Climate Change Litigation Chart Updates – March 2016


Posted on March 8th, 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 #84).

[Editor’s Note: Due to changes to the Arnold & Porter website, these updates will not be posted online until later in March.]

FEATURED CASE

Supreme Court Stayed Clean Power Plan; Merits Briefing Commenced in D.C. Circuit

In five identical half-page orders, the United States Supreme Court granted five applications requesting that it stay implementation of the Clean Power Plan, which regulates carbon emissions from existing power plants. The orders indicated that Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the applications. A blog post by Sabin Center Director Michael Gerrard about the stay is available here. Ten days later, the petitioners filed a joint opening brief in the D.C. Circuit, and on February 23, a number of briefs were filed by amicus parties in support of the petitioners, including members of Congress, former state public utility commissioners, and a group of “organizations that represent women, minorities, and seniors, and those who advocate for free-market solutions to help these vulnerable populations.” In their joint brief, the petitioners contended that the Clean Power Plan was outside the authority vested in the United States Environmental Protection Agency (EPA) by Section 111 of the Clean Air Act, and that Section 112 expressly prohibited the Clean Power Plan. They also argued that the Clean Power Plan rule unconstitutionally abrogated state authority and “commandeer[ed] and coerc[ed]” states into implementing federal energy policy.West Virginia v. EPA, Nos. 15A773 et al. (U.S. Feb. 9, 2016); West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. joint opening brief Feb. 19, 2016; amicus briefs Feb. 23, 2016): added to the “Challenges to Federal Action/Clean Power Plan” slide. [Editor’s Note: Many petitions, motions, and other documents filed with respect to the Clean Power Plan are available on pages 15–16 of the chart.]

DECISIONS AND SETTLEMENTS

Second Circuit Declined to Stop Construction Activity on Natural Gas Pipeline for Which Environmental Groups Alleged Climate-Related Shortcomings in Environmental Review

The Second Circuit Court of Appeals denied a request to stay construction activity associated with the development of the Constitution Pipeline Project, a natural gas transmission line that would travel through Pennsylvania and New York. The stay was sought by Clean Air Council and Sierra Club, two of the five petitioners that have asked the Second Circuit to review orders of the Federal Energy Regulatory Commission (FERC) approving the project and authorizing it to proceed. In their memorandum of law supporting the request for the stay, the petitioners contended that FERC violated the National Environmental Policy Act by failing to consider the project’s indirect impacts, and particularly impacts of natural gas development induced by the project. They also contended, among other arguments, that FERC’s analysis of cumulative impacts did not capture harms from additional greenhouse gas emissions and that FERC’s approval of the project violated the Clean Water Act.Catskill Mountainkeeper, Inc. v. Federal Energy Regulatory Commission, No. 16-345 (2d Cir. order Feb. 24, 2016; petition for review filed Feb. 5, 2016; emergency motion for stay and brief Feb. 5, 2016): added to the “Stop Government Action/NEPA” slide.

Seventh Circuit Said Challenge to FutureGen Carbon Injection Permits Was Moot

The Seventh Circuit Court of Appeals dismissed Illinois landowners’ challenges to permits issued under the Safe Drinking Water Act that authorized FutureGen Industrial Alliance (FutureGen) to construct and operate wells to store carbon dioxide. The permits were part of FutureGen’s plan to use carbon capture and storage to develop a near-zero emissions coal-fired power plant. The United States Department of Energy suspended funding for the project in January 2015, and the permits expired as of February 2, 2016. The Seventh Circuit said the proceedings challenging the permits were moot because the permits were no longer in effect and could not be reissued without new regulatory proceedings. DJL Farm LLC v. EPA, Nos. 15‐2245, 15‐2246, 15‐2247, & 15‐2248 (7th Cir. Feb. 23, 2016): added to the “Stop Government Action/Other Statutes” slide.

Challenge to “Tailoring Rule,” a Casualty of UARG v. EPA, Was Voluntarily Dismissed

The American Petroleum Institute and other petitioners voluntarily dismissed a petition filed in 2012 to challenge Step 3 in EPA’s “tailoring rule,” which addressed thresholds for regulating greenhouse gas emissions from large stationary sources. The proceeding had been held in abeyance since 2013. The Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA made the tailoring rule invalid.American Petroleum Institute v. EPA, No. 12-1276 (D.C. Cir. Feb. 18, 2016): added to the “Challenges to Federal Action/Clean Air Act” slide.

D.C. Circuit Denied Rehearing on Improper Venue Ruling for Challenge to California Nonroad Diesel Engine Regulations

The D.C. Circuit Court of Appeals denied a petition for rehearing of its December 2015 ruling that it was not the proper venue for a challenge to EPA’s authorization of California regulations concerning in-use nonroad diesel engine emissions. In its December opinion, the D.C. Circuit agreed with petitioners led by Dalton Trucking, Inc. that venue was not proper because EPA’s determination did not have national applicability and because EPA had not made a determination of nationwide scope or effect. Rehearing was sought by another petitioner, American Road & Transportation Builders Association, which objected to language in the court’s opinion that indicated that the California regulations could be adopted by other states. The challenge will instead be heard by the Ninth Circuit.Dalton Trucking, Inc. v. EPA, Nos. 13-1283, 13-1287 (D.C. Cir. denial of rehearing Feb. 11, 2016;opinion Dec. 18, 2015): added to the “Challenges to Federal Action/Clean Air Act” slide.

Federal Court Ordered White House Office of Science & Technology Policy to Produce Some Documents Related to Director’s Polar Vortex Video

The federal district court for the District of Columbia ruled that the White House Office of Science & Technology Policy (OSTP) could for the most part withhold—based on the deliberative process privilege—drafts of a letter prepared in response to the Competitive Enterprise Institute’s request that OTSP correct claims made by the OSTP director in an online video about the link between climate change and the Polar Vortex. The court ruled, however, that OSTP had to disclose draft pages that were shared with a Rutgers University professor whose research supported the theory that climate change had led to more severe winter cold. The court said that the “consultant corollary” did not apply in this situation. The court also said that emails concerning the video could not be withheld because OSTP had asserted that the video expressed the director’s personal opinion and expert judgment, and the deliberative process privilege was primarily concerned with protecting the policymaking process. Competitive Enterprise Institute v. Office of Science & Technology Policy, No. 14-cv-01806 (D.D.C. Feb. 10, 2016): added to the “Climate Protesters and Scientists” slide.

Washington Federal Court Dismissed Challenge to Snake River Maintenance Plan, Rejected Argument That Corps Failed to Consider Increased Sediment Accumulation Caused by Climate Change

The federal district court for the Western District of Washington granted summary judgment to the United States Corps of Engineers in a case in which environmental and conservation groups alleged that the Corps’ plan for maintaining the Snake River navigation channel violated the National Environmental Policy Act (NEPA) and the Clean Water Act. The court rejected the plaintiffs’ argument that the Corps had violated NEPA by failing to incorporate the impacts of climate change on sediment deposition in its decision-making. The court said that “[p]laintiffs’ climate change argument boils down to an assertion that the Corps should have forecasted future climate change sediment yields …, despite the speculation inherent in such an exercise,” and that NEPA did not require consideration of speculative information. Idaho Rivers United v. United States Army Corps of Engineers, No. 14-cv-1800 (W.D. Wash. Feb. 9, 2016): added to the “Stop Government Action/NEPA” slide.

California Supreme Court Denied Rehearing in CEQA Case Concerning Significance of Major Development’s Greenhouse Gas Emissions

The California Supreme Court denied a petition for rehearing in Center for Biological Diversity v. Department of Fish and Wildlife, in which the court ruled that the California Environmental Quality Act (CEQA) review for a 12,000-acre development had not supported the conclusion that the development’s greenhouse gas emissions would not have significant impacts. The court also made a non-material alteration to its November 2015 opinion. Center for Biological Diversity v. Department of Fish and Wildlife, No. S217763 (Cal. Feb. 17, 2016): added to the “State NEPAs” slide.

Maryland Court Upheld Approval of Power Plant for Dominion Cove Point Liquefied Natural Gas Facility

The Maryland Court of Special Appeals affirmed the Maryland Public Service Commission’s (PSC’s) approval of an electric generating station intended to power the Dominion Cove Point natural gas liquefaction facility. An environmental organization unsuccessfully argued that the PSC’s requirement that the project’s sponsor contribute $40 million to the Strategic Energy Investment Fund (SEIF)—which finances investments in energy efficiency and conservation programs, renewable energy resources, low-income energy assistance, and other purposes—was an impermissible tax. The court said that the purpose of requiring the contribution to SEIF was to offset “societal harms” identified by the PSC, including increased carbon emissions and use of a limited supply of industrial’s greenhouse gas emission allowances under the Regional Greenhouse Gas Initiative. Accokeek, Mattawoman, Piscataway Creeks Communities Council, Inc. v. Maryland Public Service Commission, No. 2437 (Md. Ct. Spec. App. Feb. 16, 2016): added to the “Stop Government Action/Other Statutes” slide.

Washington State Court Rejected Climate Protesters’ Necessity Defense After Allowing Them to Present Evidence in Support of It

Five individuals who blocked a rail yard in Washington state to draw attention to climate change and the risks of coal and oil trains were convicted of trespass in Washington state court on January 15, 2016. Before the trial, the judge in Snohomish County District Court initially dismissed the protesters’ necessity defense—in which the individuals argued that civil disobedience was necessary to address climate change and harms caused by oil trains. On reconsideration, however, the judge allowed the defense to present testimony in support of the necessity defense at the trial. The defense relied on the testimony of a climate scientist, a physician, a rail-safety specialist, an environmental policy researcher, and a former rail company employee. Ultimately, the judge directed the jury to disregard the testimony, saying that the defendants had not shown that they had exhausted legal means of advocating for changes in climate change and rail safety policies. The judge said from the bench that the defendants were “tireless advocates whom we need in this society to prevent the kind of catastrophic effects that we see coming and our politicians are ineffectually addressing.” The defendants were not convicted on charges of obstructing or trying to delay trains. Washington v. Brockway, Nos. 5035A-14D, 5039A-14D, 5040-14D, 5041-14D, 5042-14D (Wash. Dist. Ct. order initially dismissing necessity defense Jan. 6, 2016; motion to reconsider Jan. 6, 2016; verdict Jan. 15, 2016): added to “Climate Protesters and Scientists” slide.

Connecticut Court Upheld Denial of Approvals for Single-Family Home Where Owner Had Not Considered Sea Level Rise

A Connecticut Superior Court rejected a property owner’s challenge to the denial of variances and coastal site plan approval for a single-family home on a parcel in the town of Old Saybrook that was formerly part of a larger parcel containing Katharine Hepburn’s home. Among the reasons cited by the court for upholding the decisions of the Borough of Fenwick Zoning Board of Appeals was the owner’s failure to consider impacts on coastal resources, including impacts of sea level rise. Citing a 2010 report on climate change impacts prepared by a subcommittee to the Governor’s Steering Committee on Climate Change, the court noted that the required review was “underscored by the likely impact on Long Island Sound from rising sea levels—with estimates ranging from twelve to fifty-five inches by the end of the century.” A Piece of Paradise, LLC v. Borough of Fenwick Zoning Board of Appeals, No. LNDCV136047679S (Conn. Super. Ct. Dec. 23, 2015): added to the “Adaptation” slide.

NEW CASES, MOTIONS, AND NOTICES

More Companies Challenged Renewable Fuel Standard Rule

Additional parties joined the proceedings in the D.C. Circuit Court of Appeals challenging EPA’s final renewable fuel standard rule (RFS rule), which was published in December 2015. E.I. du Pont de Nemours and Company (DuPont) moved to intervene on the ground that was a leading supplier to the “first generation” ethanol industry and also that it had recently completed a “second generation” ethanol project—a cellulosic ethanol plant in Iowa. DuPont said it could bring the perspective of the “nascent cellulosic renewable fuel industry” to the proceedings. Monroe Energy, LLC, a petroleum products refiner, filed a separate petition for review, as did another group of refiners, the American Petroleum Institute, and the American Fuel & Petrochemical Manufacturers. Valero Energy Corporation, an energy company that refines transportation fuels and owns multiple ethanol plants, filed a petition for review challenging the RFS rule and also a separation petition seeking review of earlier EPA rulemakings concerning renewable fuel standard requirements, contending that the D.C. Circuit had jurisdiction to consider the challenges to the older rules because the petition was based on grounds that arose within 60 days after new grounds arose for challenging those rules. Americans for Clean Energy v. EPA, No. 16-1005 (D.C. Cir., DuPont motion to intervene Feb. 5, 2016); Monroe Energy, LLC v. EPA, No. 16-1044 (D.C. Cir., filed Feb. 9, 2016); American Fuel & Petrochemical Manufacturers v. EPA, No. 16-1047 (D.C. Cir., filed Feb. 10, 2016); American Petroleum Institute v. EPA, No. 16-1050 (D.C. Cir., filed Feb. 11, 2016); Alon Refining Krotz Springs, Inc. v. EPA, No. 16-1049 (D.C. Cir., filed Feb. 11, 2016); Valero Energy Corp. v. EPA, Nos. 16-1054, 16-1055 (D.C. Cir., filed Feb. 12, 2016): added to the “Challenges to Federal Action/Clean Air Act” slide.

Environmental Groups Charged That Forest Service and BLM Failed to Protect Greater Sage-Grouse, Cited Climate Impacts on Habitat

Four environmental organizations filed a complaint in the federal district court for the District of Idaho to challenge approvals by the United States Forest Service and the United States Bureau of Land Management (BLM) of revised land use plans for lands located in the range of the greater sage-grouse in Idaho and other states. The plaintiffs alleged that the plans did not implement best available science and government experts’ recommendations and would not ensure the greater sage-grouse’s survival, which was threatened by the “synergistic impacts of climate change and human activities” on their habitat. The plaintiffs alleged claims under NEPA, the Federal Land Policy and Management Act, and the National Forest Management Act.” Western Watersheds Project v. Schneider, No. 16-cv-83 (D. Idaho, filed Feb. 25, 2016): added to the “Stop Government Action/Other Statutes” slide.

Public Housing Residents Alleged Albany Oil Terminal Violated Clean Air Act

Public housing tenants in Albany whose homes were adjacent to a petroleum product transloading facility filed a Clean Air Act citizen suit against the facility’s operator. The County of Albany and six environmental groups joined the tenants as plaintiffs. The plaintiffs claimed that the operator modified and operated the facility in violation of the Clean Air Act, New York’s State Implementation Plan, and the facility’s Title V permit. The complaint’s allegations focused on traditional air pollutants—particularly volatile organic compounds—but also asserted that the offloading, storage, handling, and transloading of petroleum products at the facility resulted in greenhouse gas emissions. Benton v. Global Companies, LLC, No. 1:16-cv-00125 (N.D.N.Y., filed Feb. 3, 2016): added to the “Regulate Private Conduct” slide.

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