January 2016 Update to the Litigation Charts


Posted on January 11th, 2016 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 litigation charts (Update #82).

FEATURED CASE

Fourth Circuit Issued Rationale for Barring Deposition of EPA Administrator

On December 8, 2015, the Fourth Circuit Court of Appeals issued an order setting forth its rationale for granting the United States Environmental Protection Agency’s  (EPA’s) petition for writ of mandamus precluding the deposition of EPA Administrator Gina McCarthy in a case pending in district court in West Virginia. The case, brought by Murray Energy Corporation and its affiliates, alleges that EPA has failed to comply with Section 321(a) of the Clean Air Act, which provides that EPA shall conduct evaluation of job loss and employment shifts that may result from administration and enforcement of the Clean Air Act. The Fourth Circuit was not convinced by the district court’s finding that alleged conflicts between McCarthy’s testimony before Congress and EPA’s representations to the court constituted “extraordinary circumstances” warranting deposition of a high-ranking official. The Fourth Circuit saw no contradiction in EPA’s position that would support the extraordinary circumstance finding and also was not persuaded that there was no alternative to deposing McCarthy. The Fourth Circuit also disagreed with the district court’s finding that EPA’s “apparent refusal” to comply with Section 321(a) was prima facie evidence of wrongdoing. The Fourth Circuit said that there was no clear misconduct. In re McCarthy, No. 15-2390 (4th Cir. corrected opinion Dec. 9, 2015): added to the “Challenges to Federal Action” slide.

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Review Decision Upholding Colorado Renewable Energy Standard

The Supreme Court denied a certiorari petition seeking review of the Tenth Circuit Court of Appeals’ ruling upholding Colorado’s Renewable Energy Standard. The Tenth Circuit ruled in July 2015 that the RES did not violate the dormant Commerce Clause. Energy & Environment Legal Institute v. Epel, No. 15-471 (U.S. Dec. 7, 2015): added to the “Challenges to State Action” slide.

Minnesota Federal Court Dismissed Challenges to Cross-Border Pipeline Projects

The federal district court for the District of Minnesota dismissed an action challenging the State Department’s approvals of the replacement of a segment of an oil pipeline that crossed the U.S.-Canada border and the expansion of the capacity of another cross-border pipeline. The plaintiffs—who alleged they would be affected by the impacts of increased greenhouse gas emissions from the refining and end-use of tar sands crude oil from Canada—contended that the State Department had failed to comply with the National Environmental Policy Act and the National Historic Preservation Act. The court said that the State Department’s actions were not subject to judicial review because they were presidential actions not reviewable under the Administrative Procedure Act. White Earth Nation v. Kerry, No. 14-cv-04726 (D. Minn. Dec. 9, 2015): added to the “Stop Government Action/NEPA” slide.

D.C. Federal Court Dismissed Action Seeking EPA Decision on Making Ammonia a Criteria Pollutant

The federal district court for the District of Columbia concluded that it lacked subject matter jurisdiction over an action that sought to compel EPA to respond to a 2011 petition asking the agency to identify ammonia as a criteria pollutant. The plaintiffs had alleged that ammonia contributes to regional haze, which has been associated with climate impacts. The court ruled that it did not have jurisdiction because the plaintiffs had failed to comply with the notice requirement of the Clean Air Act citizen suit provision and could not use the Administrative Procedure Act to circumvent the notice requirement. Environmental Integrity Project v. EPA, No. 15-cv-139 (D.D.C. Dec. 1, 2015): added to the “Force Government to Act/Clean Air Act” slide.

California Supreme Court Said CEQA Did Not Generally Mandate Analysis of Effects of Existing Environmental Conditions on Proposed Projects

The California Supreme Court ruled that the California Environmental Quality Act (CEQA) does not generally require consideration of the effects of existing environmental conditions on a proposed project’s future users or residents, but that CEQA does mandate analysis of how a project may exacerbate existing environmental hazards. The court said that portions of the CEQA guidelines that required consideration of the impacts of existing conditions were not valid. This decision was made in a case concerning the California Building Industry Association’s challenge of thresholds of significance for air pollutants, including greenhouse gases (though the particular issue before the Supreme Court did not concern the greenhouse gas thresholds). CBIA had argued that the thresholds for toxic air contaminants and fine particulate matter unlawfully required evaluation of the environment’s impacts on a given project, potentially limiting urban infill projects. The California Court of Appeal had said that the receptor thresholds had valid application regardless of whether CEQA required analysis of impacts of existing environmental conditions on project users. The Supreme Court said that the Court of Appeal should address CBIA’s arguments in light of this opinion’s elaboration of CEQA’s requirements with respect to existing conditions. California Building Industry Association v. Bay Area Air Quality Management District, No. S213478 (Cal. Dec. 17, 2015): added to the “State NEPAs” slide.

Oregon Supreme Court Required Changes to Ballot Titles for Initiatives That Would Weaken Low Carbon Fuel Standard Requirements

The Oregon Supreme Court weighed in on the wording of ballot titles for two voter initiatives that would modify requirements for the state’s low carbon fuel standards (LCFS). Oregon voters could see the oil industry-sponsored initiatives on November 2016 ballots. Both measures would, among other provisions, limit application of the LCFS to blended liquid fuels and would eliminate a fuel credit trading program as an alternative means of compliance. Both initiatives would also restrict the LCFS requirements to blending of liquid fuels that are “available in commercial quantities.” The court said that the caption should mention the elimination of the fuel credit trading component. The court also agreed with an LCFS advocate’s view that the use of “commercially available” in the “yes” result statement was misleading because voters would think the LCFS would apply if the alternative fuel was available for purchase in the marketplace, while the initiatives would actually establish a more restrictive definition for commercially available. The court did not require the caption or “yes” result statement to mention one initiative’s creation of an administrative review action to challenge commercial availability determinations, citing the word limits and the complexity of the initiative’s provisions—but did require that the ballot title’s 125-word summary refer to the review action. The court rejected some challenges to the ballot title’s language made by an oil industry lobbyist, concluding that the concerns raised were more relevant to “ultimate efforts to persuade voters” to vote for the initiatives. The court referred the ballot titles to the Oregon Attorney General for modification. Blosser/Romain v. Rosenblum, Nos. S063527, S063531 (Or. Nov. 27, 2015); Blosser/Romain v. Rosenblum, Nos. S063528, S063532 (Or. Nov. 27, 2015): added to the “Challenges to State Action” slide.

California Appellate Court Said Analysis of Wildfire Evacuation Risk for Ski Resort Expansion Project Was Insufficient, But Rejected Claims That Energy Impacts Weren’t Adequately Considered

In an unpublished opinion, the California Court of Appeal largely upheld Placer County’s approval of a plan to expand an existing ski resort at Lake Tahoe, but concluded that the approval was invalid under CEQA because the County failed to analyze wildfire evacuation risk. The court said that the petitioner had failed to establish CEQA violations related to any of the energy-related issues it raised—which included the energy impacts of increased snowmaking, energy conservation, transportation and equipment energy impacts, and renewable energy resources. The court also found that the petitioner had failed to exhaust administrative remedies regarding a claim that the EIR did not contain substantial evidence to support the determination that carbon credits were not feasible mitigation measures. California Clean Energy Committee v. County of Placer, No. C072680 (Cal. Ct. App. Dec. 22, 2015): added to the “State NEPAs” slide.

Maryland Court Upheld Grid Resiliency Charge

The Maryland Court of Special Appeals upheld a grid resiliency charge authorized by the Maryland Public Service Commission. The grid resiliency charge would provide $24 million to accelerate “hardening” projects for 24 “feeders” (low-voltage distribution lines that deliver electricity to end users). Potomac Electric Power Company (Pepco) requested approval for the grid resiliency charge in response to recommendations made by a state task force established to address the potential impact of climate change on regional weather patterns and prolonged power outages brought by extreme weather events. The court said that the issue of whether the Commission exceeded its statutory authority when it approved the grid resiliency charge was not properly before the court because it was not raised before the Commission. The court also concluded that the Commission did not act arbitrarily in approving the charge and that there was substantial evidence that the charge was just and reasonable. Maryland Office of People’s Counsel v. Maryland Public Service Commission, No. 2173 (Md. Ct. Spec. App. Dec. 15, 2015): added to the “Adaptation” slide.

Arizona Appellate Court Said Trial Court Had to Conduct De Novo Review of Board of Regents’ Justification for Withholding Climate Scientist Emails

The Arizona Court of Appeals ruled that a trial court had applied an incorrect standard to its review of a decision by the Arizona Board of Regents to deny requests for records of climate scientists at the University of Arizona. The appellate court said that the Superior Court should have reviewed de novo the Board’s justification for withholding emails addressing “prepublication critical analysis, unpublished data, analysis, research, results, drafts and commentary,” rather than determining whether the Board had abused its discretion or acted arbitrarily or capriciously. The appellate court remanded to the Superior Court, saying that it should weigh the Board’s determination that disclosure would be detrimental to the best interests of the state against the presumption favoring disclosure. The appellate court affirmed the Superior Court’s decision with respect to the Board’s withholding of emails that contained confidential information or attorney work product. Energy & Environment Legal Institute v. Arizona Board of Regents, No. 2 CA-CV 2015-0086 (Ariz. Ct. App. Dec. 3, 2015): added to the “Climate Change Protesters and Scientists” slide.

NEW CASES, MOTIONS, AND NOTICES

Clean Power Plan Challengers Asked D.C. Circuit to Expedite Consideration of EPA Authority

Petitioners challenging EPA’s Clean Power Plan asked the D.C. Circuit to expedite the briefing schedule on “fundamental legal issues” raised by the regulations so that oral argument on these issues would be held by May 2016. The petitioners contended that it was “critical” the Clean Power Plan’s lawfulness be adjudicated as soon as possible, “[g]iven the acute importance of this case to the nation’s energy system and its customers” and the irreparable harm the regulations were causing. The fundamental legal issues for which the petitioners sought speedy adjudication included EPA’s authority to regulate power plants under Section 111(d) when they are already regulated under Section 112, and to use Section 111(d) to “fundamentally restructure the way in which electricity is generated and distributed.” The petitioners asked that “state-specific and programmatic” issues be severed and placed in a separate docket. EPA opposed the petitioners’ plan. Separately, the petitioner Biogenic CO2 Coalition, which filed its petition for review on December 22, asked the D.C. Circuit not to consolidate its petition with the other proceedings challenging the Clean Power Plan, or that the court sever and hold in abeyance the issues raised in its appeal concerning the regulation of “biogenic carbon dioxide emissions” to permit the petitioner to continue ongoing discussions to achieve an administrative resolution of its concerns. Two other organizations also filed petitions for review on December 22 that made similar requests with respect to issues relating to biogenic emissions. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir., motion filed Dec. 8, 2015): added to the “Challenges to Clean Power Plan” slide. [Editor’s Note: The numerous petitions and motions filed with respect to the Clean Power Plan are available on page 15 of the chart.]

Environmental Groups Contested Decision Not to List Coastal Marten as Endangered or Threatened

The Center for Biological Diversity and the Environmental Protection Information Center filed a lawsuit in the federal district court for the Northern District of California challenging the U.S. Fish & Wildlife Service’s determination that listing the coastal marten as endangered or threatened under the Endangered Species Act was not warranted. The plaintiffs contended that the “not warranted” finding was “inexplicable,” arbitrary, capricious, and contrary to the best scientific and commercial data available. They cited a report prepared by FWS biologists that allegedly documented substantial threats to coastal martens in Oregon and northern California, including climate change.Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 3:15-cv-05754 (N.D. Cal., filed Dec. 17, 2015): added to the “Stop Government Act/Other Statutes” slide.

Federal Claims Court to Determine Whether to Certify Opinion Holding U.S. Liable for Post-Katrina Flooding for Interlocutory Appeal

The United States asked the Court of Federal Claims to certify for interlocutory appeal the court’s May 2015 opinion holding the U.S. liable for a temporary taking caused by flooding during Hurricane Katrina and subsequent storms. The United States said that an immediate appeal was appropriate because the opinion presented “controlling” questions of law about which there were substantial grounds for a difference in opinion. The U.S. also said that certification would advance the ultimate termination of the appeal because it could “obviate the need for further proceedings” if the U.S. prevailed or, if the liability opinion were affirmed, might “resolve or clarify disputes … concerning just compensation.” The plaintiffs opposed certification. The court stayed briefing the plaintiffs’ 2010 motion for class certification pending disposition of an appeal of a final judgment in the case. Bernard Parish Government v. United States, No. 1:05-cv-01119 (Fed. Cl., U.S. motion for certification of interlocutory appeal Oct. 30, 2015; plaintiff’s opposition Nov. 16, 2015; U.S. reply brief Nov. 30, 2015): added to the “Adaptation” slide.

Federal Government Asked Oregon Federal Court to Dismiss Young People’s Action to Compel Reductions in Carbon Emissions

The United States moved to dismiss an action brought 21 individuals, all aged 19 or younger, to compel federal government 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. In addition to the individual plaintiffs, the complaint also named “Future Generations” as a plaintiff. The U.S. contended that the plaintiffs lacked standing because they had not alleged a particularized harm that was traceable to defendants’ actions. The U.S. also said the alleged injuries were not redressable and that the plaintiffs’ claims raised separation of powers issues. The U.S. also argued that Future Generations had alleged no injury in fact. In addition, the U.S. said the plaintiffs had not stated a constitutional claim and that federal courts lacked jurisdiction over public trust doctrine lawsuits because such claims arise under state law. The National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, and American Petroleum Institute have moved to intervene in the action. Juliana v. United States, No. 6:15-cv-01517-TC (D. Or., motion to dismiss Nov. 17, 2015): added to the “Common Law Claims” slide.

Group Filed FOIA Lawsuit Seeking Production of NOAA Climate Documents

Judicial Watch, a conservative, non-partisan educational foundation, filed a Freedom of Information Act (FOIA) lawsuit against the National Oceanic and Atmospheric Administration (NOAA) in the federal district court for the District of Columbia. Judicial Watch alleged that NOAA had failed to respond to the foundation’s request for documents and records of communications concerning certain climate data and related press releases, as well as records related to a subpoena issued by Congressman Lamar Smith for the same categories of records. Judicial Watch asked the court to order NOAA to search for and produce the responsive records. In a December 22 press release, Judicial Watch said that NOAA had submitted the requested documents to Congress after the complaint was filed. Judicial Watch, Inc. v. United States Department of Commerce, No. 1:15-cv-02088 (D.D.C., filed Dec. 2, 2015).

Groups Filed Lawsuit Challenging California County Ordinance That Established Permitting Process for Oil and Gas Projects

Environmental and community groups filed a lawsuit in California Superior Court against Kern County challenging amendments to the County zoning ordinance that would purportedly authorize development of up to 3,647 new oil and gas wells annually, as well as related construction and operational activities, without further site-specific assessment. The groups said that the final environmental impact report (EIR) prepared under the California Environmental Quality Act for the ordinance failed to disclose the extent and severity of impacts. The petitioners’ enumeration of the final EIR’s shortcomings included an alleged failure to explain how the activities authorized by the ordinance will comply with state-mandated greenhouse gas reduction targets. The petitioners also alleged that the County failed to support the conclusion that mitigation measures would reduce greenhouse gas impacts to insignificant levels. Committee for a Better Arvin v. County of Kern, No. BCV-15101679 (Cal. Super. Ct., filed Dec. 10, 2015): added to the “State NEPAs” slide.

Here is a recent addition to the Non-U.S. Climate Litigation Chart.

German Court Rejected Challenge to Environment Ministry’s Decision to List Journalists as “Climate Change Skeptics” in an Informational Pamphlet

The Administrative Court of Halle, Germany ruled in late November 2015 on a dispute between two journalists and the German Ministry of Environment. Specifically, the court determined that laws governing privacy rights and the Ministry’s conduct did not prevent the Ministry from publishing a pamphlet in 2013 that referred to the journalists by name and identified them as “climate-change skeptics.” The journalists had written an article in February 2012 for the Germany news outlet Die Welt that raised questions about the prevailing theory of climate change—based in large part on interviews with academics who doubted the prevailing theory of greenhouse gas-based radiative forcing. The dispute arose when the journalists challenged use of their names in the pamphlet. The court recognized the validity of the journalists’ rights to privacy generally, but concluded that in this case the Ministry’s action was warranted. The court also noted that the Ministry is not restricted to neutral presentations of information; to the contrary, the Ministry is responsible to “inform and educate the public about environmental issues,” which in this instance included making appropriately objective characterizations of arguments and actors in a scientific debate. Miersch/Maxeiner v. Bundesministerium für Umwelt [Federal Ministry of Environment], Verwaltungsgericht [Administrative Court] Halle, 18 Nov. 2015, [Case No.] 1 A 304/13 HAL (Ger.) (court’s press release (German))

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