September 2015 Update to the Climate Litigation Chart


Posted on September 10th, 2015 by Jessica Wentz

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 additions to the Climate Case Chart, Update #78 (September 8, 2015)


FEATURED DECISION

Wyoming Federal Court Said Consideration of Coal Leases’ Climate Impacts Was Adequate

The federal district court for the District of Wyoming upheld federal approvals for two large coal leases in the Powder River Basin in Wyoming. The court’s decision in three consolidated cases rejected a number of claims by environmental groups, including that the review under the National Environmental Policy Act (NEPA) had not given sufficient consideration to the leases’ impact on climate change. Citing the “very deferential” stance it was required to take, the court said the disclosure of the effects of greenhouse emissions was adequate, but suggested that “today the analysis likely could have been better given the development and acquisition of new knowledge and continuing scientific study.” The court noted that the agencies had not ignored the effects of coal combustion, but that uncertainty regarding such effects was created by the fact that the coal would enter the free marketplace rather than go to a particular power plant. The court also rejected claims under the Federal Land Policy Management Act, the National Forest Management Act, the Surface Mining Control and Reclamation Act, and the Mineral Leasing Act. The court did, however, reject an intervenor’s argument that the petitioners did not have standing to make claims that the agencies had failed to adequately consider climate change or greenhouse gas emissions. WildEarth Guardians v. United States Forest Service, No. 12-cv-00085; WildEarth Guardians v. United States Bureau of Land Management, No. 2:13-cv-00042; Powder River Basin Resource Council v. United States Bureau of Land Management, No. 13-cv-90 (D. Wyo. opinion and order affirming agency actions Aug. 17, 2015): added to the “Stop Government Action/NEPA” slide.

DECISIONS AND SETTLEMENTS

Ninth Circuit Revived Environmental Groups’ Challenge to Oil and Gas Leases in Montana

The Ninth Circuit Court of Appeals reversed a district court’s dismissal on standing grounds of environmental groups’ lawsuit challenging federal approvals for oil and gas leasing on federal lands in Montana. The Ninth Circuit’s unpublished decision said that the Montana district court had erred when it failed to consider surface harms caused by the development of the leases and instead focused only on climate change-related effects, which the district court said did not create a concrete and redressable injury. The Ninth Circuit remanded to the district court with instructions to determine which lease sales would harm the areas of land enjoyed by the environmental groups’ members. The Ninth Circuit directed that this determination “should include consideration of any actual injury stemming from surface harms fairly traceable to the challenged action.” Montana Environmental Information Center v. United States Bureau of Land Management, No. 13-35688 (9th Cir. Aug. 31, 2015): added to the “Stop Government Action/NEPA” slide.

Tenth Circuit Denied Oklahoma’s Request for Preliminary Injunction for Clean Power Plan

The Tenth Circuit Court of Appeals denied Oklahoma’s request for an injunction pending the state’s appeal of a district court’s dismissal of its challenge to the United States Environmental Protection Agency’s (EPA’s) Clean Power Plan. Oklahoma filed its lawsuit in the Northern District of Oklahoma before EPA finalized its rule regulating carbon dioxide emissions from existing power plants but after the D.C. Circuit Court of Appeals dismissed other lawsuits that challenged the proposed plan. The district court dismissed Oklahoma’s lawsuit less than three weeks after it was filed, noting that there was no exception to the requirement for final agency action and that exclusive jurisdiction for review would lie with the D.C. Circuit. Oklahoma v. McCarthy, No. 15-5066 (10th Cir. Aug. 24, 2015): added to the “Challenges to Federal Action” slide.

Ninth Circuit Denied Stay of Shell’s Arctic Offshore Oil Exploration Plan, But Put Case on Expedited Schedule

The Ninth Circuit Court of Appeals declined to stay the Bureau of Ocean Energy Management’s approval of Shell’s offshore oil exploration plan for the Chukchi Sea off the coast of Alaska while a challenge to the approval is pending. The denial of the injunction was without prejudice to renewal before a merits panel. The Ninth Circuit also sua sponte expedited the appeal. The plaintiffs’ claims focus on the plan’s impact on wildlife and cites the “dramatic negative” effects of climate change on the Chukchi Sea habitat. Alaska Wilderness League v. Jewell, No. 15-35559 (9th Cir. Aug. 10, 2015): added to the “Stop Government Action/NEPA” slide.

D.C. Circuit Rejected Request to Rehear Case on Greenhouse Gas Regulations for Stationary Sources

The D.C. Circuit Court of Appeals issued two orders denying—without comment—a rehearing or rehearing en banc of its judgment remanding but not vacating portions of EPA’s permitting regulations for greenhouse gas emissions from stationary sources. In the petition for rehearing, the petitioners had argued that the D.C. Circuit should have vacated EPA’s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. Coalition for Responsible Regulation v. EPA, Nos. 09-1322 et al.; Coalition for Responsible Regulation v. EPA, Nos. 10-1073 et al.; Coalition for Responsible Regulation v. EPA, Nos. 10-1092 et al.; American Chemistry Council v. EPA, Nos. 10-1167 et al. (D.C. Cir., orders denying rehearing & rehearing en banc denied Aug. 7, 2015): added to the “Challenges to Federal Action” slide.

D.C. Circuit Declined to Rehear Challenge to Fuel Standards

The D.C. Circuit Court of Appeals denied rehearing en banc to petitioners who unsuccessfully challenged greenhouse gas and fuel economy standards issued in 2010 and 2011 for new cars and trucks. The D.C. Circuit dismissed the challenges in April 2015 without reaching the merits. The petitioners who sought rehearing en banc argued that the dismissal of their claims on standing grounds was not consistent with Supreme Court precedent. 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 rehearing en banc denied Aug. 3, 2015): added to the “Challenges to Federal Action” slide.

Effort to Compel New Review of Federal Coal Leasing Program to Consider Climate Change and Other Impacts Does Not Survive Motion to Dismiss

The federal district court for the District of Columbia dismissed an action in which two environmental organizations asked the court to require the federal government to update the environmental review for the federal coal management program. The United States Bureau of Land Management (BLM) prepared a programmatic environmental impact statement for the program in 1979. In their complaint, the organizations cited new information about greenhouse gas emissions associated with the program and the program’s contribution to climate change, as well as new information about climate change’s effects, including information developed by the Interagency Working Group on the Social Cost of Carbon. The court determined that it had no authority to compel BLM to supplement its 1979 review because there was no ongoing major federal action that could trigger supplemental review. The court said any coal leasing decisions “are made pursuant to a pre-approved and EIS-supported program.” Western Organization of Resource Councils v. Jewell, No. 14-cv-1993 (D.D.C. Aug. 27, 2015): added to the “Stop Government Action/NEPA” slide.

Federal Court Put Most Claims Against California’s Low Carbon Fuel Standard to Rest

The federal district court for the Eastern District of California issued a ruling that narrowed to one the claims that survive against California’s Low Carbon Fuel Standard (LCFS) following the Ninth Circuit’s 2013 decision that reversed the district court’s earlier determination that the LCFS violated the dormant Commerce Clause. Finding that the Ninth Circuit’s mandate was “explicit and unambiguous,” the district court granted summary judgment to the defendants on the claim that the original LCFS that went into effect in 2011 was an impermissible extraterritorial regulation. The court further applied the law of the case doctrine to dismiss plaintiffs’ extraterritoriality claim regarding the LCFS as amended in 2012. The court noted that the basis for the extraterritoriality challenge to the amended LCFS was the same as for the unsuccessful challenge to the original LCFS—namely, that the use of a life-cycle analysis to determine a fuel’s carbon intensity regulated activities occurring wholly outside California. The court also determined that the plaintiffs could not state a claim that the amended LCFS for crude oil discriminated in purpose and effect. The court found no precedent to support a dormant Commerce Clause claim where a challenged law—like the amended LCFS crude oil provisions—burdened and benefitted in-state and out-of-state interests alike. The district court allowed plaintiffs to proceed with their claim that the original LCFS’s ethanol provisions discriminated against interstate and foreign commerce in purpose and effect. The court agreed with plaintiffs that they had not abandoned or disavowed this claim. The court dismissed claims against Governor Jerry Brown on immunity grounds, but granted plaintiffs leave to amend. American Fuels & Petrochemical Manufacturers Association v. Corey, Nos. 1:09-cv-2234, 1:10-cv-163 (E.D. Cal. Aug. 13, 2015): added to the “Challenges to State Action” slide.

South Carolina Supreme Court Found That Floodway Restrictions on Development Were Not a Regulatory Taking

The South Carolina Supreme Court affirmed the dismissal of a developer’s unconstitutional taking claims against a county that essentially prohibited construction in floodways. The county’s restrictions were more stringent than the minimum restrictions required by the Federal Emergency Management Agency (FEMA). A former county planning director said the county standards were more forward-looking than federal flood maps, which he said were retrospective and did not “project the potential of increased flooding in the future from urbanization or from the possibility of more intense storms due to climate change.” The court concluded that no regulatory taking occurred based on the developer’s lack of reasonable investment-backed expectations and the legitimate and substantial health and safety-related bases for the county’s restrictions. These factors outweighed the developer’s economic injury. The court noted that at the time the developer purchased the land it knew FEMA’s preliminary flood map designated almost all of the property as lying within the regulatory floodway and also knew that the county’s stormwater ordinance could be interpreted to preclude commercial development and that the ability to develop was dependent on “a host of factors” not fully explored by or under the control of the developer. Columbia Venture, LLC v. Richland County, No. 2013-001067 (S.C. Aug. 12, 2015): added to the “Adaptation” slide.

California State Court Rejected Challenges to Greenhouse Gas Emissions Analysis for San Diego County Water Authority Master Plan Update

A California Superior Court upheld the San Diego County Water Authority’s (SDCWA’s) approval of an update to a regional master plan for water development and conservation. The petitioner, San Diego Coastkeeper, had also challenged the SDCWA’s Climate Action Plan and its supplemental program environmental impact report. The court said that “substantial evidence” supported the SDCWA’s actions, including its decision not to include greenhouse emissions from upstream water vendors. The court also upheld the SDCWA’s determination not to include an emissions analysis for a potential desalination plant, which was “just one of a list of possible long-term options.” The court also rejected claims that the SDCWA had incorrectly calculated baseline emissions and that the SDCWA had not adequately mitigated emissions. San Diego Coastkeeper v. San Diego County Water Authority, No. 37-2014-00013216-CU-JR-CTL (Cal. Super. Ct. July 30, 2015): added to the “State NEPAs” slide.

Washington State Court Upheld Port of Seattle Lease for Shell Arctic Drilling Homeport

A Washington State Superior Court rejected a challenge to the use of a Port of Seattle terminal as a homeport for the Royal Dutch Shell Arctic drilling fleet. Four environmental groups had charged that the Port of Seattle illegally circumvented the environmental review requirements of the State Environmental Policy Act when it entered into a lease with the operator for the homeport. The court said that the Port acted within its jurisdiction and that its actions were not arbitrary and capricious. The environmental groups have appealed the court’s order. Puget Soundkeeper Alliance v. Port of Seattle, No. 15-2-05143-1 (Wash. Super. Ct. notice of appeal Aug. 27, 2015; order July 31, 2015): added to the “State NEPAs” slide.

Challenge to Connecticut Plan to Expand Natural Gas Pipeline Capacity Dismissed

A Connecticut Superior Court dismissed a lawsuit challenging the state’s Comprehensive Energy Strategy (CES), which the Department of Energy and Environmental Protection (DEEP) issued in February 2013 and which provided for a large-scale expansion of the state’s natural gas pipeline capacity. A trade association of energy marketers involved in sales of gasoline and heating fuel said the CES required preparation of an environmental impact evaluation (EIE) under the Connecticut Environmental Policy Act (CEPA). The trade group said that the environmental review should have considered methane leakage that would occur as a result of the CES’s implementation. The group noted that such leaks “comprise a significant source of [greenhouse gases] that should have been quantified and mitigated by DEEP as part of an EIE to ensure that the Plan is consistent with Connecticut’s climate change mandates.” The court dismissed the action on sovereign immunity grounds after finding that the group had failed to state a claim under CEPA. The court said that the state agencies (DEEP and the Public Utilities Regulatory Authority) had simply followed legislative duties imposed on them, and that the agencies could not ignore the legislature’s prescriptions. The CES therefore was not subject to the requirement for an EIE. As a result, the state’s sovereign immunity was intact, and the court did not have subject matter jurisdiction over the action. The trade association appealed the decision. Connecticut Energy Marketers Association v. Connecticut Department of Energy & Environmental Protection, No. HHD-CV-14-6054538-S (Conn. Super. Ct. dismissed July 2, 2015; appeal filed July 20, 2015): added to the “State NEPAs” slide.

Attorney Fees Denied in CEQA Case Involving Abandoned Shopping Center Project

In an unpublished opinion, the California Court of Appeal affirmed denial of attorney fees to a group that challenged the City of Yucaipa’s approvals for a shopping center. The group had contended that the City failed to fulfill California Environmental Quality Act (CEQA) obligations, including by failing to consider greenhouse gas impacts. The trial court dismissed the group’s challenge, and the group’s appeal was dismissed as moot after the shopping center’s developer abandoned the project and the City revoked its approvals. The group argued that it was entitled to attorney fees because its lawsuit was a catalyst for the City’s revocation of the approvals. The Court of Appeal said that evidence indicated the approvals were rescinded because the developer abandoned the project, not because the environmental review violated CEQA. The Court of Appeal also agreed with the trial court that the group was not a prevailing party. Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, No. E057589 (Cal. Ct. App. June 8, 2015): added to the “State NEPAs” slide.

Developer of Mississippi Clean Coal Project Got Authorization for Temporary Rate Increase

The Mississippi Public Service Commission authorized a temporary emergency rate increase by Mississippi Power Company (MPC), the developer and operator of the Kemper Project, a power plant at which MPC expects lignite gasification and the capture of carbon dioxide for enhanced oil recovery will be fully operational in the first half of 2016. The Commission said MPC was “in or nearing financial crisis,” noting that MPC has operated the Kemper combined cycle units on natural gas for a year without permanent cost recovery. Earlier in 2015, the Mississippi Supreme Court ordered a refund of charges collected under a previous order related to cost recovery for the Kemper plant. In re Mississippi Power Co., No. 2015-UN-80 (Miss. Pub. Serv. Comm’n Aug. 11, 2015): added to the “Challenges to Coal-Fired Power Plants” slide.

 
NEW CASES, MOTIONS, AND NOTICES

Youth Plaintiffs Asserted Constitutional Claims Against Federal Government for Failure to Reduce Carbon Dioxide Emissions

Twenty-one individual plaintiffs, all age 19 or younger, filed a lawsuit in the federal district court for the District of Oregon against the United States, the president, and various federal officials and agencies. The individuals were joined by the non-profit organization Earth Guardian and a plaintiff identified as “Future Generations,” which is represented by Dr. James Hansen, a climate scientist and former director of the NASA Goddard Institute for Space Studies, who also submitted a declaration in support of the complaint. The plaintiffs asked the court to compel the defendants to take action to reduce carbon dioxide emissions so that atmospheric CO2 concentrations will be no greater than 350 parts per million by 2100. The plaintiffs alleged that the “nation’s climate system” was critical to their rights to life, liberty, and property, and that the defendants had violated their substantive due process rights by allowing fossil fuel production, consumption, and combustion at “dangerous levels.” The plaintiffs also asserted an equal protection claim based on the government’s denial to them of fundamental rights afforded to prior and present generations. They also asserted violations of rights secured by the Ninth Amendment, which the plaintiffs said protects “the right to be sustained by our country’s vital natural systems, including our climate system.” The plaintiffs also alleged that defendants failed to fulfill their obligations under the public trust doctrine. Juliana v. United States, No. 6:15-cv-01517 (D. Or., filed Aug. 12, 2015): added to the “Force Government to Act” slide.

Class Action Complaints Alleged That Arch Coal, Peabody Energy Breached Fiduciary Duties for Employees’ Pension Plans

Participants in the employee pension plans of Arch Coal, Inc. (Arch) and Peabody Energy Corporation (Peabody) filed similar class action complaints against their respective companies alleging breaches of fiduciary duty pursuant to the Employee Retirement Income Security Act (ERISA). The plaintiffs asserted that the defendants retained Arch and Peabody stock as investment options in their respective plans when a reasonable fiduciary would have done otherwise. The complaints alleged that defendants should have known that the pension plans’ investments in Arch and Peabody stock were imprudent because of the “sea-change” in the coal industry. Causes of this “sea-change” cited in the complaints included the regulation of carbon dioxide emissions from power plants. Lynn v. Peabody Energy Corp., No. 4:15-cv-00919 (E.D. Mo., filed June 11, 2015); Roe v. Arch Coal, Inc., No. 4:15-cv-00910 (E.D. Mo., filed June 9, 2015): added to the “Regulate Private Conduct” slide.

Office of Surface Mining Withdrew Appeal of District Court Decision That Vacated Permit to Expand Navajo Mine

The U.S. Office of Surface Mining Reclamation and Enforcement (OSM) voluntarily dismissed its appeal of a district court decision that vacated OSM’s approval of a permit revision authorizing expansion of the Navajo Mine in New Mexico. The federal district court for the District of New Mexico also vacated the environmental assessment and finding of no significant impact (EA/FONSI) that OSM had prepared for the expansion. The district court said the environmental review should have considered the mine’s indirect effects, in particular the impacts of mercury deposition from the power plant for which the mine was the sole source of coal. An appeal by the mine’s operator, Navajo Transitional Energy Company, LLC, is still pending in the Tenth Circuit Court of Appeals. The appellees have asked the Tenth Circuit to dismiss the appeal as premature. Diné Citizens Against Ruining Our Environment v. United States Office of Surface Mining Reclamation and Enforcement, No. 15-1191 (10th Cir. motion for voluntary dismissal Aug. 18, 2015); Diné Citizens Against Ruining Our Environment v. United States Office of Surface Mining Reclamation and Enforcement, No. 15-1126 (10th Cir. motion to dismiss Aug. 20, 2015): added to the “Stop Government Action/NEPA” slide.

States, Coal Company Sought to Stay Clean Power Plan

After EPA released the final Clean Power Plan rule regulating carbon dioxide emissions from existing power plants, 15 states filed an emergency petition for extraordinary writ in the D.C. Circuit. South Carolina intervened on behalf of the states, while a number of environmental organizations have intervened in support of EPA. The 16 states, as well as New Jersey and the National Mining Association, also submitted requests to EPA for an administrative stay of the rule. In the D.C. Circuit, the states argued that a stay is warranted even before formal publication of the rule because EPA had established deadlines for submission of state plans starting in September 2016 that will apply regardless of when the rule is published, and that the states are therefore compelled to continue working to meet those hard deadlines. They argue that the Clean Power Plan is illegal because the Clean Air Act prohibits EPA from regulating source categories under Section 111 where it has regulated them under Section 112 and because the Clean Power Plan exceeds EPA’s regulatory authority. The D.C. Circuit has declined to consolidate the petitions challenging the final rule with In re Murray Energy Corp., the challenge to the proposed Clean Power Plan dismissed by the D.C. Circuit in June 2015 because there was no final agency action. The coal company Peabody Energy Corporation filed an emergency renewed petition for extraordinary writ in In re Murray Energy Corp., which the D.C. Circuit instead opened as a new case and consolidated with the states’ proceeding. In September, EPA submitted its opposition to the petitions for extraordinary writ. The agency indicated that it expects to publish the final rule in the Federal Register by the end of October. EPA argued that straying from the Clean Air Act’s timeframe for judicial review is not warranted, that petitioners will not suffer irreparable harm, and that the statutory issues raised by the petitioners are disputable. In re West Virginia, No. 15-1277 (D.C. Cir., filed Aug. 13, 2015, consolidated with No. 15-1284 Aug. 24, 2015): added to the “Challenges to Federal Action” slide.

Pro Se Petition Challenged EPA Determination on Hazardous Air Pollutant Standards, Drew Connection to Aircraft Greenhouse Gas Endangerment Finding

Two individuals filed a pro se petition in the D.C. Circuit Court of Appeals for review of EPA’s determination that it had completed the Clean Air Act’s requirement that it promulgate emissions standards for source categories accounting for at least 90% of aggregated emissions of seven hazardous air pollutants. The petition asserted that the determination was “intricately-intertwined” with EPA’s proposed endangerment finding for greenhouse gases from aircraft. Lewis v. McCarthy, No. 15-1254 (D.C. Cir., filed Aug. 3, 2015): added to “Force Government to Act/Clean Air Act” slide.

Plaintiffs Seek Attorney Fees from Corps of Engineers in Alaska Fill Permit Case

Plaintiffs who challenged issuance of a fill permit for a drill site in the National Petroleum Reserve in Alaska filed a petition for costs and fees under the federal Equal Access to Justice Act (EAJA). The federal district court for the District of Alaska upheld the permit in 2015, but only after it first remanded the proceeding to the United States Army Corps of Engineers (Corps) in 2014 for a reasoned explanation for the Corps’ decision not to conduct a supplemental environmental analysis. The supplemental analysis subsequently conducted by the Corps included a discussion of whether new information about climate change warranted preparation of a supplemental environmental impact statement and concluded that it did not. In their fees petition, the plaintiffs contended that they were prevailing parties for purposes of EAJA because the court was only satisfied that the Corps had satisfied its NEPA obligations after the Corps completed the supplemental analysis required by the court. Kunaknana v. United States Army Corps of Engineers, No. 3:13-cv-00044 (D. Alaska, petition for fees Aug. 27, 2015): added to the “Stop Government Action/NEPA” slide.

NEPA Challenge Filed to Contest Expansion of Montana Underground Coal Mine

Three environmental groups filed a lawsuit in the federal district court for the District of Montana challenging federal approvals for a mining plan modification for the Bull Mountains Mine No. 1 in central Montana. The plaintiffs contended that the modification would permit the mine’s expansion by 7,000 acres and allow production of up to 15 million tons of coal annually, making the mine the largest domestic source by annual production of underground coal. The plaintiffs alleged that the mining, transportation, and combustion of coal from the mine would have annual greenhouse gas emissions greater than any single point source in the U.S. They contended that the federal defendants failed to comply with NEPA by, among other things, failing to take a hard look at indirect and cumulative effects of coal transportation, coal exports, and coal combustion, and failing to consider foreseeable greenhouse gas emission impacts. Montana Elders for a Livable Tomorrow v. U.S. Office of Surface Mining, No. 9:15-cv-00106 (D. Mont., filed Aug. 17, 2015): added to the “Stop Government Action/NEPA” slide.

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