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. If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.
Here are the latest additions to the Climate Case Chart
Update #76 (July 6, 2015)
FEATURED DECISION
Washington Court Ordered Department of Ecology to Reconsider Denial of Greenhouse Gas Rulemaking Petition in Light of December 2014 Report Regarding Costly Climate Change Impacts
The Washington Superior Court ordered the Washington Department of Ecology (Ecology) to reconsider its denial in August 2014 of a rulemaking petition submitted by eight children that asked Ecology to recommend to the state legislature that greenhouse gas emissions be limited “consistent with current scientific assessment of requirements to stem the tide of global warming.” The court remanded to Ecology for consideration of a December 2014 report prepared by Ecology at the direction of the governor and an affidavit submitted by the petitioners that reviewed the report. The court noted that the December 2014 report concluded that effects of climate change would be costly unless additional actions were taken to reduce greenhouse gas emissions but recommended no change to the state’s greenhouse gas emissions limits. Foster v. Washington Department of Ecology, No. 14-2-25295-1 (Wash. Super. Ct. June 23, 2015): added to the “Common Law Claims” slide.
DECISIONS AND SETTLEMENTS
D.C. Circuit Denied Challenges to Proposed Regulation of Carbon Dioxide Emissions from Existing Power Plants
The D.C. Circuit dismissed challenges to EPA’s proposed rule regulating carbon dioxide emissions from existing power plants. The challenges were brought by a coal company and 12 states. The D.C. Circuit concluded that it did not have authority to review proposed rules and denied the petitions for review. The court rejected the petitioners’ argument that the All Writs Act provided it with authority to “circumvent bedrock finality principles” to review proposed regulations. The court also was not persuaded that EPA’s public statements regarding its legal authority to regulate carbon dioxide emissions constituted final agency action, or that the petitioners could challenge a 2011 settlement agreement in which EPA merely agreed to a timeline for determining whether it would regulate carbon dioxide emissions from existing plants. In a concurring opinion, Judge Henderson wrote that she believed the court had jurisdiction to consider the application for a writ of prohibition under the All Writs Act but that a writ was not appropriate because by the time the D.C. Circuit issued its opinion, “or shortly thereafter,” EPA would have issued a final rule that could be challenged as a final agency action. In re Murray Energy Corp., Nos. 14-1112, 11-1451; West Virginia v. EPA, No. 14-1146 (D.C. Cir. June 9, 2015): added to the “Challenges to Federal Action/Clean Air Act” slide.
D.C. Circuit Dismissed Challenges to Classification of Carbon Dioxide Streams as Solid Waste
The D.C. Circuit Court of Appeals ruled that petitioners did not have standing to challenge EPA’s determination that supercritical carbon dioxide streams injected into certain underground wells for purposes of geologic sequestration are “solid waste” under the Resource Conservation and Recovery Act. EPA’s determination concerned a new class of wells—Class VI wells—established by EPA under the Safe Drinking Water Act specifically for carbon dioxide injection. The D.C. Circuit said that one petitioner—a company that captured and compressed carbon dioxide for use in enhanced oil recovery or injection in another class of well—had no plans to use the type of well governed by the challenged rule. Therefore, neither the company nor the organization of which it was a member had standing. A second organization that relied on a member for representational standing also did not have standing because its member company was not directly regulated by the challenged rule but was merely concerned that the rule portended regulation of its enhanced oil recovery operations. Carbon Sequestration Council v. EPA, Nos. 14-1046, 14-1048 (D.C. Cir. June 2, 2015): added to the “Challenges to Federal Action/Other Rules” slide.
Clean Air Act Settlement Announced for Coal-Fired Power Plant on Navajo Nation
The United States, three environmental groups, and the operator and owners of the Four Corners Power Plant filed a consent decree with the federal district court for the District of New Mexico. The proposed settlement would resolve allegations by the U.S. and the groups that the operator and owners of the coal-fired power plant, which is located in New Mexico on the Navajo Nation, violated the Clean Air Act by making major modifications to major emitting facilities without obtaining the necessary permits. The settlement would require $160 million in upgrades to pollution controls and would also require payment of a $1.5-million civil penalty and the expenditure of $6.7 million on three health and environmental mitigation projects for members of the Navajo Nation. The projects are a project to replace or retrofit wood- and coal-burning appliances, a home weatherization project, and a health care project to provide funds for medical screenings for Navajo people living in the vicinity of the power plant. The environmental groups filed their lawsuit in 2011. The U.S. filed its complaint concurrently with the consent decree. United States v. Arizona Public Service Co., No. 15-cv-537 (D.N.M., consent decree and complaint filed June 24, 2015); Diné Citizens Against Ruining Our Environment v. Arizona Public Service Co., No. 1:11-cv-00889 (D.N.M. consent decree filed June 24, 2015): added to the “Challenges to Coal-Fired Power Plants” slide.
Alaska Federal Court Refused to Dismiss Shell’s Lawsuit Against Greenpeace
In June, the federal district court for the District of Alaska denied Greenpeace, Inc.’s motion to dismiss the lawsuit that Shell Offshore, Inc. and Shell Gulf of Mexico Inc. (together, Shell) brought to prevent Greenpeace activists from interfering with its Arctic drilling season. In May, the court had granted Shell a preliminary injunction. In its June decision, the court explained that it had diversity and federal question jurisdiction, as well as admiralty jurisdiction, over the proceeding, and that its jurisdiction extended to claims arising from activities on the high seas. The court also concluded that Shell’s claims were ripe, were not displaced or preempted by federal law, and were not barred by the doctrines of primary jurisdiction, forum non conveniens, or comity. The court also found that Shell had adequately pled trespass to chattels, interference with navigation, private nuisance, and civil conspiracy claims. Shell Offshore, Inc. v. Greenpeace, Inc., No. 3:15-cv-00054 (D. Alaska June 12, 2015): added to the “Climate Protesters and Scientists” slide.
California Federal Court Denied Injunction in Challenge to Solar Project on Tribal Ancestral Lands
The federal district court for the Central District of California refused to issue a preliminary injunction to stop development of a utility-scale solar power project within the ancestral lands of the Colorado River Indian Tribes. One National Environmental Policy Act argument made by the plaintiffs was that the statement of purpose and need for the project was too narrow because the Bureau of Land Management (BLM) defined the purpose and need as responding to a request for a variance. The court concluded that BLM had sufficiently included its broader goals, including by citing President Obama’s Climate Action Plan, which set a goal of approving 20,000 MW of renewable energy projects on public lands by 2020. Colorado River Indian Tribes v. Department of Interior, No. 5:14-cv-02504 (C.D. Cal. June 11, 2015): added to the “Stop Government Action/Project Challenges” slide.
D.C. Circuit Denied Stay in Challenge to Maryland LNG Facilities
The D.C. Circuit declined to place an emergency stay on the Federal Energy Regulatory Commission’s approval of the Dominion Cove Point liquefied natural gas (LNG) facilities in Maryland, or to expedite briefing. The court said that the petitioners had not satisfied the stringent requirements for a stay pending court review or articulated strongly compelling reasons for expediting briefing. EarthReports, Inc. dba Patuxent Riverkeeper v. Federal Energy Regulatory Commission, No. 15-1127 (D.C. Cir. June 12, 2015): added to the “Stop Government Action/NEPA” slide.
California Appellate Court Upheld Analysis of Climate and Energy Impacts of Pasadena Repowering Project but Remanded for New Consideration of Water Impacts
The California Court of Appeal reversed a trial court’s denial of a challenge to the City of Pasadena’s approval of the Glenarm Power Plant Repowering Project. In an unpublished decision, the court agreed with the petitioner that the City had failed to conduct an adequate analysis of the impacts of supplying water to the project. The court rejected claims, however, that the analysis of climate and energy impacts was inadequate. California Clean Energy Committee v. City of Pasadena, Nos. B254889, B255994 (Cal. Ct. App. June 1, 2015): added to the “State NEPAs” slide.
Fifth Circuit Affirmed Dismissal of Homeowners’ Admiralty Suit Against Army Corps of Engineers for Aggravation of Hurricane Katrina Damage
The Fifth Circuit Court of Appeals affirmed the dismissal of claims against the United States Army Corps of Engineers and the United States in which homeowners sought damages under three admiralty statutes for the exacerbation of Hurricane Katrina’s effects in the New Orleans area. The court held in an unpublished opinion that the Corps’ decision on its method of dredging the Mississippi River Gulf Outlet channel was shielded from liability by the discretionary function exemption. The court rejected the homeowners’ contention that the dredging method used by the Corps for decades caused wetland erosion in violation of federal and state statutes and regulations that specifically prescribed that the Corps use methods that would protect wetlands. In re Katrina Canal Breaches Litigation, Nos. 14-30060, 14-30136 (5th Cir. May 28, 2015): added to the “Adaptation” slide.
In Denying Summary Judgment on Nuisance, Trespass Claims, Connecticut Court Cited Possibility That Climate Change Caused Damage to Property
A property owner in South Glastonbury, Connecticut, brought an action against the Town of Glastonbury seeking damages and injunctive relief for damages caused to his property over the course of several decades by upstream development approved by the Town, stormwater increase, and water quality degradation. The owner filed a seven-count complaint, that included claims of trespass, nuisance, and intentional infliction of emotional distress against the Town. The Connecticut Superior Court denied the owner summary judgment on these claims, finding that the Town had raised genuine issues of material fact as to what cause the damage to the plaintiff’s property. The court noted, for instance, that climate change, “especially an increase in intense precipitation” could be responsible for the erosion and increase stormwater flow on the property. Emerick v. Town of Glastonbury, No. HHDCV115035304S (Conn. Super. Ct. May 14, 2015): added to the “Adaptation” slide.
Illinois Court Dismissed Municipal Defendants from Lawsuit Seeking Flood Damages
An Illinois Circuit Court dismissed claims against the Metropolitan Water Reclamation District, Maine Township, and Park Ridge in a lawsuit brought by people whose property sustained damage in floods in 2008. The plaintiffs’ charges included that these municipal defendants, which had jurisdiction over a stormwater system, caused the flooding, due in part to their failure to prepare for climate change impacts. The court held that the public duty rule exempted the municipal defendants from liability. Tzakis v. Berger Excavating Contractors, Inc., Nos. 09 CH 6159, 10 CH 38809, 11 CH 29586, 13 CH 10423 (Ill. Cir. Ct. Apr. 3, 2015): added to the “Adaptation” slide.
NEW CASES, MOTIONS, AND NOTICES
Oklahoma Sued EPA Over Clean Power Plan
Oklahoma filed a lawsuit against EPA in the federal district court for the Northern District of Oklahoma seeking declaratory and injunctive relief to prevent EPA from proceeding with its proposal to regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act. The complaint alleged that EPA’s proposal was “plainly ultra vires” and was already forcing Oklahoma to restructure its energy sector and to make substantial expenditures to maintain electric service in the state. Oklahoma v. McCarthy, No. 4:15-cv-00369 (N.D. Okla., filed July 1, 2015): added to the “Challenges to Federal Action” slide.
Center for Biological Diversity and Former EPA Scientist Petitioned EPA to Regulate Carbon Dioxide Under TSCA
The Center for Biological Diversity and a retired EPA scientist submitted a petition to EPA requesting that the agency adopt regulations under Section 6 of the Toxic Substances Control Act (TSCA) to protect public health and the environment from harms associated with anthropogenic emissions of carbon dioxide. The petitioners argue that such emissions meet the standard for regulating under Section 6 because they have the potential to change ocean chemistry, putting marine ecosystems at risk. As an alternative to regulation under Section 6, the petitioners asked that EPA adopt a rule under Section 4 of TSCA requiring manufacturers and processors responsible for the generation of carbon dioxide to conduct testing if the agency determines that insufficient information is available to determine the effects of carbon dioxide emissions. Petition for Rulemaking Pursuant to Section 21 of the Toxic Substances Control Act, 15 U.S.C. § 2620, Concerning the Regulation of Carbon Dioxide (June 30, 2015): added to the “Force Government to Act/Other Statutes” slide.
Coal Mine Owner Asked for Stay of Colorado District Court’s NEPA Decision
After a federal district court in Colorado deemed the environmental review for a coal mine expansion insufficient, the coal mine’s owner appealed the court’s decision in the Tenth Circuit Court of Appeals and asked for a stay pending appeal. On June 29, 2015, the Tenth Circuit issued an order questioning whether the district court’s judgment was final and suspending briefing. The order noted that the district court had not vacated agency approval of the expansion, and instead had given the Office of Surface Mining Reclamation and Enforcement 120 days to fulfill its review obligations under the National Environmental Policy Act (NEPA), after which the court indicated it would issue an order of vacatur if the agency had not completed its work. WildEarth Guardians v. United States Office of Surface Mining Reclamation and Enforcement, No. 15-1186 (10th Cir. order suspending briefing schedule June 29, 2015); WildEarth Guardians v. United States Office of Surface Mining Reclamation and Enforcement, No. 13-cv-00518 (D. Colo. notice of appeal and motion for stay June 1, 2015): added to the “Stop Government Action/NEPA” slide.
New York City Appealed FEMA Flood Maps
New York City submitted an appeal of Preliminary Flood Insurance Rate Maps (FIRMs) that the Federal Emergency Management Agency (FEMA) published in January 2015. The City indicated that it had identified significant technical and scientific errors, including overstatement by more than two feet of base flood elevations and misrepresentation of the special flood hazard area (SFHA) by 35%. The City said the Preliminary FIRMs unnecessarily put 26,000 buildings and 170,000 residents in the SFHA. The City distinguished between “current flood risk,” for which it said it relied on FIRMs to provide a technically accurate picture, and “future flood risk,” for which the City said it used the FIRMs in consultation with sea level rise projections. The City stated that “[c]limate change continues to be the challenge of our generation and conveying this risk accurately is paramount. Inaccurate FIRMS would undermine the credibility upon which many other efforts are built and would require unnecessary spending.” Appeal of FEMA’s Preliminary Flood Insurance Rate Maps for New York City (June 26, 2015): added to the “Adaptation” slide.
EPA Asked Fourth Circuit for Writ of Mandamus After Federal Court in West Virginia Ordered EPA to Respond to Discovery Requests in Case Seeking Clean Air Act Jobs Study
The federal district court for the Northern District of West Virginia ordered EPA to comply with discovery requests made by coal companies in their lawsuit seeking to compel EPA to undertake an evaluation of the effects on employment of administration and enforcement of the Clean Air Act. The court noted that “little meaningful discovery” had occurred even though EPA had already filed a motion for summary judgment. After the district court denied reconsideration, EPA filed a petition for writ of mandamus in the Fourth Circuit Court of Appeals, asking the appellate court to direct the district court to vacate the discovery order and disallow discovery. EPA said that this unusual relief was warranted because “Congress strictly limited the scope of judicial inquiry in nondiscretionary-duty suits like this one, and the extraordinarily broad discovery compelled by the district court has no reasonable prospect of unearthing evidence relevant to the ultimate disposition of this case.” In re McCarthy, No. 15-1639 (4th Cir., petition for writ of mandamus filed June 12, 2015); Murray Energy Corp. v. McCarthy, 5:14-cv-00039 (N.D. W. Va. May 29, 2015): added to the “Challenges to Federal Action” slide.
Environmental Groups Challenged BLM Resource Management Plan for Bakersfield Area in California
Two environmental groups filed a lawsuit in federal court in California challenging the environmental review conducted by the United States Bureau of Land Management (BLM) for the resource management plan for 400,000 acres of public land and 1.2 million acres of subsurface mineral estate “at the epicenter of oil and gas drilling in California” in the area of Bakersfield. The plaintiffs contended that the environmental impact statement (EIS) prepared for the plan did not include an adequate discussion of alternatives, and that the EIS failed to disclose significant environmental impacts, including the climate-related impacts of hydraulic fracturing. The plaintiffs also claimed that BLM should have prepared a supplemental EIS to take into account new information on the impacts of unconventional oil and gas extraction techniques. Center for Biological Diversity v. United States Bureau of Land Management, No. 2:15-cv-4378 (C.D. Cal., filed June 10, 2015): added to the “Stop Government Action/NEPA” slide.
Federal Government Appealed Decision That Vacated Navajo Mine Permit Revision
The United States Office of Surface Mining Reclamation and Enforcement (OSM) and other federal defendants joined the owner of the Navajo Mine in New Mexico in appealing March and April decisions by the federal district court for the District of New Mexico that vacated the federal approval of a permit revision. The approval would allow expansion of the coal mine. The court said OSM should have considered the indirect effects of the mine’s expansion—in particular, the impacts of mercury deposition in the area of the coal-fired Four Corners Power Plant, which uses all of the coal produced from the mine. Diné Citizens Against Ruining Our Environment v. Office of Surface Mining Reclamation and Enforcement, No. 12-cv-01275 (D. Colo. notice of appeal June 5, 2015): added to the “Stop Government Action/NEPA” slide.
Rehearing Sought on D.C. Circuit Ruling That Petitioners Challenging Car and Truck Standards Lacked Standing
Petitioners who unsuccessfully challenged the greenhouse gas and fuel economy standards for new cars and trucks before the D.C. Circuit Court of Appeals asked the court for rehearing en banc. The court had found that these petitioners—who argued that EPA failed to comply with a statutory mandate to submit rules for peer review to the Science Advisory Board (SAB)—lacked standing. The court said the petitioners failed to establish causation or redressability because their alleged injury of increased cost to purchase vehicles would not be redressed since the standards, which were issued by the National Highway Traffic Safety Administration (NHTSA) as well as EPA, would continue to apply because the SAB requirement did not apply to NHTSA. In their petition for rehearing en banc, the petitioners argued that the standing determination conflicted with Supreme Court precedent on redressability. The petitioners also argued that the case involved a question of exceptional importance. Delta Construction Co., Inc. v. EPA, Nos. 11-1428, 11-1441, 12-1427; California Construction Trucking Association, Inc. v. EPA, No. 13-1076 (D.C. Cir., petition for reh’g en banc filed June 4, 2015).
Environmental Groups Challenged Chukchi Sea Exploration Plan
Ten environmental and Alaska Native groups filed a petition in the Ninth Circuit Court of Appeals challenging the Bureau of Ocean Energy Management’s approval of an offshore oil exploration plan for the Chukchi Sea in the Arctic Sea off the coast of Alaska. The petitioners claimed that the approval of the plan, which was submitted by Shell Gulf of Mexico Inc., violated the Outer Continental Shelf Lands Act and the National Environmental Policy Act. Alaska Wilderness League v. Jewell, No. 15-71656 (9th Cir., filed June 2, 2015): added to the “Stop Government Action/NEPA” slide.
Environmental Groups to Challenge New Approval of Chukchi Sea Lease Sale
After the Bureau of Ocean Energy Management (BOEM) affirmed its approval of an oil and gas lease sale in the Chukchi Sea off the northwest coast of Alaska, the parties notified the federal district court for the District of Alaska that the plaintiffs had decided to challenge BOEM’s determination. These developments regarding the Chukchi Sea lease sale follow the Ninth Circuit’s ruling in January 2014 that BOEM’s earlier environmental review for the lease sale was deficient because it was based on an arbitrary estimate of the amount of economically recoverable oil. In response to the Ninth Circuit’s decision, BOEM issued a supplemental environmental impact statement in February 2015 and a record of decision in March. In the challenge to this round of decision-making, the parties are to complete their briefing by October 9, 2015. Native Village of Point Hope v. Jewell, No. 1:08-cv-00004 (D. Alaska joint status report June 1, 2015): added to the “Stop Government Action/NEPA” slide.
Challenge to Louisiana LNG Project Was Withdrawn
On March 16, 2015, Sierra Club and Gulf Restoration Network asked the D.C. Circuit Court of Appeals to dismiss their challenge to Federal Energy Regulatory Commission (FERC) approvals of liquefied natural gas (LNG) facilities in Louisiana. The court granted the request on the same day. Earlier in the year, the D.C. Circuit had denied FERC’s motion for summary affirmance. Sierra Club v. Federal Energy Regulatory Commission, No. 14-1190 (D.C. Cir Mar. 16, 2015): added to the “Stop Government Action/NEPA” slide.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
In the Netherlands, a court issues the first decision by any court in the world ordering state to limit greenhouse gas emissions for reasons other than statutory mandates
A Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued the Dutch government to require it to do more to prevent global climate change. The court in the Hague ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. Applying the “duty of care” rule, the court concluded that the state has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy. The court did not specify how the government should meet the reduction mandate, but offered several suggestions, including emissions trading or tax measures. Urgenda Foundation v. Kingdom of the Netherlands (The Netherlands, District Court of the Hague [2015] HAZA C/09/00456689) – Added to “Human Rights” slide.
A Belgian organization files a similar suit seeking to force the government to reduce greenhouse gas emissions
In a case similar to the Dutch suit by the Urgenda Foundation, Klimaatzaak, an organization of concerned citizens, sued the federal and regional governments of Belgium in April 2015 for contributing to global climate change by failing to reduce greenhouse gas emissions. Klimaatzaak seeks to force the Belgian government to reduce greenhouse gas emissions 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050. The Plaintiffs allege, inter alia, that failure to reduce emissions constitutes a violation of human rights laws. The parties are currently in the process of submitting written statements to the court. After the written submissions are made, the court will hold a hearing, and a decision will be issued 1-3 months later. VZW Klimaatzaak v. Kingdom of Belgium, et al. (Belgium, Court of First Instance, Brussels [2015]) – Added to “GHG Emissions Reduction and Trading/Other” slide.
Donald Trump loses case opposing wind farm near exclusive golf course development
The Aberdeen Offshore Wind Farm Limited (“AOWFL”) applied for permission to build and operate an 11 turbine wind farm off the coast of Aberdeenshire in Scotland. The Minister for Energy, Enterprise and Tourism granted consent to build the wind farm without holding a public inquiry. Trump International Golf Club Scotland Limited and the Trump Organization LLC (collectively, “Trump”), which is developing a golf course and resort 3.5 kilometers from the wind farm, challenged the approval on the grounds that: 1) AOWFL did not hold a license to generate electricity; 2) the Minister was biased in favor of AOWFL; and 3) the consent lacked an enforcement mechanism to ensure that AOWFL complied with design conditions. A lower court denied Trump’s petition, and Trump appealed. The appeals court rejected all of Trump’s arguments, finding that a license was not required at the time of consent, there was no evidence of improper bias on the part of the Minister, and enforceable conditions attached to the Minister’s consent. Trump International Golf Club Scotland Limited and The Trump Organization LLC. The Scottish Ministers (United Kingdom, First Division, Inner House, Court Of Session [2015] CSIH 46) – Added to “Renewable Projects” slide.
