C. Cir. Oct. 21, 2014).
Parties Submitted Motions to Govern Further Proceedings After Supreme Court Greenhouse Gas Permitting Decision. On October 21, 2014, parties weighed in on how the D.C. Circuit should proceed after the Supreme Court’s decision on greenhouse gas regulation in Utility Air Regulatory Group v. EPA. Industry groups, along with states and public interest groups aligned with industry, argued that greenhouse gas emissions were not and could not be subject to Prevention of Significant Deterioration (PSD) or Title V requirements without further EPA rulemaking. EPA asked that its PSD and Title V regulations be vacated only to the extent that they required permits where greenhouse gases were the only pollutant that exceeded applicable major source thresholds or required EPA to consider phasing sources into the permitting programs that met lower greenhouse gas emission thresholds. EPA (and also environmental organization respondent-intervenors) said that best available control technology requirements for greenhouse gases should continue to apply—without need for further rulemaking—to sources whose emissions of other pollutants met the applicable thresholds. Coalition for Responsible Regulation v. EPA, Nos. 09-1322 et al. (D.C. Cir., industry/states/public interest groups’ motion, EPA motion, environmental respondent-intervenors’ motion Oct. 21, 2014).
Federal Court Dismissed Nebraska’s Challenge to Proposed Greenhouse Gas Standards for New Power Plants. The federal district court for the District of Nebraska dismissed the State of Nebraska’s lawsuit against the U.S. Environmental Protection Agency (EPA) in which Nebraska sought to force EPA to withdraw its proposed rule for reducing greenhouse gas emissions from new power plants. The court agreed with EPA that Nebraska’s “attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law.” The district court said that there had been no final agency action and that the Clean Air Act provided an adequate remedy—review of any final rule by the D.C. Circuit Court of Appeals. Nebraska v. EPA, No. 4:14-CV-3006 (D. Neb. Oct. 6, 2014).
Truck Drivers Challenged EPA Waiver for California Greenhouse Gas Regulation of Heavy-Duty Trucks. The Owner-Operator Independent Drivers Association, Inc. petitioned the D.C. Circuit Court of Appeals to review EPA’s granting of a request by the California Air Resources Board for a waiver of Clean Air Act preemption of certain provisions of California’s greenhouse gas regulations for heavy-duty tractor-trailer trucks. The waiver encompasses sleeper-cab tractors for model years 2011 through 2013 and dry-van and refrigerated-van trailers encompassed by such tractors starting with the 2011 model year. Owner-Operator Independent Drivers Association, Inc. v. EPA, No. 14-1192 (D.C. Cir., filed Oct. 3, 2014).
States and Industry Sought Rehearing on EPA’s Federal Greenhouse Gas Permitting Authority. Two states, along with trade associations and other organizations representing various industrial sectors, filed petitions for rehearing in the D.C. Circuit in their proceedings challenging the U.S. Environmental Protection Agency’s (EPA’s) imposition of federal greenhouse gas permitting requirements. The petitions argued that rehearing was necessary because the Supreme Court’s decision in Utility Air Regulatory Group v. EPA negated the D.C. Circuit’s dismissal of the proceedings on standing grounds. The D.C. Circuit’s ruling was grounded in its interpretation of the Clean Air Act’s Prevention of Significant Deterioration (PSD) permitting requirements were “self-executing” for stationary sources that emitted greenhouse gases—the D.C. Circuit therefore reasoned that petitioners’ injuries were caused by the statute itself and not by EPA’s actions. Petitioners argued in their petitions for rehearing that since the Supreme Court expressly rejected this interpretation, the D.C. Circuit’s ruling should be vacated and the petitions for review should be granted or the matter reheard. Texas v. EPA, No. 10-1425, Utility Air Regulatory Group v. EPA, No. 11-1037 (D.C. Cir., SIP/FIP Advocacy Group petition for panel rehearing or rehearing en banc Sept. 22, 2014; State of Wyoming et al. petition for panel rehearing Sept. 22, 2014).
D.C. Circuit Ordered EPA to Respond to Petition Challenging Greenhouse Gas Rulemaking for Existing Power Plants. On September 18, 2014, the D.C. Circuit ordered the U.S. Environmental Protection Agency (EPA) to respond to the petition for extraordinary writ filed in June by Murray Energy Corporation challenging EPA’s authority to conduct rulemaking to regulate greenhouse gas emissions from existing power plants. EPA’s response is due on October 20, but EPA asked for an additional two weeks to allow for Department of Justice and EPA management review of its brief. In its unopposed motion seeking the additional time, EPA noted that the Federal Rules of Appellate Procedure permit the court to deny a petition for a writ of prohibition without requiring an answer and that respondents are not permitted to submit a responsive pleading unless requested to do so by the court. In re Murray Energy Corp., No. 14-1112 (D.C. Cir. Sept. 18, 2014).
Federal Court in West Virginia Allowed Coal Company’s Lawsuit Against EPA to Proceed. The federal district court for the Northern District of West Virginia denied EPA’s motion to dismiss a lawsuit seeking to compel the agency to fulfill its obligation under Section 321(a) of the Clean Air Act to evaluate the impacts of administration and enforcement of the Clean Air Act on employment. The court found that the absence of a “date-certain deadline” for conducting the evaluations required by Section 321(a) did not make EPA’s obligation to conduct them discretionary. The court therefore concluded that it had jurisdiction to hear the case. The court also rejected EPA’s request that it strike plaintiffs’ prayer for injunctive relief. The court noted that while there might be questions as to the scope of injunctive relief the court could grant, arguments regarding this issue were premature. Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va. Sept. 16, 2014).
Challengers of EPA’s Designation of Carbon Dioxide as Solid Waste Laid Out Legal Arguments. The Carbon Sequestration Council, Southern Company Services, Inc., and the American Petroleum Institute filed their opening brief in their challenge to EPA’s rule that categorized carbon dioxide in the form of gas or supercritical fluid as a “solid waste” under the Resource Conservation and Recovery Act (RCRA). They argue that Congress did not intend for EPA to assert authority over supercritical fluids or, in the alternative, that EPA’s assertion that supercritical fluids and uncontained gases were subject to RCRA was not reasonable or deserving of deference. The petitioners do not challenge the conditional exclusion of carbon dioxide as a hazardous waste under RCRA. Carbon Sequestration Council v. EPA, No. 14-1046 (D.C. Cir. Aug. 28, 2014).
Challenge to 2013 Cellulosic Biofuel Standard Was Voluntarily Dismissed After EPA Issued Response to Request for Reconsideration. The D.C. Circuit Court of Appeals granted a joint motion for voluntary dismissal of a challenge to the 2013 cellulosic biofuel standard. (The challenge to the cellulosic standard previously had been severed from the challenge to the rest of the 2013 renewable fuel standard (RFS); the D.C. Circuit upheld the rest of the 2013 RFS in May 2014.) EPA finalized its response to a request for administrative reconsideration of the cellulosic biofuel standard in May 2014 when it issued a direct final rule in which it based the 2013 standard on actual 2013 production and provided for a refund of excess waiver credits obtained by obligated parties. Monroe Energy, LLC v. EPA, No. 14-1033 (D.C. Cir. Aug. 19, 2014).
Murray Energy Corp. Filed Second Challenge to EPA’s Clean Power Plan. After EPA published its proposal to regulate greenhouse gas emissions from existing power plants in the Federal Register on June 18, 2014, Murray Energy Corp. filed a second petition in the D.C. Circuit challenging the agency’s Clean Power Plan. (Murray Energy also filed a petition for extraordinary writ in June.) In the second petition, Murray Energy contended that EPA’s proposal was an illegal final action because it violated an express statutory prohibition on regulating sources under both Section 112 and Section 111(d) of the Clean Air Act. Attempting to differentiate its petition from a challenge to proposed greenhouse gas new source performance standards for power plants that the D.C. Circuit rejected in 2012, Murray Energy noted that it was not challenging the substance of the Clean Power Plan rule, but whether EPA had any authority to initiate a rulemaking at all. Murray Energy Corp. v. EPA, No. 14-1151 (D.C. Cir., filed Aug. 15, 2014).
States Filed Challenge to Settlement Agreement That Required EPA to Regulate Greenhouse Gases from Existing Power Plants; Other States Intervened on EPA’s Side. Twelve states filed a petition for review in the D.C. Circuit asking the court to review a settlement agreement between EPA and other states, governmental entities, and nonprofit organizations in which EPA agreed to propose and finalize a rule regulating greenhouse gas emissions from existing coal-fired power plants. EPA approved the settlement in 2011. The twelve states contended that the agreement was illegal to the extent that it compelled EPA to propose and finalize regulations under Section 111(d) of the Clean Air Act to regulate greenhouse gas emissions from existing power plants after EPA finalized regulation of hazardous air pollutants from power plants under Section 112 in 2012. EPA published its proposal to regulate greenhouse gases from existing power plants in the June 18, 2014 edition of the Federal Register. It is the states’ position that regulation of sources under Section 112 bars regulation under Section 111(d). On September 2, 2014, 11 other states, Washington, D.C., and New York City filed a motion to intervene in support of EPA, saying that they had an interest in the rulemaking moving forward to address climate change-related harms. West Virginia v. EPA, No. 14-1146 (D.C. Cir., filed Aug. 4, 2014).
Coal Mining Organization and Kentucky Landowners Challenged TVA Decision to Retire Coal-Fired Units and Build Natural Gas Plant. A group of plaintiffs that included Kentucky landowners and a nonprofit organization representing eastern and western Kentucky coal mining operations commenced a lawsuit in the federal district court for the Western District of Kentucky alleging that the Tennessee Valley Authority (TVA) did not comply with the National Environmental Policy Act when it decided to retire coal-fired electric generating units and replace them with a new combustion turbine/combined cycle natural gas plant at a facility in Muhlenberg County in Kentucky. Plaintiffs alleged that TVA was required to prepare an environmental impact statement for its action, rather than relying on an environmental assessment. They contended that “viewed holistically” the switch to natural gas would have more significant adverse environmental impacts than upgrading emission controls on the existing coal units, including impacts associated with building new facilities and natural gas pipelines. Plaintiffs alleged that TVA had inappropriately elevated consideration of carbon dioxide emissions and related air quality issues above other environmental impacts “in an attempt to ‘comply’ with President Obama’s Climate Action Plan, which lacks force of law.” Plaintiffs further alleged that TVA’s evaluation of greenhouse gas emissions was deficient because it did not consider emissions from the entire life cycle of natural gas production. The suit also alleged that TVA failed to adhere to its obligation under the Tennessee Valley Authority Act of 1933 to conduct least-cost planning. Kentucky Coal Association, Inc. v. Tennessee Valley Authority, No. 4:14-CV-73-M (W.D. Ky., filed July 10, 2014).
Court Declined to Dismiss Lawsuit Challenging Delaware’s Implementation of New RGGI Emissions Cap. The Delaware Superior Court denied a motion by the Delaware Department of Natural Resources and Environmental Control (DNREC) to dismiss an action challenging DNREC’s implementation of the reduced carbon dioxide emissions cap instituted under the Regional Greenhouse Gas Initiative (RGGI) in 2013. Plaintiffs asserted that DNREC’s regulations were inconsistent with Delaware’s RGGI Act and violated the Delaware constitution’s requirement that increases in environmental permit fees be approved by a three-fifths majority of the legislature. The court ruled that plaintiffs—Delaware residents and customers of Delaware utilities—had standing and rejected the contention that the challenge should have been made before the Public Service Commission. The court also found that plaintiffs’ allegations were sufficient for their claims to survive a motion to dismiss. Stevenson v. Delaware Department of Natural Resources and Environmental Control, No. S13C-12-025 (Del Super. Ct. Sept. 22, 2014).
Massachusetts Land Court Removed Barriers to Construction of Biomass Plant. The Massachusetts Land Court ruled that the developer for a proposed biomass energy plant in Springfield was not required to obtain a special permit from the City. The court reinstated building permits for the project. The court noted that the developer had performed an analysis of the project’s potential greenhouse gas emissions and concluded that the burning of its fuel source, green wood chips, was carbon neutral because there was no difference in emissions between green wood chips that decayed naturally and chips that were burned. Palmer Renewable Energy, LLC v. Zoning Board of Appeals of City of Springfield, Nos. 12 PS 461494 AHS, 12 PS 468569 AHS (Mass. Land Ct. Aug. 14, 2014).
Organizations Filed NEPA Challenge to Federal Coal Management Program in D.C. District Court. Two organizations brought a lawsuit against the Secretary of the Interior and the U.S. Bureau of Land Management (BLM) challenging the failure to update the environmental review of the federal coal management program to consider the climate change impact of greenhouse gas emissions resulting from the program. The organizations—Western Organization of Resource Councils and Friends of the Earth—alleged that BLM had not comprehensively analyzed the environmental impacts of the program since 1979, and that the 1979 analysis “only briefly discussed the then-nascent science of the effects of greenhouse gas emissions and the federal coal management program’s emissions.” The organizations asked the federal district court for the District of Columbia to declare defendants in violation of the National Environmental Policy Act (NEPA); to order an analysis of the impacts of coal leasing under the federal coal management program on climate change and analyze alternative policies to reduce such impacts, and to enjoin defendants from considering applications for or issuing new coal leases or modifications of existing leases until defendants comply with NEPA. Western Organization of Resource Councils v. Jewell, No. 14-cv-1993 (D.D.C., filed Nov. 25, 2014).
FERC Sought to Dismiss Challenges to Louisiana LNG Projects as 25 Seconds Too Late. The Federal Energy Regulatory Commission (FERC) moved for summary affirmance and dismissal of challenges by Sierra Club and the Gulf Restoration Network (together, Sierra Club) to approvals of liquefaction facilities and pipeline and compression facilities at an existing liquefied natural gas (LNG) import terminal in Louisiana. FERC argued that its determination to reject Sierra Club’s rehearing petition as untimely should be summarily affirmed, and that since timely rehearing was not sought, the D.C. Circuit was without jurisdiction to hear the challenge to FERC’s approvals of the projects at the LNG facility. Sierra Club filed the rehearing petition 25 seconds after close of business on the last day of the 30-day period during which it could seek rehearing after FERC issued its orders approving the projects. Sierra Club v. Federal Energy Regulatory Commission, No. 14-1190 (D.C. Cir, motion for summary affirmance and dismissal Nov. 14, 2014).
Indian Tribe and Environmental Groups Commenced NEPA Challenge to Tar Sands Crude Oil Pipeline Project. An Indian tribe and seven environmental, conservation, and community organizations brought a lawsuit under the National Environmental Policy Act (NEPA) challenging the U.S. Department of State’s approval of a new pipeline for importing heavy tar sands crude oil from Alberta, Canada, to a terminal facility in Wisconsin. The lawsuit, filed in the federal district court for the District of Minnesota, also challenged the State Department’s authorization of the diversion of 800,000 barrels per day to a pipeline segment purportedly constructed as part of an existing pipeline. Plaintiffs argued that approval of this diversion undermined the NEPA review of a request to increase the volume of oil imported on a pipeline known as the “Alberta Clipper.” Plaintiffs alleged that they brought the lawsuit on their own behalf as well as on behalf of their members who use areas that will be affected by air and water pollution from the pipeline projects and by the impacts of increased greenhouse gas emissions from the refining and end-use of tar sands crude oil. White Earth Nation v. Kerry, No. 0:14-cv-04726 (D. Minn., filed Nov. 11, 2014).
BLM Said Environmental Review Process for California Oil and Gas Leases Would Take Two Years. The U.S. Bureau of Land Management (BLM) and the Center for Biological Diversity and Sierra Club filed a joint status report in the environmental organizations’ lawsuit challenging BLM’s leasing of federal lands in California for oil and gas development. In March 2013, the federal district court for the Northern District of California said that BLM had unreasonably refused to consider drilling projections that included hydraulic fracturing. In its October 2014 status report, BLM indicated that it had completed the public scoping process for its environmental impact review, published a Scoping Summary Report, funded a review of scientific and technical information on well stimulation technologies by the California Council on Science and Technology, and awarded a contract for preparation of the Resource Management Plan Amendment and environmental impact statement. BLM said that it anticipated that it will take two years to complete the review process and tentatively scheduled issuance of the record of decision for October 2016. Center for Biological Diversity v. Bureau of Land Management, No. 11-cv-06174 (N.D. Cal., joint status report Oct. 16, 2014).
Rehearing and Stay Sought for Dominion Cove Point LNG Project. On October 15, 2014, environmental groups requested that the Federal Energy Regulatory Commission (FERC) rehear and rescind its September 29 order authorizing construction and operation by Dominion Cove Point LNG, LP, of liquefaction and terminal facilities for the export of liquefied natural gas (LNG) in Cove Point, Maryland, and associated pipeline facilities to transport natural gas to the LNG terminal facilities. The environmental groups also asked for a stay of FERC’s order to prevent construction or land disturbance associated with the authorized actions. The groups claimed that FERC’s order failed to comply with the National Environmental Policy Act and the Endangered Species Act. The request for rehearing enumerated a number of alleged shortcomings in the environmental review, including that FERC had “improperly discounted the significance of the project’s direct greenhouse gas emissions” and had “ignored the reasonably foreseeable upstream and downstream greenhouse gas emissions” that the project would cause. In re Dominion Cove Point LNG, LP, No. CP13-113-000 (FERC, request for rehearing and motion for stay Oct. 15, 2014).
Environmental Groups Appealed FERC Approvals of LNG Facilities in Louisiana. Sierra Club and the Gulf Restoration Network filed a petition in the D.C. Circuit Court of Appeals seeking review of Federal Energy Regulatory Commission (FERC) actions authorizing construction and operation of liquefaction facilities and pipeline and compression facilities in Louisiana. The liquefaction facilities are to be constructed at the site of an existing liquefied natural gas (LNG) import terminal, and the actions approved by FERC will facilitate the export of LNG. FERC rejected Sierra Club’s contentions that the facilities would result in increased domestic natural gas production and cause environmental harms, including increased greenhouse gas emissions. The FERC actions for which petitioners seek review are its Order Granting Authorization Under Section 3 of the Natural Gas Action and Issuing Certificates (June 19, 2014); Notice Rejecting Request for Rehearing and Dismissing Request for Stay (July 29, 2014); and Order Denying Rehearing (September 26, 2014). Sierra Club v. Federal Energy Regulatory Commission, No. 14-1190 (D.C. Cir., filed Sept. 29, 2014).
Federal Court Denied Broad Injunctive Relief After Finding NEPA Shortcoming in Review of Los Angeles Subway Project, Cited Project’s Greenhouse Gas Reductions. The federal district court for the Central District of California ruled in May 2014 that the review under the National Environmental Policy Act (NEPA) for a subway project in Los Angeles was adequate except for the analysis of alternative construction methods for one segment of the project. In September 2014, the court partially vacated the record of decision, but declined to issue an injunction that would bar utility relocation, purchase of tunnel boring equipment, and certain tunneling activities. The court found that plaintiffs had not shown that the balance of hardships weighed in favor of enjoining these activities, citing, among other factors, the reduction in greenhouse gas emissions that would result from the finished project. The court also found that plaintiffs had not shown that the public interest would not be disserved by broad injunctive relief, given the project’s social and environmental benefits and the potential jeopardy in which broad injunctive relief could place the project. Today’s IV, Inc. v. Federal Transit Administration, No. 2:13-cv-00378 (C.D. Cal. Sept. 12, 2014).
Colorado Federal Court Vacated Agency Actions That Authorized Expanded Coal Mining, Saying That Review of Greenhouse Gas Impacts Should Start with “Clean Slate.” The federal court for the District of Colorado issued a final order vacating three actions of the United States Forest Service and Bureau of Land Management that permitted expansion of coal mining in a part of Colorado’s North Fork Valley called the Sunset Roadless Area. In a June 2014 opinion, the court asked the parties to confer regarding an appropriate remedy after ruling that the agencies had violated the National Environmental Policy Act (NEPA) by failing to take hard look at potential impacts of increased greenhouse gas emissions associated with their actions. The parties were unable to agree, so the court stepped in. In vacating the federal actions, the court noted that vacatur was the “normal remedy” for NEPA violations and that equitable considerations did not weigh in favor of a more limited remedy such as the tailored temporary injunctions requested by defendants. The court said that the agencies’ decision on remand was not a foregone conclusion and that “NEPA’s goals of deliberative, non-arbitrary decision-making would seem best served by the agencies approaching these actions with a clean slate.” High Country Conservation Advocates v. United States Forest Service, No. 13-cv-01723-RBJ (D. Colo. Sept. 11, 2014).
Federal Court in Nevada Dismissed NEPA Challenge to Oil and Gas Lease Sale as Premature. The federal district court for the District of Nevada rejected a request for a preliminary injunction and also sua sponte dismissed a lawsuit brought by a group of owners of farming and ranching land, water rights, and grazing rights in Nevada who challenged the U.S. Bureau of Land Management’s (BLM’s) issuance of oil and gas leases in Nevada. The group had challenged BLM’s compliance with the National Environmental Policy Act (NEPA), including its failure to consider its actions’ impacts on methane releases and increased emissions of greenhouse gasses from fossil fuel combustion. The court concluded that it had no subject matter jurisdiction because there had been no final agency action since although BLM had conducted the lease sale, it had not yet decided whether to issue the leases. Reese River Basin Citizens Against Fracking, LLC v. Bureau of Land Management, No. 3:14-cv-00338 (D. Nev. Sept. 8, 2014).
Federal Court Found Fish and Wildlife Service’s Assessment of Climate Change Impacts on Threatened Bull Trout Was Adequate. The federal district court for the District of Montana upheld an incidental take permit for grizzly bears and bull trout (both are threatened species under the Endangered Species Act) for logging and road building activities on land in western Montana, except to the extent of finding that the Fish and Wildlife Service (FWS) had failed to justify the conclusion that mitigation measures for the take of grizzly bears were sufficient. The court concluded that the FWS’s review under the National Environmental Policy Act (NEPA) was adequate, including the review of climate change-related cumulative impacts. The FWS included a chapter on climate change in the final environmental impact statement in response to public comment; the chapter discussed “the causes of climate change, its effects on forest management, projections for future temperatures, the environmental impacts of increased temperatures, current approaches to the issue, and a comparison of the effects of climate change across the alternatives.” In particular, the chapter addressed the effects of climate change on bull trout, including loss of bull trout habitat. Plaintiffs criticized the “disconnect” between the assessment of climate change’s adverse impacts and the FWS’s conclusions regarding the environmental consequences of the permit, but the court concluded that the FWS adequately addressed and mitigated climate change’s potential effects. Friends of the Wild Swan v. Jewell, No. 9:13-cv-00061-DWM (D. Mont. Aug. 21, 2014).
Sixth Circuit Upheld NEPA Review of Greenhouse Gas Emissions from Ohio River Bridges Project. The Sixth Circuit Court of Appeals affirmed the rejection of a challenge to a $2.6-billion construction and transportation management program designed to improve mobility across the Ohio River between Kentucky and Southern Indiana. Plaintiff challenged the project under NEPA and Title VI of the Civil Rights Act of 1964. Like the district court, the Sixth Circuit was not persuaded that the reviewing agencies’ consideration of greenhouse gas emissions was inadequate. The Sixth Circuit said that defendants’ position that they could not “usefully evaluate” such emissions on a project-specific basis because of “the non-localized, global nature” of climate impacts was not arbitrary and capricious. Coalition for Advancement of Regional Transportation v. Federal Highway Administration, No. 13-6214 (6th Cir. Aug. 7, 2014).
Federal Court Declined to Vacate Permit to Fill Wetlands in National Petroleum Reserve While Corps of Engineers Rectifies NEPA Violations. The federal district court for the District of Alaska ruled in May that the U.S. Army Corps of Engineers had not provided a reasoned explanation for its decision not to supplement its 2004 environmental review prior to issuing a permit to fill wetlands for development of a drilling site in Alaska’s National Petroleum Reserve. In July, the court issued an order regarding further proceedings in the case. The court opted not to vacate the permit because stopping ongoing construction would have disruptive consequences. On remand, the court directed the Corps to consider post-2004 information on how climate change could affect the project. The court denied the challengers’ request for a public hearing, noting that the National Environmental Policy Act did not require a public hearing for a determination of whether to prepare a supplemental environmental impact statement. The Corps must submit its determination on remand by August 27. Kunaknana v. United States Army Corps of Engineers, No. 3:13-cv-00044-SLG (D. Alaska July 22, 2014).
Challenge to Oil and Gas Lease Sale in Nevada Raised Issue of Greenhouse Gas Emissions. A group of owners of farming and ranching land, water rights, and grazing rights in Nevada filed an action in the federal district court for the District of Nevada challenging the U.S. Bureau of Land Management’s (BLM’s) decision to lease 230,989 acres of public lands for oil and gas development. The group alleged that BLM had not fulfilled its obligations under the National Environmental Policy Act. Among the allegations of shortcomings in the environmental review was BLM’s alleged failure to consider greenhouse gas emissions associated with the lease sale and the sale’s impact on climate change. In particular, plaintiff said BLM should have considered the impact of methane releases from exploration and production activities and greenhouse gas emissions from the addition of more fossil fuels. Reese River Citizens Against Fracking v. Bureau of Land Management, No. 3:14-cv-00338-MMD-WGC (D. Nev., filed June 27, 2014).
Stop Government Action—State NEPAs
Appellate Court Said CEQA Required Consideration of Regional Transportation Plan’s “Consistency” with Executive Order Emissions Targets. The California Court of Appeal agreed with a trial court that the approval of a transportation plan for the San Diego region violated the California Environmental Quality Act (CEQA). The appellate court rejected the contention of the San Diego Association of Governments (SANDAG) that CEQA did not require it to analyze the transportation plan’s consistency with greenhouse gas emissions reduction targets through 2050 that were set forth in Executive Order S-3-05, which was signed by Governor Arnold Schwarzenegger in 2005 and which the appellate court said “underpins all of the state’s current efforts to reduce greenhouse gas emissions.” The court said the decision not to conduct such an analysis “did not reflect a reasonable, good faith effort at full disclosure and is not supported by substantial evidence because [it] ignored the Executive Order’s role in shaping state climate policy.” The court said that omission of the analysis gave the false impression that the regional transportation plan furthered climate policy goals when “the trajectory of the transportation plan’s post-2020 emissions directly contravenes it.” The appellate court also said that because the environmental impact report (EIR) had not considered feasible mitigation alternatives that would substantially lessen the plan’s greenhouse gas emissions, substantial evidence did not support SANDAG’s determination that it had adequately considered mitigation for greenhouse gas impacts. In addition, the court found the EIR’s assessment of alternatives, air quality impacts, and agricultural impacts to be insufficient. One justice issued a dissenting opinion in which she said the majority’s opinion elevated the Executive Order to a “threshold of significance” and in doing so stepped overstepped the court’s authority. Cleveland National Forest Foundation v. San Diego Association of Governments, No. D063288 (Cal. Ct. App. Nov. 24, 2014).
Environmental Organizations Charged That California Drilling Permits Required Environmental Review. Environmental organizations filed a lawsuit in California Superior Court challenging drilling permits issued by the Division of Oil, Gas, and Geothermal Resources (DOGGR) of the California Department of Conservation. Petitioners alleged that DOGGR had issued at least 214 individual permits for drilling in the South Belridge Oil Field since July 29, 2014, without completing the review required under the California Environmental Quality Act. Petitioners contended that DOGGR had failed to consider the cumulative impacts of the permits, including the release of greenhouse gases. Association of Irritated Residents v. California Department of Conservation, Division of Oil, Gas, and Geothermal Resources, No. S-1500-CV-283418 (Cal. Super. Ct., filed Nov. 12, 2014).
California Appellate Court Agreed with Trial Court That San Diego Climate Action Plan Required Supplemental Environmental Review. The California Court of Appeal affirmed a trial court decision that set aside the County of San Diego’s 2012 approval of a Climate Action Plan (CAP). The appellate court agreed with the trial court that the County had erred in assuming that the CAP was within the scope of the County’s 2011 General Plan Update (GPU), for which a program environmental impact report had been prepared. The 2011 GPU included mitigation measures, including one that committed the County to preparing a CAP that included detailed greenhouse gas emissions reduction targets and deadlines and enforceable emissions reductions measures. The appellate court ruled that the CAP did not comply with these requirements. Moreover, because the CAP itself was a “plan-level document” that would facilitate additional development that would not be required to undergo additional review, a supplemental EIR should have been prepared for the CAP and the CAP should have included enforceable mitigation measures. Sierra Club v. San Diego County, No. 37–2012–00101054 (Cal. Ct. App. Oct. 29, 2014).
CEQA Challenge to Merced County Sustainable Communities Strategy Was Filed. Sierra Club and the Center for Biological Diversity filed a lawsuit challenging the approval by the Merced County Association of Governments and its Governing Board of the 2014-2040 Regional Transportation Plan/Sustainable Communities Strategy and the environmental impact report (EIR) prepared for this project. The organizations alleged that the environmental review did not comply with the California Environmental Quality Act. Among the alleged inadequacies were failure to disclose the project’s greenhouse gas emissions in light of California’s long-term targets for emissions reductions and inclusion in the EIR of greenhouse gas mitigation that was “unlawfully deferred, unenforceable, vague, and not certain to occur.” Sierra Club v. Merced County Association of Governments, No. CVM019664 (Cal. Super. Ct., filed Oct. 23, 2014).
InterState Oil Agreed to Surrender Permit for Rail-to-Truck Crude Oil Transfers at California Facility. On October 22, 2014, Earthjustice announced that the Sacramento Metropolitan Air Quality Management District (SMAQMD) had withdrawn the permit issued to InterState Oil Co. (InterState) for transloading crude oil at a McClellan Park, California facility. In September, Earthjustice filed a lawsuit on behalf of Sierra Club claiming that issuance of the permit violated the California Environmental Quality Act. Sierra Club alleged, among other things, that the project would result in significant increases in greenhouse gas emissions. In a letter to InterState dated October 21, SMAQMD said the permit should not have been issued because it failed to meet best available control technology requirements. The letter indicated that InterState had agreed to surrender the permit. Sierra Club v. Sacramento Metropolitan Air Quality Management District, No. 32-2014-80001945 (Cal. Super. Ct. Oct. 22, 2014).
Environmental Group Settled with Bay Area Air Quality Management District in Richmond Refinery Lawsuit. Communities for a Better Environment (CBE) announced on October 16, 2014, that it had settled its lawsuit against the Bay Area Air Quality Management District (BAAQMD) over the alleged issuance of a permit to Chevron USA Inc. for a modernization project at its refinery in Richmond, California. CBE had claimed that BAAQMD failed to comply with the California Environmental Quality Act and in particular claimed that BAAQMD had failed to review the “additional and massive GHG emissions” expected from the project. CBE indicated that the settlement required BAAQMD to base its decision on the permit on an environmental impact report approved by the Richmond City Council in July 2014. Communities for a Better Environment v. Bay Area Air Quality Management District, No. CPF-14-513557 (Cal. Super. Ct., settlement announced Oct. 16, 2014).
Environmental Groups Challenged Approval of Project That Would Reopen Bakersfield Refinery. Three environmental groups commenced a lawsuit in California Superior Court challenging the approval by the Kern County Board of Supervisors of an environmental impact report (EIR) for a project that the groups alleged would result in a “five-fold increase” in the Alon Bakersfield Refinery’s capacity to import crude oil and allow the “shuttered” facility to reopen and operate at full capacity. The groups alleged a number of substantive California Environmental Quality Act (CEQA) violations, including improper use of a 2007 baseline for the assessment of impacts that measured impacts from a point when the refinery was still operating when the baseline should have been current non-operational conditions. With respect to the project’s greenhouse gas emissions, petitioners alleged that the EIR failed to disclose the higher greenhouse emissions that result from refining tar sands; that the EIR had improperly failed to analyze greenhouse gas emissions associated with rail transportation on the grounds that federal law preempted CEQA; that the EIR had improperly assumed that the refinery’s required participation in the California cap-and-trade program would reduce its emissions to zero; and that the EIR ignored emissions from combustion of end products. Association of Irritated Residents v. Kern County Board of Supervisors, No. S-1500-CV-283166 (Cal. Super. Ct., filed Oct. 9, 2014).
Trade Association for Gasoline and Heating Fuel Marketers Alleged Connecticut Failed to Evaluate Methane Leakage Impacts of Natural Gas Infrastructure Expansion Plan. A trade association of energy marketers involved in sales of gasoline and heating fuel filed a lawsuit in Connecticut Superior Court challenging the failure of the Connecticut Department of Energy and Environmental Protection (CTDEEP) and the Connecticut Public Utilities Regulatory Authority (PURA) to prepare an environmental impact evaluation (EIE) pursuant to the Environmental Protection Act in conjunction with the plan to expand Connecticut’s natural gas infrastructure. The plan included expansion of natural gas pipeline capacity into the state, 900 miles of new gas mains inside the state, incentives for gas companies to begin construction quickly, and conversion of 300,000 residential and commercial customers to natural gas. Plaintiff alleged that CTDEEP had failed to consider the direct, indirect, and cumulative impacts of methane leakage from Connecticut’s natural gas distribution system. Connecticut Energy Marketers Association v. Connecticut Department of Energy and Environmental Protection, No. HHD-CV-14-6054538-S (Conn. Super. Ct., filed Oct. 7, 2014).
California Court Ruled That Subdivision Was Subject to CEQA and That Environmental Review Was Mostly Sufficient. The California Court of Appeal reversed a trial court’s determination that a proposed subdivision approved by the County of Colusa was not subject to the California Environmental Quality Act, but proceeded to uphold the environmental review supporting the mitigated negative declaration that the County had issued. (The only shortcoming identified by the appellate court related to potential traffic impacts at a single intersection.) With respect to climate change impacts, the County had concluded that the project would achieve a 35% reduction in greenhouse gas emissions below business-as-usual levels through compliance with regulatory measures. The court found that plaintiffs had not pointed to any evidence that suggested it would be unreasonable to expect the applicant and ultimate land users to comply with the regulatory measures, and that plaintiffs had not pointed to any other substantial evidence in the record that supported a fair argument of significant impact. Rominger v. County of Colusa, No. C073815 (Cal. Ct. App. Sept. 9, 2014).
California State Court Said CEQA Suit Challenging Permits for Crude-by-Rail Operation Was Time-Barred. A judge in the California Superior Court ruled from the bench on September 5, 2014, that a lawsuit challenging the Bay Area Air Quality Management District’s issuance of a permit for a crude-by-rail operation in Richmond, California, was barred by the statute of limitations. Petitioners had alleged that BAAQMD’s action violated the California Environmental Quality Act (CEQA). Communities for a Better Environment v. Bay Area Air Quality Management District, No. CPF-14-513557 (Cal. Super. Ct. Sept. 5, 2014).
California Court Ruled That City’s Analysis of Shopping Center’s Greenhouse Gas Emissions Was Insufficient and Misleading. The California Court of Appeal reversed a trial court’s decision and held that the City of Porterville’s analysis of the greenhouse gas impacts of a large shopping center had not complied with the California Environmental Quality Act. The environmental impact report (EIR) for the project had concluded that there would not be a significant impact because the project’s greenhouse gas emissions would be reduced at least 29% below business-as-usual emissions, in large part because the shopping center would be developed on an infill site. After receiving comments critical of the basis for this conclusion, the City released—on the day of the project’s approval and without opportunity for public review—a memorandum prepared by its consultants that employed a “new and different” analysis to support the conclusion that greenhouse gas emissions would be insignificant. In an unpublished opinion, the court said that the EIR’s analysis of greenhouse gas emissions misled the public because it “interlaced” its qualitative and quantitative assessments and made the quantitative analysis seem essential when, in fact, the EIR presented “a qualitative analysis decorated with baseless numbers.” The court further held that the City’s memorandum presented on the day of the project’s approval was procedurally improper and could not cure the EIR’s insufficiencies. California Healthy Communities Network v. City of Porterville, No. F067685 (Cal. Ct. App. Sept. 3, 2014).
Sierra Club Challenged Air Permits for Crude Oil Terminal in California. Sierra Club filed a lawsuit in California Superior Court challenged the issuance by the Sacramento Metropolitan Air Quality Management District (SMAQMD) of construction and operating permits for a crude oil rail-to-truck operation that Sierra Club said would bring “highly volatile and explosive North Dakotan Bakken crude oil” to California. Sierra Club alleged that SMAQMD had issued the permits “without any notice or public process whatsoever” and that the terminal project could result in a number of significant adverse environmental impacts, including significant increases in greenhouse gas emissions. Sierra Club asked the court to require SMAQMD to set aside and withdrawal its approval of the permits and to refrain from granting other approvals until it has complied fully with the California Environmental Quality Act. Sierra Club v. Sacramento Metropolitan Air Quality Management District, No. 2014-80001945 (Cal Super. Ct., filed Sept. 22, 2014).
Long Beach City Council Agreed That New Agreements for Coal Export Facility Did Not Require New Environmental Review. The Long Beach City Council unanimously denied an appeal filed by environmental groups who argued that the Port of Long Beach Board of Harbor Commissioners should have undertaken a new review under the California Environmental Quality Act (CEQA) for a new operating agreement and 15-year lease for a coal export facility at the port. The City Council agreed with the recommendation of Harbor Department staff that CEQA review was not required because the actions were categorically exempt from CEQA under exemptions for the use and repair of existing facilities and because a negative declaration had been issued for the coal shed facility in 1992 and no changes to the coal shed had been proposed. The City Council was not persuaded by the argument that information regarding the adverse impacts of greenhouse gases required a new review. Recommendation and Draft Resolution (No. RES-14-0069) from Managing Director and Chief Executive of Harbor Department (Aug. 19, 2014); City Council Finished Agenda and Draft Minutes (Aug. 19, 2014).
California Appellate Court Rejected Claims That Large-Scale Residential Redevelopment in San Francisco Would Have Significant Greenhouse Gas Impact. The California Court of Appeal affirmed the denial of a challenge to the approvals by the City and County of San Francisco of the Parkmerced project, a redevelopment of a large-scale residential development originally built in the 1940s to provide middle-income housing. The redevelopment would increase the number of residential units from 3,221 to 8,900 over the course of 20 to 30 years. Among the arguments rejected by the appellate court was the claim that the final environmental impact report (FEIR) prepared under CEQA should have identified significant greenhouse gas production impacts because the project would result in increased greenhouse gas emissions before 2020, inhibiting achievement of California’s statutory goal of reducing greenhouse gas emissions to 1990 levels by 2020. The court said the FEIR had disclosed the anticipated increase in greenhouse gas emissions from construction activities and had adequately supported its conclusion that the increased emissions would not result in a significant impact. San Francisco Tomorrow v. City and County of San Francisco, No. A137753 (Cal. Ct. App. Aug. 14, 2014).
California Supreme Court Will Hear Appeal of CEQA Case Raising Question of Appropriate Baseline for Greenhouse Gas Analysis. The California Supreme Court granted a petition to review a decision upholding the environmental review for a 12,000-acre commercial-residential development known as Newhall Ranch in northwestern Los Angeles County. One of the three issues the court will consider is whether an agency may “deviate from [the California Environmental Quality Act’s] existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher ‘business as usual’ baseline.” Center for Biological Diversity v. Department of Fish and Wildlife, No. S217763 (Cal. July 9, 2014).
Stop Government Action—Other Statutes
Federal Court Ruled That Endangered Species Act’s Federal Agency Consultation Requirements Did Not Apply to Projects in Other Countries. The federal district court for the District of Northern California dismissed Endangered Species Act (ESA) claims in a challenge to the decision by the Export-Import Bank of the United States to provide financing for liquefied natural gas projects in Australia. The court said that the ESA’s consultation requirements did not apply to projects located in foreign countries and that any challenge to the ESA regulations was time-barred. The court dismissed with leave to amend. Plaintiffs have also alleged a claim under the National Historic Preservation Act; that claim was not a subject of this motion to dismiss. Center for Biological Diversity v. Export-Import Bank of the United States, No. C 12-6325 SBA (N.D. Cal. Aug. 12, 2014).
Both Sides Seek Summary Judgment in Center for Biological Diversity’s Challenge to EPA’s Approvals of Impaired Waters Lists. Both EPA and the Center for Biological Diversity (CBD) moved for summary judgment in CBD’s challenge to EPA’s approvals of Oregon’s and Washington’s lists of impaired waters under the Clean Water Act. CBD argued that EPA’s approvals were at odds with evidence in the administrative record of the harmful effects of ocean acidification caused by increasing levels of carbon dioxide in the atmosphere, and also that data EPA was required to consider was missing from the record. EPA said it recognized the seriousness of ocean acidification and that more information and data were available now than were available in 2010, when the reporting period for the challenged listings ended, and more even than in 2012, when EPA approved the lists. EPA argued, however, that viewed in terms of the information available at the time of EPA’s approvals, those approvals were fully supported and deserved deference. Center for Biological Diversity v. EPA, No. 2:13-cv-01866-JLR (W.D. Wash., EPA cross-motion for summ. j. Aug. 15, 2014; CBD motion for summ. j. June 20, 2014).
Stop Government Action—Challenges to Coal-Fired Power Plants
EPA Negotiated Settlement in Texas Power Plant Citizen Suit. The Environmental Integrity Project and Sierra Club negotiated a settlement with the U.S. Environmental Protection Agency (EPA) that would resolve their citizen suit concerning three coal-fired power plants in Texas. Plaintiffs sought to compel EPA to respond to their petitions asking the agency to object to Title V permits issued for the three plants by the Texas Commission on Environmental Quality. Under the settlement agreement’s terms, EPA would respond by May 2015 to two sets of issues raised in the petitions. Both sets of issues concern compliance assurance monitoring and reporting obligations for deviations from permit emissions limits during startup, shutdown, and maintenance. The federal district court granted the parties’ consent motion to stay on November 12, 2014. A notice of the proposed settlement agreement was published in the Federal Register on November 13, 2014. Environmental Integrity Project v. McCarthy, No. 1:14-cv-01196 (D.D.C., order granting consent motion for stay Nov. 12, 2014 ).
Sierra Club Lost Administrative Challenge to FutureGen Project. The Illinois Pollution Control Board (Board) granted summary judgment to the developers of the FutureGen project in Sierra Club’s administrative action alleging violation of the Illinois Environmental Protection Act (Act). The FutureGen project is a coal-fired oxy-combustion power plant that would enable use carbon capture and sequestration technology. Sierra Club alleged that the developers were required to obtain a Prevention of Significant Deterioration preconstruction permit for the project. The Board ruled that because the Illinois Environmental Protection Agency (IEPA) had issued a minor source air permit, the developers had not violated the Act. The Board said it could not review the validity of the permit in this proceeding, to which IEPA was not a party. Sierra Club v. Ameren Energy Medina Valley Cogen, LLC, No. PCB 14-134 (Ill. Pollution Control Bd. Nov. 4, 2014).
Property Owners Challenged Underground Injection Control Permits for FutureGen Project. The Environmental Appeals Board consolidated the appeals of four Class VI Underground Injection Control (UIC) permits issued to FutureGen Industrial Alliance, Inc. for the injection of a carbon dioxide stream generated by an oxy-combustion power plant in Illinois. The petitioners own property in the Area of Review for the project. They challenged certain permit conditions, including the Area of Review, which they contended was based on an undersized plume and inaccurate identification of wells and insufficient investigation of well impacts. Petitioners also argued that the site monitoring network was not explained or justified, especially in light of the undersized plume, and that financial assurance requirements were inadequate for an untested project. In re FutureGen Industrial Alliance, Inc., Appeal Nos. UIC 14-68; UIC 14-69; UIC 14-70; UIC 14-71 (EAB, filed Oct. 1, 2014 (UIC 14-68, UIC 14-69, UIC 14-70, UIC 14-71); consolidated Oct. 9, 2014).
Texas Federal Court Awarded Defendants in Coal Plant Citizen Suit $6.4 Million in Attorney and Expert Witness Fees. The federal district court for the Western District of Texas ordered Sierra Club to pay $6.4 million in attorney fees, expert witness fees and costs to the owners of a coal-fired power plant in Texas. The court found that Sierra Club’s claims in the citizen suit, which alleged particulate matter and opacity violations of the Clean Air Act, were frivolous, unreasonable, or groundless. The court noted that Sierra Club knew prior to filing its suit that the power plant was exempted from particulate matter deviations during maintenance, startup, and shutdown; that Sierra Club at trial failed to prove injury or causation for its lone standing witness; that Sierra Club persisted in keeping the parent company of the owner of the plant as a defendant even though Sierra Club knew it had no role in the ownership or operations of the plant; and that Sierra Club failed to analyze Texas Commission on Environmental Quality investigation reports that documented that there were no particulate matter or opacity violations. The court also rejected Sierra Club’s argument that defendants’ fees were unreasonable. Sierra Club has filed notices of appeal of the granting of the motion for fees and also of the judgment itself. Sierra Club v. Energy Future Holdings Corp., No. 6:12-cv-00108-WSS (W.D. Tex. Aug. 29, 2014).
Sierra Club and Citizen Groups Challenged Approval of Plan to Repower New York Power Plant. Sierra Club and a group called Ratepayer and Community Intervenors commenced a proceeding challenging an order issued by the New York Public Service Commission that approved the addition of natural gas firing capability to a coal-burning power plant in Dunkirk, New York. Petitioners alleged that the agency violated the New York Public Service Law and the State Environmental Quality Review Act. Petitioners argued that the environmental review measured impacts against an improper baseline by comparing impacts to the operation of four coal-fired units rather than to the current operation of a single coal-fired unit at the plant. Petitioners also said that the environmental review incorrectly assumed that natural gas would replace coal as the sole fuel source. In their memorandum of law, petitioners contended that, as a result of these incorrect assumptions, the review failed to assess, among other things, the climate change impacts of the agency’s actions. Sierra Club v. Public Service Commission of State of New York, No. 4996/2014 (N.Y. Sup. Ct., filed Sept. 26, 2014).
Sierra Club Agreed to End Litigation Against Coal-Fired Plants in Mississippi. The Sierra Club and Mississippi Power Company (MPC) (a subsidiary of Southern Co.) entered into a global settlement regarding Sierra Club’s pending litigation related to the Victor J. Daniel Electric Generating Plant in Jackson County, Mississippi, and the Kemper County IGCC Project. Sierra Club agreed to dismiss seven pending judicial actions and proceedings before the Mississippi Public Service Commission (MPSC) and to refrain for three years from initiating, intervening, or participating in lawsuits and regulatory proceedings regarding certain enumerated activities at the Kemper and Daniel projects. For its part, MPC agreed to cease burning coal and other solid fuel at units at two other power plants, one in Mississippi and one in Alabama, and to retire, repower with natural gas, or convert to a non-fossil fuel alternative energy source another plant in Mississippi. MPC also said it would use commercially reasonable efforts to pursue a wind or solar power purchase agreement and agreed to certain environmental commitments, including compliance with U.S. Environmental Protection Agency (EPA) mercury and air toxic standards at the Kemper project. MPC also agreed to contribute $15 million over 15 years to a new energy efficiency and renewable energy program to provide energy efficiency services to low-income households and to provide grants to public educational institutions for the installation of renewable energy equipment. The agreement also limited the scope of both parties’ participation in net-metering rulemaking in Mississippi. Two other actions involving the Kemper project remain active in the Mississippi Supreme Court (Blanton v. Mississippi Power Co., No. 2013-UR-00477-SCT, and Mississippi Power Co. v. Mississippi Public Service Commission, No. 2012-UR-01108-SCT). After the Sierra Club and Mississippi Power Co. sought jointly to dismiss a pending case before the Mississippi Supreme Court, plaintiff Blanton in one of the other pending cases moved to stay the dismissal. His motion was opposed separately by each of the other parties to the litigations (see Sierra Club, MPC, MPSC). Settlement Agreement Between Sierra Club and Mississippi Power Co. (Aug. 1, 2014).
Fifth Circuit Dismissed Challenges to EPA Notices of Violation at Coal-Fired Plants. The Fifth Circuit Court of Appeals ruled that it did not have subject matter jurisdiction over petitions for review of notices of violation issued by the U.S. Environmental Protection Agency (EPA) to the operator of coal-fired power plants in Texas. The Fifth Circuit said that issuance of the notice did not commit EPA to any particular course of action, that the notice imposed no new legal obligations on the operator, that under the Clean Air Act a “notice” was distinct from an “order” (which could be a reviewable final action), and that the operator could challenge the adequacy of the notice as a defense in the pending enforcement action in federal district court. Luminant Generation Co. v. EPA, No. 12-60694 (5th Cir. July 3, 2014).
Environmental Groups Asked Federal Court to Require EPA to Respond to Requests for Objections to Texas Coal Plant Permits. The Environmental Integrity Project and Sierra Club filed an action in the federal district court for the District of Columbia to compel the U.S. Environmental Protection Agency (EPA) to respond to petitions asking the agency to object to Clean Air Act Title V permits issued to three coal-fired power plants in Texas by the Texas Commission on Environmental Quality. The environmental groups contended that EPA had a nondiscretionary obligation to respond to the petitions within 60 days. Environmental Integrity Project v. McCarthy, No. 14-1196 (D.D.C., filed July 16, 2014).
Stop Government Action—Other Project Challenges
Ninth Circuit Ruled That EPA Could Not Waive Compliance with New Air Standards in Permit for Natural Gas Power Plant. Despite agreeing that equities favored an applicant who waited more than three years for EPA to issue an air permit for a natural gas-fired power plant, the Ninth Circuit Court of Appeals concluded that the Clean Air Act’s plain language required vacating the permit, which did not require compliance with regulatory standards in effect at the time the permit was issued. The case involved an application for a plant in Avenal, California, for which a permit application was submitted in 2008. Although the Clean Air Act requires permit determinations to be made within one year of an application, EPA did not issue its final determination until 2011, after a federal district court ordered it to do so. In the course of its deliberations on the permit application, EPA at first contended that it was required to apply new standards promulgated after the application was submitted, including the best available control technology standard for greenhouse gases, but the agency later reversed course and said that it could waive standards that became effective after the statutory one-year deadline for permit determinations. The Ninth Circuit ruled that the Clean Air Act clearly required EPA to apply the regulations in effect at the time of its permit determination and that the Clean Air Act did not allow EPA discretion to grandfather a permit application in under old air standards. The Ninth Circuit noted that this case involved an “ad hoc waiver” of applicable regulations and that its decision did not affect EPA’s ability to grandfather permits through rulemaking (for example, by setting an operative date for new regulations so that a waiver for pending applications was built into the regulation itself). Sierra Club v. EPA, Nos. 11-73342, 11-73356 (9th Cir. Aug. 12, 2014).
Environmental and Citizen Groups Appealed Michigan Steel Plant Air Permit. Four nonprofit organizations appealed the issuance by the Michigan Department of Environmental Quality (MDEQ) of a Clean Air Act permit for a steel plant operated by Severstal Dearborn, LLC. Among the counts alleged by the appellants is that MDEQ failed to apply post-2005 Clean Air Act regulations, including greenhouse gas regulations. South Dearborn Environmental Improvement Association, Inc. v. Michigan Department of Environmental Quality, No. 14-008887-AA (Mich. Cir. Ct., filed July 10, 2014).
Force Government to Act—Clean Air Act
After Environmental Organizations Notified EPA of Intent to Sue over Failures to Regulate Aircraft Greenhouse Gas Emissions, EPA Announced Plan to Make Endangerment Finding. On August 5, 2014, the Center for Biological Diversity and Friends of the Earth submitted a notice of intent to file suit to EPA. The notice indicated that the organizations would challenge EPA’s “unreasonable delay” in fulfilling its obligations under Section 231(a)(2)(A) of the Clean Air Act to determine whether emissions of greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. The two organizations, along with several others, filed a petition in 2007 asking EPA to take these actions, and in 2011, the federal district court for the District of Columbia held that the Clean Air Act imposed a mandatory duty on EPA to make the endangerment finding. The court dismissed the claim in 2012, however, finding that plaintiffs had not shown that EPA had unreasonably delayed in making the determination. On September 3, 2014, EPA issued a document outlining its plan to make a proposed endangerment finding in late April 2015. The plan indicated that EPA’s rulemaking process would take place in parallel with the development of international standards for greenhouse gases from aviation. EPA, U.S. Aircraft Greenhouse Gas Rulemaking Process (Sept. 3, 2014); Center for Biological Diversity & Friends of the Earth, Notice of Intent to File Suit Under Section 304 of the Clean Air Act with Respect to Endangerment Finding and Rulemaking to Reduce Greenhouse Gas Emissions from Aircraft (Aug. 5, 2014).
D.C. Circuit Denied Rehearing on Request for Regulation of Methane from Coal Mines. The D.C. Circuit Court of Appeals denied WildEarth Guardians’ petition for rehearing en banc of its May 2014 decision upholding the U.S. Environmental Protection Agency’s denial of a request to add coal mines to the list of regulated stationary sources under the Clean Air Act. WildEarth Guardians v. EPA, No. 13-1212 (D.C. Cir. July 18, 2014).
Force Government to Act—Other Statutes
Group Filed FOIA Action Against EPA Seeking Records Showing Outside Influence on Renewable Fuel Standards Decisionmaking. The non-profit corporation Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit under the Freedom of Information Act (FOIA) against EPA seeking disclosure of records related to EPA’s 2014 proposed Renewable Fuel Standards (RFS), which would decrease the amount of renewable fuel required to be blended into transportation fuel. CREW alleged that companies affected by the regulation had influenced EPA’s decisionmaking. The complaint also alleged that delays in issuing the RFS suggested that the process was “politicized and tainted by outside influence.” Citizens for Responsibility and Ethics in Washington v. EPA, No. 1:14-cv-01763 (D.D.C., filed Oct. 22, 2014).
Organization Sought Sanctions Against EPA in FOIA Dispute. Landmark Legal Foundation (LLF) asked the federal district court for the District of Columbia to impose sanctions on the U.S. Environmental Protection Agency (EPA) for spoliation. The sanctions motion was made in an action LLF filed before the 2012 presidential election to force EPA to produce documents under the Freedom of Information Act (FOIA) relevant to LLF’s request for records the group believed would show that EPA improperly delayed controversial environmental regulations for political reasons prior to the election. The sanctions motion was filed almost a year after the court’s August 2013 decision permitting LLF to conduct limited discovery because the court found that questions of fact had been raised as to (1) whether EPA deliberately and in bad faith sought to exclude the EPA administrator’s records from the scope of the FOIA request and (2) whether possibly relevant personal e-mails had been excluded from EPA’s records search. LLF contends that EPA failed to recover—and, in fact, erased—text messages and failed to cooperate in investigation the loss of text messages, and to search and recover relevant e-mails from personal accounts. LLF seeks attorney fees, costs, and a fine; the appointment of an independent monitor; and orders directing EPA’s Inspector General to investigate and report on all spoliation issues involving senior officials covered by the FOIA request and directing EPA to notify plaintiffs and petitioners in proceedings against the agency since 2009 of the possibility that EPA engaged in spoliation in their proceedings. Landmark Legal Foundation v. EPA, No. 1:12-cv-01726-RCL (D.D.C., sanctions motion July 24, 2014; reply Sept. 24, 2014).
After Council on Environmental Quality Denies Climate Change Rulemaking Petition, Lawsuit Seeking Response to Petition Is Voluntarily Withdrawn. On August 7, 2014, the Council on Environmental Quality (CEQ) denied a 2008 rulemaking petition to amend its NEPA regulations to require analysis of climate change impacts. The rulemaking petition had been submitted by the International Center for Technology Assessment (ICTA), the Natural Resources Defense Council, and the Sierra Club. CEQ denied the petition on the grounds that NEPA regulations already required assessment of climate impacts. CEQ also indicated that it was considering how to proceed with its 2010 draft guidance on incorporating consideration of climate change into environmental reviews in light of comments it received. On August 20, ICTA and its sister organization, the Center for Food Safety, filed a notice of voluntary dismissal without prejudice of the federal action they filed earlier in 2014 seeking to compel a response to the 2008 petition; the notice indicated that the organizations were preserving their right to challenge the denial on its merits. International Center for Technology Assessment v. Council on Environmental Quality, No. 1:14-cv-00549 (D.D.C. Aug. 20, 2014).
Public Trust Doctrine Plaintiffs Sought Supreme Court Review. The parties who unsuccessfully sought to use the public trust doctrine to compel climate-mitigating action by the federal government filed a petition for certiorari in the U.S. Supreme Court. They asked the Court to review the D.C. Circuit’s opinion affirming the dismissal of their action for lack of subject matter jurisdiction. The D.C. Circuit said in June 2014 that there was no federal question jurisdiction because the public trust doctrine was a matter of state law. Petitioners said their certiorari petition raised the questions of whether the public trust doctrine applies to the federal government and whether federal courts have jurisdiction to enforce the public trust against the federal government. Alec L. v. McCarthy, No. 14-405 (U.S., pet. for cert. filed Oct. 3, 2014).
Alaska Supreme Court Rejected Minors’ Public Trust Doctrine Claims. The Supreme Court of Alaska affirmed the dismissal of an action brought by six children under the Alaska constitution and the public trust doctrine against the State of Alaska seeking to impose obligations on the State to address climate change. As initial matters, the court concluded that plaintiffs had interest-injury standing to make these claims and that sovereign immunity did not shield the State. The court ruled, however, that three of plaintiffs’ claims for relief that asked the court to set carbon dioxide emissions standards and order the state to take actions to meet the standards were nonjusticiable political questions because they required “a science- and policy-based inquiry” better left to the executive or legislative branches of government. While four other claims sought justiciable relief—namely a declaratory judgment interpreting the state constitution to impose a duty on the State to protect the atmosphere—these claims did not present an actual controversy. The court indicated that a declaration of the scope of the public trust doctrine would neither compel the State to take any particular action nor advance the plaintiffs’ interests. The court therefore dismissed these claims on “prudential grounds.” Plaintiffs filed a petition for rehearing on September 25, 2014. Kanuk v. Alaska, No. S-14776 (Alaska Sept. 12, 2014).
In Atmospheric Trust Case, Texas Court of Appeals Said District Court Lacked Jurisdiction. The Texas Court of Appeals ruled that a district court erred in concluding that it had subject matter jurisdiction over an action seeking review of the Texas Commission on Environmental Quality’s (TCEQ’s) denial of a rulemaking petition. The rulemaking petition was part of a legal campaign by the organization Our Children’s Trust to use the public trust doctrine to compel regulation of greenhouse gas emissions. The district court had denied TCEQ’s plea to the jurisdiction, but had ruled that TCEQ had reasonably exercised its discretion in denying the petition. The appellate court concluded that neither the Texas Administrative Procedure Act nor the Texas Water Code waived sovereign immunity for judicial review of denials of rulemaking petitions. Texas Commission on Environmental Quality v. Bonser-Lain, No. 03-12-00555-CV (Tex. Ct. App. July 23, 2014).
Harvard Students Brought Divestment Lawsuit Against University. Harvard Climate Justice Coalition and individual Harvard students filed a lawsuit against the President & Fellows of Harvard College (Harvard Corporation) and Harvard Management Company, Inc., which oversees investment of Harvard Corporation’s endowment. Plaintiffs sought to compel the university to divest from fossil fuel companies. The complaint alleged counts of mismanagement of charitable funds and intentional investment in abnormally dangerous activities. In particular, plaintiffs alleged that the university’s investment in fossil fuel companies was a breach of its fiduciary and charitable duties as a public charity and nonprofit corporation because such investment contributed to climate change and other harms to “the public’s prospects for a secure and healthy future.” The complaint also alleged that climate change would cause damage to the university’s physical campus. Harvard Climate Justice Coalition brought the lawsuit on its own behalf and as next friend to “Plaintiffs Future Generations, individuals not yet born or too young to assert their rights but whose future health, safety, and welfare depends on current efforts to slow the pace of climate change.” Harvard Climate Justice Coalition v. President & Fellows of Harvard College (“Harvard Corporation”), No. ___ (Mass. Super. Ct., filed Nov. 19, 2014).
CARB Invalidated Offset Credits Issued to Operator of Arkansas Facility That Received Notice from EPA That Its Activities Violated RCRA. The California Air Resources Board (CARB) issued a final determination invalidating 88,955 offset credits issued under its greenhouse gas cap-and-trade program to the operator of a facility in Arkansas that destroyed ozone-depleting substances. The facility incinerated and treated the substances to create a calcium chloride brine that was sold as a recycled product for use in oil and gas well drilling, completion, and remediation applications. CARB concluded that that the invalidated credits were generated while the facility was not in compliance with the federal Resource Recovery and Conservation Act (RCRA). The invalidated credits represented credits associated with destruction of ozone-depleting substances between the time the facility received a report on February 2, 2012, from the U.S. Environmental Protection Agency indicating that sale of the brine violated RCRA and the time of the last shipment of the brine to a customer a day later. CARB had been investigating approximately 4.3 million credits issued for activities at the Arkansas facility; the credits not invalidated by the final determination were to be returned to their respective accounts in the cap-and-trade program. California Air Resources Board, Final Determination, Air Resources Board Compliance Offset Investigation, Destruction of Ozone Depleting Substances (Nov. 14, 2014).
EPA and Department of Justice Announced Record Clean Air Act Penalty for Understating Vehicle Greenhouse Gas Emissions. On November 3, 2014, EPA and the Department of Justice announced that they had reached an agreement with the automakers Hyundai and Kia to resolve claims that the companies violated the Clean Air Act and California law by overstating fuel efficiency and understating greenhouse gas emissions for new motor vehicles from model years 2012 and 2013. Pursuant to the consent decree filed in the federal district court for the District of Columbia, the companies agreed to pay a $94-million civil penalty to the United States and a $6-million civil penalty to the California Air Resources Board. The consent decree also provided that the companies would forfeit greenhouse gas emissions credits that EPA said were worth more than $200 million. The credits could have been used to offset emissions from less fuel-efficient vehicle models or sold or traded to other companies for use as offsets. In addition, the companies agreed to undertake a number of corrective measures to prevent future miscalculations of greenhouse gas emissions, including audits of model year 2015 and 2016 vehicles and formation of an independent certification group to oversee new certification training and testing programs as well as enhanced data management and review for “coast down data” from testing of the companies’ vehicles. United States v. Hyundai Motor Co., No. 1:14-cv-1837 (D.D.C., complaint and consent decree filed Nov. 3, 2014).
U.S. and Costco Entered into Consent Decree to Resolve Refrigerant Violations. The United States and Costco Wholesale Corp. (Costco) filed a consent decree in the federal district court for the Northern District of California to resolve the U.S.’s allegations that Costco violated the Clean Air Act and its regulations by failing to repair leaks of the refrigerant R-22—an ozone-depleting hydrochlorofluorocarbon and potent greenhouse gas—from commercial refrigeration appliances. Costco agreed to pay a $335,000 civil penalty and also agreed to implement a refrigerant compliance management plan, to reduce its leak rate, to retrofit appliances at 30 warehouses to use non-ozone-depleting refrigerants with global warming potentials no greater than that of the refrigerant R-407F, and to install environmentally friendly glycol secondary loop refrigeration systems and centrally monitored refrigerant leak detection systems at all new stores. United States v. Costco Wholesale Corp., No. 3:14-cv-03989 (N.D. Cal. Sept. 3, 2014).
Petition to FTC Called Green Mountain Power’s “Double Counting” of Renewable Energy Credits a Deceptive Practice. Four Vermont residents filed a petition with the Federal Trade Commission asking for a determination that Green Mountain Power Corporation (GMP) had engaged in deceptive practices by representing to Vermont electricity customers that GMP was providing them with electricity from renewable sources when, in fact, GMP was selling the Renewable Energy Credits generated by renewable sources to out-of-state utilities. Citing the FTC’s 2012 Guides for the Use of Environmental Marketing Claims (known as the Green Guides), the petitioners contended that GMP had misled Vermont residents concerned about their carbon footprint, the segment of consumers at which GMP targets its marketing efforts. Petition to Investigate Deceptive Trade Practices of Green Mountain Power Company in the Marketing of Renewable Energy to Vermont Consumers (Sept. 15, 2014).
Environmental Organizations Commenced Clean Air Act Citizen Suit Against Operator of Oil Terminal in Oregon. Three environmental organizations commenced a citizen suit under the Clean Air Act against the operators of an oil terminal on the Columbia River in Oregon. Plaintiffs alleged that operation of the terminal resulted in emissions of air pollutants such as volatile organic compounds, nitrogen oxides, greenhouse gases, and hazardous air pollutants. They claimed that the operators should have obtained a Prevention of Significant Deterioration for the project. They sought declaratory and injunctive relief, and also penalties. Northwest Environmental Defense Center v. Cascade Kelly Holdings LLC, No. 3:14-cv-01059 (D. Or., filed July 2, 2014).
Climate Change Protestors and Scientists
Ninth Circuit Rejected Shell’s Preemptive Litigation Against Environmental Groups over Federal Approvals for Alaska Off-Shore Operations. The Ninth Circuit Court of Appeals ruled that it lacked jurisdiction over a declaratory judgment action brought by Shell Gulf of Mexico Inc. and Shell Offshore Inc. (Shell) against environmental organizations in connection with federal approvals of oil spill response plans for Shell operations in the Beaufort and Chukchi Seas on Alaska’s coast. Shell anticipated the organizations would challenge the approvals, and sought to expedite the litigation by bringing its own suit. The Ninth Circuit rejected this “novel litigation strategy,” finding that Shell and the environmental groups did not have “adverse legal interests.” A related appeal that raised similar issues was dismissed as moot. Shell’s declaratory judgment action had been consolidated with an action brought by environmental groups to challenge the federal approvals; the environmental groups’ appeal of a summary judgment decision against them is still pending in the Ninth Circuit. Shell Gulf of Mexico Inc. v. Center for Biological Diversity, Inc., No. 13-35835 (9th Cir. Nov. 12, 2014); Shell Gulf of Mexico Inc. v. Center for Biological Diversity, Inc., No. 12-36034 (9th Cir. Nov. 12, 2014).
FOIA Action Filed Regarding Polar Vortex Video. The Competitive Enterprise Institute (CEI) filed an action under the federal Freedom of Information Act (FOIA) to compel the Office of Science and Technology Policy (OSTP) to produce documents related to a video posted on the White House website in January 2014 called “The Polar Vortex Explained in 2 Minutes.” The video, according to CEI, was “about global warming supposedly causing severe winter cold.” CEI alleged that OSTP improperly relied on FOIA’s deliberative process privilege to withhold documents. Competitive Enterprise Institute v. Office of Science and Technology Policy, No. 1:14-cv-01806 (D.D.C., filed Oct. 30, 2014).
District Attorney in Massachusetts Dropped Conspiracy Charges Against Climate Protestors Who Blocked Coal Shipment. On September 8, 2014, Bristol County (Massachusetts) District Attorney Samuel Sutter dropped criminal conspiracy charges against two climate activists who in 2013 used a lobster boat to block a shipping channel to stop a coal shipment to the Brayton Point Power Station in Somerset, Massachusetts. to plea guilty to reduced charges of disturbing the peace and motor vessel violations. The activists had indicated that they would pursue a necessity defense that would require them to establish that climate change presented a clear and imminent danger, not one that was debatable or speculative; that they reasonably expected that their actions would be effective in directly reducing or eliminating the danger; and that there was no legal alternative which would have been effective to reduce or eliminate the danger. In dropping the charges, the district attorney called climate change “one of the gravest crises our planet has ever faced” and said that “[i]n my humble opinion, the political leadership on this issue has been sorely lacking.” Commonwealth v. Ward, Commonwealth v. O’Hara (Mass. Dist. Ct. Sept. 8, 2014).
New Jersey Oceanfront Property Owners Challenged Easements for Dune Project. A group of oceanfront property owners in the Township of Long Beach, New Jersey, filed a lawsuit against the Township and the State of New Jersey challenging the Township’s taking of permanent easements for the construction of flood hazard risk reduction measures. Such measures are to include expansion of a dune structure. The property owners contended that the Township illegally bypassed New Jersey’s Eminent Domain Act and instead purported to take the easements in favor of itself and the State pursuant to the State’s Disaster Control Act. Carolan v. Township of Long Beach, No. PWL 3379-14 (N.J. Super. Ct., filed Nov. 5, 2014).
New Jersey Jury Awarded Homeowners $300 for Loss of Beachfront View. A jury awarded homeowners $300 in compensation for the loss of their ocean view resulting from an easement required for public construction of a dune system designed to protect properties from extreme weather. The homeowners had sought $800,000, but received far less as a result of a New Jersey Supreme Court case involving other homeowners who sought compensation for loss of beachfront rules in which the court said that compensation awards should take into account the “quantifiable benefits” of a public project on the value of the remaining property. Borough of Harvey Cedars v. Groisser, No. L-001429-09 (N.J. Super. Ct. July 1, 2014).
New York Federal Court Said Agencies Had Adequately Considered Sea Level Rise at Solid Waste Marine Transfer Station. The federal district court for the Southern District of New York upheld the issuance by the United States Army Corps of Engineers of a Clean Water Act Section 404 permit for a solid waste marine transfer station on the East River on the Upper East Side of Manhattan. Among the arguments rejected by the court was that New York City should have prepared a supplemental environmental impact statement to address both flooding after Superstorm Sandy and also the issuance of new advisory flood maps by the Federal Emergency Management Agency (FEMA). The court said the City’s actions, which included preparation of a technical memorandum after issuance of the FEMA maps and incorporation of additional floodproofing measures, satisfied “hard look” requirements under New York’s State Environmental Quality Review Act. The court also rejected the claim that the Corps should have supplemented its own environmental review after Sandy. Residents for Sane Trash Solutions, Inc. v. United States Army Corps of Engineers, No. 12 Civ. 8456 (PAC) (S.D.N.Y. July 10, 2014).
Petitions Under Endangered Species Act and Related Litigation
Environmental Organizations Submitted Notice of Intent to Sue Over Gunnison Sage-Grouse Listing. The Center for Biological Diversity (CBD) sent a 60-day notice of its intent to file a lawsuit challenging the decision of the U.S. Fish and Wildlife Service (FWS) to list the Gunnison sage-grouse as a threatened—rather than endangered—species under the Endangered Species Act (ESA). The notice, which CBD sent on behalf of itself and the Western Watersheds Project, said the FWS’s decision was based on political pressure and that it violated both the substantive and procedural requirements of the ESA. Among other things, the notice said that FWS “arbitrarily decided” that climate change was not a real threat to the species. Center for Biological Diversity & Western Watersheds Project, Notice of Intent to Sue: Violations of the Endangered Species Act (“ESA”) in Listing the Gunnison Sage-Grouse As Threatened (Nov. 20, 2014).
Federal Court Upheld Decision Not to List Sonoran Desert Bald Eagles as Threatened or Endangered. The federal district court for the District of Arizona rejected a challenge to the U.S. Fish and Wildlife Service’s (FWS’s) determination that the Sonoran Desert population of bald eagles did not constitute a distinct population segment (DPS) under the Endangered Species Act and was therefore not eligible for listing as threatened or endangered. One of plaintiffs’ arguments was that FWS’s determination had failed to consider climate change as a relevant factor for establishing a DPS. The court found that FWS had considered whether the Sonoran Desert bald eagles had unique characteristics that would help bald eagles as a whole under conditions caused by climate change, even though it had not done so under the heading of climate change. Center for Biological Diversity v. Jewell, No. 12-cv-02296 (D. Ariz. Nov. 4, 2014).
Environmental Groups Challenged Decision to Withdraw Proposed Listing of Wolverine as Threatened Species in Contiguous United States. A group of environmental organizations challenged the withdrawal of a proposal to list the distinct population segment of the North American wolverine in the contiguous United States as a threatened species under the Endangered Species Act. The complaint said that the wolverine resided in “high-altitude and high-latitude ecosystems characterized by deep snow and cold temperatures” and that its survival in the contiguous U.S. was threatened by climate change, as well as by other threats such as highly isolated and fragmented habitat, extremely low population numbers, intentional and incidental trapping, and disturbance by winter recreation activities. Plaintiffs alleged that the Fish and Wildlife Service (FWS) based the withdrawal of the proposed listing on “manufactured uncertainty as to climate modeling and wolverine habitat needs and reached speculative conclusions about the wolverine’s future prospects that run directly counter to all of the evidence in the record.” Plaintiffs also alleged that the FWS “arbitrarily dismissed” the non-climate factors that compounded the threat to the wolverine. Center for Biological Diversity v. Jewell, No. 9:14-cv-00247-DLC (D. Mont., filed Oct. 13, 2014).
Federal Court in Alaska Vacated Listing of Bearded Seals as Threatened Species. The federal district court for the District of Alaska ruled in three actions that the listing of the Beringia distinct population segment (DPS) of bearded seals as threatened under the Endangered Species Act (ESA) was arbitrary, capricious, and an abuse of discretion. The actions were brought by (1) the Alaska Oil and Gas Association and the American Petroleum Institute, (2) the State of Alaska, and (3) parties representing inhabitants and local government in northern Alaska. Procedurally, the court said that the National Marine Fisheries Service (NMFS) had not responded adequately to the State of Alaska’s comments because NMFS had responded to some of the comments only in the preamble to the final rule, rather than in a letter directed to the State, as required by the ESA. Substantively, the court said that NMFS’s forecasting of possible impacts of loss of sea-ice on the bearded seal population more than 50 years into the future was too speculative and too remote. The court also said that its finding that the listing was arbitrary and capricious was bolstered by NMFS’s explicit finding that no protective regulations were required. The court also found that plaintiffs did not have standing to challenge the listing of the Okhotsk DPS of bearded seals, which is located in the Sea of Okhotsk off the coast of Japan and the Russian Federation. Alaska Oil and Gas Association v. Pritzker, No. 4:13-cv-00021-RRB (D. Alaska July 25, 2014).
NON-U.S. Climate Litigation Chart
A Tuvalu Family seeking refuge from climate change impacts is granted residency in New Zealand, but the Immigration Tribunal cites other factors in its decision. A family from Tuvalu appealed after they were denied New Zealand resident visas. The family argued, inter alia, that they would be at risk of suffering the adverse impacts of climate change if they were deported to Tuvalu. Pursuant to the Immigration Act 2009, the New Zealand Immigration and Protection Tribunal found that the family had established “exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.” However, while the Tribunal acknowledged that climate change impacts may affect enjoyment of human rights, it explicitly declined to reach the question of whether climate change provided a basis for granting resident visas in this case. Instead, the Tribunal based its finding of “exceptional circumstances” on other factors, including the presence of the husband’s extended family in New Zealand, the family’s integration into the New Zealand community, and the best interests of the children. In re: AC (Tuvalu) (Immigration and Protection Tribunal New Zealand [2014] Cases 501370-371)—Added to “Human Rights” slide.
In United Kingdom, court upholds early discontinuance of renewable energy support scheme. Four solar energy companies challenged a decision of the Secretary of State for Energy and Climate Change (the “Secretary”) to discontinue a renewable energy support scheme. The support scheme provided financial incentives for the creation of generation capacity from renewable sources, in line with the United Kingdom’s goal to combat climate change by decreasing greenhouse gas emissions and increasing energy consumption from renewable sources. Although the government had represented that the scheme would run until 2017, the Secretary announced that it would end two years early due to unexpectedly high costs. The solar energy companies argued, inter alia, that the Secretary’s decision was beyond his statutory authority and that government statements indicating the program would run until 2017 were binding. The court found that the Secretary acted within his authority, citing both the need to balance public policy objectives in the field of energy and climate change and law requiring the Secretary to exercise budgetary discipline. Solar Century Holdings Ltd v. Secretary of State for Energy and Climate Change (United Kingdom, High Court of Justice Queen’s Bench Division [2014] EWHC 3677 (Admin)—Added to “Renewable Projects” slide.
European Court of Justice upholds Flemish agency’s refusal to accept proof of renewable electricity produced outside the Flemish region towards an electricity supplier’s quota for the use of green energy. A Belgian electricity supplier (Essent) challenged the decision of the defendant regulatory authority (VREG) to impose fines on Essent for failing to meet its quota obligation for the use of renewable energy. Pursuant to Belgium’s national support scheme, VREG refused to accept Essent’s submission of “guarantees of origin” attesting to the production of green electricity outside of the Flemish region. Essent argued, inter alia, that VREG’s decision was inconsistent with the Treaty on the Functioning of the European Union (TFEU) and the Agreement on the European Economic Area (EEA). The court held that European Union law does not require a national support scheme promoting the use of renewable energy to extend to green electricity produced in other European Union nations. In reaching its decision, the court reasoned that the law at issue was justified on public interest grounds, since it contributed to the European Union’s pledge to combat climate change by reducing emissions of greenhouse gases. Essent Belgium NV v. Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (European Union, European Court of Justice, Fourth Chamber [2014] Cases C‑204/12 to C-208/12)—also added to “Utilities” slide.
In United Kingdom, Court finds denial of planning permit for solar farm unlawful due to lack of consideration of development policies encouraging renewables. Lark Energy Limited challenged the decision of the Secretary for State Communities (Secretary) to dismiss its appeal against the refusal of the District Council of its application for planning permission for the installation of a 24 MW solar farm. Lark Energy had been granted a permit for a 14 MW solar array but then appealed to increase the installation. The inspector found that the appeal scheme should be approved because the significant benefits, including increased renewable energy and decreased greenhouse gas emissions, outweighed the limited harm to the character and appearance of the countryside. However, the Secretary disagreed, finding that the harm to the character and appearance of the area caused by the appeal scheme was greater than the permitted scheme such that it outweighed the benefits. Lark Energy appealed the Secretary’s findings in the High Court of Justice alleging that the Secretary had failed to sufficiently consider local and national development policies. The court found that the Secretary had failed to fulfill his duty to consider whether the appeal scheme was in accordance with local council’s development plan. The court quashed the Secretary’s decision and remitted the case to him for redetermination. Lark Energy Ltd v. Secretary for State for Communities (United Kingdom, High Court of Justice Queen Bench Division [2014] EWHC 2006 (Admin).
European Court of Justice upholds agency’s refusal to grant green electricity certificate to wind farm. A Finnish wind farm challenged defendant Swedish energy agency’s refusal to grant a green electricity certificate. The agency refused on the grounds that only green electricity production installations located within the Swedish territory may be awarded the certificate. Plaintiff claimed that the territorial limitation of Sweden’s energy certificate scheme under Directive 2009/28 was inconsistent with Article 34 of the Treaty on the Functioning of the European Union (TFEU). The court upheld Sweden’s national support scheme and found that it was compatible with TFEU Article 34 because the national quota promotes increased use of renewable energy sources in electricity production. Ålands Vindkraft AB v. Energimyndigheten (European Union, European Court of Justice, Grand Chamber [2014] Case C‑573/12).
