AUGUST 2015 UPDATE TO CLIMATE LITIGATION CHARTS


Posted on August 5th, 2015 by Jennifer Klein

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 #77 (August 3, 2015)

FEATURED DECISION

Tenth Circuit Affirmed Colorado’s Renewable Energy Mandate
The Tenth Circuit Court of Appeals ruled that Colorado’s renewable energy mandate did not violate the dormant Commerce Clause. The decision affirmed a ruling of the federal district court for the District of Colorado in a lawsuit brought by the Energy and Environment Legal Institute (EELI), whose members include a fossil fuel producer. EELI appealed only one aspect of the district court’s decision—that the mandate did not impermissibly control extraterritorial conduct. The Tenth Circuit said that although fossil fuel producers will be hurt by the mandate, EELI “offers no story suggesting how Colorado’s mandate disproportionately harms out-of-state businesses,” and “it’s far from clear how the mandate might hurt out-of-state consumers either.” The Tenth Circuit concluded that this case did not fall within the narrow scope of the Supreme Court’s extraterritoriality precedent, which was applied only to price control or price affirmation regulation. The Tenth Circuit said that EELI’s reading risked “serious problems of overinclusion.” Energy & Environment Legal Institute v. Epel, No. 14-1216 (10th Cir. July 13, 2015): added to the “Challenges to State Action” slide.

DECISIONS AND SETTLEMENTS

D.C. Circuit Declined to Rehear Case in Which It Struck Down Deferral of Regulation of Biogenic Carbon Dioxide
The D.C. Circuit Court of Appeals denied a petition by industry groups for rehearing of its 2013 decision rejecting the United States Environmental Protection Agency’s (EPA’s) deferral of regulation of carbon dioxide from biogenic sources. The industry groups included the American Forest & Paper Association, the Utility Air Regulatory Group, and the Renewable Fuels Association. The D.C. Circuit denied their request without comment. The industry groups had argued that the decision needed to be reconsidered in light of the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA. Center for Biological Diversity v. EPA, No. 11-1101, 11-1285, 11-1328, 11-1336 (D.C. Cir. July 24, 2015): added to the “Force Government to Act/Clean Air Act” slide.

Seventh Circuit Affirmed Chicago Area Combined Sewer Overflows Consent Decree
The Seventh Circuit Court of Appeals affirmed a district court’s approval of a consent decree between the United States and Illinois and the Metropolitan Water Reclamation District of Greater Chicago (District) pursuant to which the District agreed to complete a project known as the “Deep Tunnel,” among other obligations. The Deep Tunnel is a project begun by the District in the 1970s to impound water from the Chicago area’s combined stormwater and sewer system so that the water can be cleaned up and then released. Environmental groups intervened and argued unsuccessfully before both the district court and the Seventh Circuit that the consent decree was inadequate. One argument made by the intervenors before the district court was that reliance on a 2006 precipitation study to determine that the Deep Tunnel’s capacity would be adequate was inconsistent with EPA’s National Water Program 2012 Strategy: Response to Climate Change. The groups argued that EPA should have studied several years of data, more intense storms, and rapidly recurring storms. The district court rejected this and other arguments in its January 2014 decision. The Seventh Circuit agreed with the district court that consent decree was reasonable “in light of the current infrastructure, the costs of doing things differently …, and the limits of knowledge about what will happen when the system is complete.” United States v. Metropolitan Water Reclamation District of Greater Chicago, Nos. 14-1776, 14-1777 (7th Cir. July 9, 2015): added to the “Adaptation” slide.

Fourth Circuit Denied EPA Request to Require West Virginia District Court to Disallow Discovery in Clean Air Act Jobs Study Case
In a one-sentence judgment, the Fourth Circuit Court of Appeals denied EPA’s petition for a writ of mandamus in a lawsuit brought by coal companies seeking to compel EPA to conduct a study of the effects of the Clean Air Act’s administration and enforcement on employment. EPA had asked the Fourth Circuit to require the federal district court for the Northern District of West Virginia to vacate a discovery order issued in May 2015. EPA had argued to the Fourth Circuit that discovery was unnecessary in this “nondiscretionary duty” case, given EPA’s “willingness to win or lose on the documents” already submitted to the district court. The district court has set a deadline for completion of discovery in February 2016 and a trial date in April 2016. In re McCarthy, No. 15-1639 (4th Cir. July 9, 2015): added to the “Challenges to Federal Action” slide.

Alaska Federal Court Ordered Greenpeace to Pay Hourly Penalties While Activists Remained Suspended from Portland Bridge
On July 30, 2015, the federal district court for the District of Alaska found Greenpeace, Inc. (Greenpeace) to be in contempt of its May 2015 order granting a preliminary injunction to Shell Offshore, Inc. The preliminary injunction barred Greenpeace from tortiously or illegally interfering with the movement of certain vessels that Shell is using for its Arctic drilling and exploration efforts this summer. Beginning the morning of July 29, 13 Greenpeace activists dangled from the St. John’s Bridge in Portland, Oregon, preventing the vessel Fennica, an icebreaker, from traveling from the dry dock location where it was being repaired down the Willamette River. In its July 30 order, the court imposed penalties of $2,500 for each hour that the activists remained suspended. The hourly penalties would have increased to $5,000 and then $10,000 per hour had the protest continued until July 31 and August 1, but by the afternoon of July 30, four of the suspended protesters had been removed, and the Fennica traveled under the bridge. The remainder of the protesters came down later that evening. Shell Offshore, Inc. v. Greenpeace, Inc., No. 3:15-cv-00054 (D. Alaska July 30, 2015): added to the “Climate Change Protesters and Scientists” slide.

Utah Federal Court Allowed NEPA Claims Regarding 16 Gas Wells in Uinta Basin to Proceed
The federal district court for the District of Utah ruled that three environmental groups had standing to challenge a Decision Record and Finding of No Significant Impact (DR/FONSI) for a plan by Gasco Energy, Inc. (Gasco) to drill 16 gas wells in the Uinta Basin. The court also concluded, however, that the groups could not challenge the environmental assessment (EA) for the 16-well project or an environmental impact statement (EIS) and record of decision (ROD) for Gasco’s overarching development proposal for more than 200,000 acres in the Uinta Basin, which would allow Gasco to drill up to 1,298 new gas wells. The court said the EA and EIS were not final agency actions, and that the ROD did not inflict an injury-in-fact since additional analysis under the National Environmental Policy Act (NEPA) was required before Gasco could drill wells. The court dismissed the groups’ claims under the Federal Land Policy and Management Act relating to the 16-well project without prejudice. The court rejected Gasco’s contention that the groups had not alleged injury-in-fact and causation with respect to their NEPA claims relating to the DR/FONSI for the 16-well project. The court said the groups had alleged causation with assertions that the EA inadequately analyzed environmental impacts and ignored the social cost of greenhouse gas emissions. Southern Utah Wilderness Alliance v. United States Department of the Interior, No. 13-cv-01060 (D. Utah July 17, 2015): added to the “Stop Government Action/NEPA” slide.

Court Upheld BLM Approval of Mojave Desert Solar Energy Facility
The federal district court for the Central District of California granted summary judgment to the United States Department of the Interior, the United States Bureau of Land Management (BLM), and other federal defendants in a lawsuit challenging approval of a solar energy facility on approximately 4,000 acres in the Mojave Desert. The court incorporated excerpts from its June 2015 decision denying a request for a preliminary injunction, including its conclusion that  BLM had satisfied the NEPA requirement that it provide a statement of purpose and need. The court noted that one means by which BLM had fulfilled this obligation was by citing and incorporating by reference directives and policies, including President Obama’s Climate Action Plan, which set a goal of approving 20,000 megawatt of renewable energy projects on public lands by 2020. Colorado River Indian Tribes v. Department of Interior, No. 14-cv-2504 (C.D. Cal. July 16, 2015): added to the “Stop Government Action/NEPA” slide.

District Court Quickly Dismissed Oklahoma’s Challenge to Clean Power Plan
The federal district court for the District of Oklahoma dismissed the State of Oklahoma’s challenge to EPA’s proposed regulations, known as the Clean Power Plan, to regulate carbon dioxide emissions from existing power plants. The lawsuit was filed on July 1, 2015, and one day later the court issued an order asking the parties to provide briefing on the issue of whether the court had jurisdiction to hear a challenge to a proposed rule and whether the judicial review provision of the Clean Air Act precluded the court from exercising jurisdiction. The court noted in the order that the D.C. Circuit Court of Appeals had recently dismissed a challenge to the Clean Power Plan “based on the clearly-established jurisdictional principle that a proposed rule by a governmental agency is not a final agency action subject to judicial review.” On July 17, 2015, after Oklahoma submitted its initial brief, the court dismissed this action, finding that further briefing was unnecessary. The court said that Oklahoma had not established that the exception to the finality requirement applied, or that the court would be the proper jurisdiction even if judicial review were not premature, given that the Clean Air Act vests exclusive jurisdiction in the D.C. Circuit for such challenges. Oklahoma has appealed the dismissal in the Tenth Circuit Court of Appeals. Oklahoma ex rel. Pruitt v. EPA, No. 15-CV-0369 (N.D. Okla. notice of appeal July 21, 2015; opinion & order July 17, 2015; order July 2, 2015): added to the “Challenges to Federal Action” slide.

Proposed Settlement Would Require Retirement or Refueling of Five Coal-Fired Power Plants in Iowa
The federal government lodged a proposed consent decree in the federal district court for the Northern District of Iowa that would resolve allegations that Interstate Power and Light Company (Interstate), which owns and operates seven active coal-fired power plants in Iowa, violated Prevention of Significant Deterioration and Title V permitting requirements as well as Iowa’s state implementation plan. The State of Iowa, Linn County, and Sierra Club are also parties to the consent decree. Under the agreement, Interstate would permanently retire coal-fired units at five power plants or convert them to natural gas and would also install pollution controls at two plants. In addition, Interstate would pay a $1.1 million civil penalty to be split among the United States, Iowa, and Linn County, and spend $6 million on environmental mitigation projects. Interstate may choose from five potential mitigation projects. The consent decree would not resolve future claims by the United States or Sierra Club based on modifications that increase greenhouse gas emissions. United States v. Interstate Power and Light Co., No. 15-cv-0061 (N.D. Iowa complaint and proposed consent decree filed July 15, 2015): added to the “Challenges to Coal-Fired Power Plants” slide.

Illinois Appellate Court Affirmed NPDES Permit for Coal-Fired Power Plant
The Illinois Appellate Court affirmed the issuance of a national pollution discharge elimination system (NPDES) permit to Dynegy Midwest Generation, Inc. (Dynegy) for its Havana Power Station in Mason County, Illinois. The Havana Power Station is an oil- and coal-fired, six-unit steam-electric generating facility. The court found that the Pollution Control Board (Board) had not erred in finding that the Illinois Environmental Protection Agency (IEPA) was not required to adopt technology-based effluent limits (TBELs) on a case-by-case basis, and also found that the Board had properly deferred to IEPA’s determination of whether petitioners’ TBEL comments were significant and warranted a response. Natural Resources Defense Council v. Pollution Control Board, No. 4-14-0644 (Ill. App. Ct. July 22, 2015): added to the “Challenges to Coal-Fired Power Plants” slide.

FERC Rejected Claims of Inadequate Greenhouse Gas Emissions Analysis and Denied Rehearing of LNG Facility Authorization
The Federal Energy Regulatory Commission (FERC) denied rehearing of its authorization of facilities in Cameron Parish, Louisiana, for the liquefaction and export of domestically-produced natural gas. FERC rejected contentions by Sierra Club that its approvals violated NEPA by failing to consider impacts—including increased greenhouse gas emissions—from induced upstream gas production and from downstream end-use, and also from increased coal use due to natural gas price increases. FERC said that induced production was not an indirect effect of the project that it was required to consider and that there was not a “sufficient causal link” between its approval of the liquefied natural gas (LNG) facilities and impacts related to ultimate consumption. FERC also said that a potential increase in natural gas prices and an accompanying increase in coal consumption were also outside the scope of its NEPA review. Sierra Club also argued unsuccessfully that FERC had failed to consider cumulative impacts in connection with other pending and approved LNG projects and had failed to use accepted methods for evaluating greenhouse gas emissions impacts, such as the social cost of carbon and consistency with federal, state, or local emissions reduction targets. FERC found that the social cost of carbon was not appropriate for determining a specific project’s impacts and said that the determination of whether the project’s estimated greenhouse gas emissions would be consistent with applicable targets would fall to Louisiana when it determined whether to issue air permits. In re Sabine Pass Liquefaction Expansion, LLC, Nos. CP13-552, 13-553 (FERC June 23, 2015): added to the “Stop Government Action/NEPA” slide.

NEW CASES, MOTIONS, AND NOTICES

States Asked D.C. Circuit for Rehearing of Clean Power Plan Challenge
States who unsuccessfully challenged EPA’s proposed Clean Power Plan in the D.C. Circuit filed a petition for rehearing or rehearing en banc. The D.C. Circuit ruled in June that it did not have jurisdiction to review a non-final agency action. The states said rehearing was necessary to prevent EPA from evading accountability. The states indicated EPA could do so by requiring regulated parties “to make immediate expenditures to comply with an unlawful but not-yet-final rule.” Alternatively, the states asked the court for a stay of the mandate so that the panel could vacate its decision as “academic,” consistent with Judge Henderson’s concurrence in which she said she believed the court could exercise jurisdiction but that the arguments were “all but academic,” given that EPA would soon issue its final rule. The states opined that when EPA does publish the final rule, “the panel could vacate its decision and leave for another time the delineation of this Court’s authority to stop extreme agency misconduct during a rulemaking.” In re Murray Energy Corp., No. 14-1112; Murray Energy Corp. v. EPA, Nos. 14-1151, 14-1146 (D.C. Cir. petition for rehearing or rehearing en banc July 22, 2015): added to the “Challenges to Federal Action” slide.

City of Long Beach Commenced CEQA Challenge to Interstate Widening Project
The City of Long Beach filed a lawsuit in California Superior Court challenging the California Department of Transportation’s (Caltrans’s) compliance with the California Environmental Quality Act (CEQA) in its “secret approval” of a project to widen an approximately 16-mile-long corridor of Interstate 405. The Orange County Transportation Authority was also named as a respondent in the lawsuit. Among the alleged inadequacies in the CEQA review was a failure to determine and disclose whether greenhouse gas emissions would be significant. The City of Long Beach contended that Caltrans “shirked its duty” by refusing to make a determination of the significance of the greenhouse gas impacts and calling such a determination “too speculative.” The petition alleged that the project would result in a 39% increase in vehicle miles traveled over baseline conditions for the widened freeway segment. City of Long Beach v. State of California Department of Transportation, No. BS156931 (Cal. Super. Ct., filed July 16, 2015): added to the “State NEPAs” slide.

Second Mine Owner Appealed in Case Involving Inadequate NEPA Review for Coal Mine Plan Modifications
The owner of a coal mine appealed a decision by the federal district court for the District of Colorado that held that the United States Office of Surface Mining Reclamation and Enforcement had violated NEPA when it  approved a mining plan modifications that authorized the mining of additional coal. The court did not vacate the mining plan modification for the mine because it believed all coal extraction authorized by the modification had already occurred. However, the coal mine owner also filed a Notice of Correction of Statement of Law in the district court, stating that the district court’s decision relied on the mine owner’s misunderstanding that the affirmative defense of mootness applied; the mine owner said that it was withdrawing its mootness defense because it had learned after the court’s decision that additional coal was covered by the mining plan modification. The owner of a second coal mine affected by the court’s decision has already appealed, but the Tenth Circuit has questioned the finality of the judgment and whether it has appellate jurisdiction. On July 10, 2015, the Tenth Circuit ordered the coal mine owners to submit briefs addressing the basis for appellate jurisdiction. WildEarth Guardians v. United States Office of Surface Mining Reclamation and Enforcement, No. 1:13-cv-00518 (D. Colo. notice of appeal July 6, 2015; notice of correction July 1, 2015); No. 15-1186 (10th Cir. order July 10, 2015): added to the “Stop Government Action/NEPA” slide.

Environmental Groups Asked Court to Nullify Port of Seattle Lease for Shell’s Arctic Drilling Homeport
Four environmental groups filed a motion for summary judgment in their lawsuit challenging the Port of Seattle’s authority to enter into a lease for operation of a terminal in the Port as the homeport for Royal Dutch Shell’s Arctic drilling fleet. In their motion, the groups asked the Washington Superior Court for a declaration that the Port violated the State Environmental Policy Act by improperly describing the project and invoking a categorical exemption for leases pursuant to which the property’s use will remain “essentially the same.” The groups also asked the court to nullify the lease. Puget Soundkeeper Alliance v. Port of Seattle (Wash. Super. Ct. plaintiffs’ motion for summary judgment July 2, 2015): added to the “State NEPAs” slide.

Here are recent additions to the Non-U.S. Climate Litigation Chart.

In New Zealand, Supreme Court Affirms Denial of Refugee Status to Kiribati Citizen
Ioane Teitiota sought asylum in New Zealand on the basis that the effects of climate change on Kirabati, namely rising ocean levels and environmental degradation, are forcing citizens off the island. The New Zealand High Court and Court of Appeals both found that the impacts of climate change on Kirabati did not qualify the appellant for refugee status. Teitiota appealed to the Supreme Court of New Zealand, which affirmed the lower courts’ rulings, finding that the applicant did not qualify as a refugee under international human rights law. The Court noted, however, that its decision does not rule out the possibility “that environmental degradation resulting from climate change or other natural disasters could [] create a pathway into the Refugee Convention or protected person jurisdiction.” Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment (New Zealand, Supreme Court [2015] NZSC 107—Updated on “Human Rights” slide.

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