Climate Change Litigation Charts Update – October 2016


Posted on October 4th, 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 U.S. Climate Case Chart since Update #90.

FEATURED CASE

Ninth Circuit Upheld Air Permit for Biomass Power Plant at Lumber Yard

The Ninth Circuit Court of Appeals upheld a Prevention of Significant Deterioration (PSD) permit for a biomass-burning power plant at a lumber mill in California. The Ninth Circuit concluded that the U.S. Environmental Protection Agency (EPA) had reasonably concluded that the Clean Air Act did not require consideration of solar power and a greater natural gas mix as control alternatives at the facility because doing so would impermissibly “redefine the source.” The Ninth Circuit also deferred to EPA’s application of its Guidance for Determining Best Available Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy Production (Bioenergy BACT Guidance). The court  said that this case appeared to be the first time a circuit court had addressed EPA’s framework for evaluating BACT for greenhouse gas emissions from biomass facilities and concluded that deference to the Bioenergy BACT Guidance was required because EPA was acting “at the frontiers of science.” Helping Hand Tools v. EPA, No. 14-72553 (9th Cir. Sept. 2, 2016): added to the “Stop Government Action/Project Challenges” slide.

DECISIONS AND SETTLEMENTS

Texas Federal Court Ordered Mediation in ExxonMobil’s Suit Against Massachusetts Attorney General

In Exxon Mobil Corporation’s (ExxonMobil’s) action challenging a civil investigative demand (CID) issued by Massachusetts Attorney General Maura Healey, the federal district court for the Northern District of Texas appointed a mediator and ordered Exxon Mobil Corporation and Massachusetts Attorney General Maura Healey to mediate within 16 days of the court’s order (by October 8). ExxonMobil’s lawsuit alleged that the CID—which sought up to 40 years of ExxonMobil records related to climate change—violated constitutional and common law rights. The court’s mediation order followed a hearing at which the judge encouraged the parties to attempt to resolve their dispute out of court. Prior to the hearing, ExxonMobil filed its opposition to the attorney general’s motion to dismiss the case, arguing that the court had personal jurisdiction over the attorney general and that abstention would not be appropriate. ExxonMobil also said that the constitutional claims were ripe for adjudication and that the venue was proper, and asserted that the attorney general had not contested the adequacy of the complaint’s allegations. In reply, the attorney general stated that it was not conceding the sufficiency of ExxonMobil’s claims and argued that ExxonMobil had misapplied precedents regarding personal jurisdiction. The attorney general reiterated that the court should abstain because ExxonMobil could pursue—and was pursuing—relief in Massachusetts state court. The attorney general also reiterated that Texas was not the proper venue. Parties that interceded in the lawsuit on ExxonMobil’s behalf included 11 states that expressed concern regarding unconstitutional use of investigative powers by state attorneys general, and a Massachusetts doctor to whom the attorney general had submitted a CID in an unrelated Medicaid fraud investigation.Exxon Mobil Corp. v. Healey, No. 4:16-cv-00469-K (N.D. Tex. Sept. 22, 2016): added to the “Regulate Private Conduct” slide.

Montana Federal Court Said Canadian Lynx Critical Habitat Need Not Include “Climate Change Refugia”

The federal district court for the District of Montana ruled that the U.S. Fish and Wildlife Service (FWS) should reconsider whether areas in southern Colorado and on national forest lands in Montana and Idaho should be designated as critical habitat for the Canadian lynx. The court rejected, however, a claim by the plaintiffs that FWS erred by not designating areas that could serve as “climate change refugia” in the future. The court said the plaintiffs’ arguments for such designations were at odds with a 2010 decision in which the court rejected essentially the same arguments. WildEarth Guardians v. U.S. Department of Interior, Nos. CV 14–270–M–DLC, 14–272–M–DLC (D. Mont. Sept. 7, 2016): added to the “Endangered Species Act” slide.

Federal Court Said Fish and Wildlife Service Adequately Considered Climate Change in Determination Not to List Arctic Grayling Distinct Population Segment as Endangered

The federal district court for the District of Montana upheld an FWS determination not to list the Upper Missouri River distinct population segment of Arctic grayling as endangered or threatened under the Endangered Species Act. The Arctic grayling is a freshwater fish only found in two locations in the conterminous United States, the upper Missouri River system above the Great Falls in Montana and in northwest Wyoming within Yellowstone National Park. The court rejected the plaintiffs’ assertion that the analysis of climate change impacts had been inadequate and arbitrary, finding that FWS had reasonably concluded that the species would likely survive and adapt to a warming climate. Center for Biological Diversity v. Jewell, No. 2:15-cv-00004-SEH (D. Mont. Sept. 2, 2016): added to the “Endangered Species Act” slide.

Colorado Appellate Court Said Court Lacked Jurisdiction to Consider City of Boulder Ordinances That Took Steps Toward Establishment of New Utility That Would Increase Renewable Generation

The Colorado Court of Appeals ruled that a district court lacked jurisdiction over a challenge by Public Service Company of Colorado (Xcel) to ordinances passed by the City of Boulder to implement a charter amendment that authorized the City to establish a new light and power utility if certain conditions were met. (Xcel is the current provider of electricity to Boulder customers.) One of the charter amendment’s conditions required that the new utility have a plan for reduced greenhouse gas emissions and increased renewable energy. The two ordinances challenged by Xcel accepted a third-party expert’s conclusion that the conditions precedent had been met and stated the City’s intention to establish a new utility. The appellate court said that the district court had erred in dismissing Xcel’s action as time-barred, but that the district court did not have jurisdiction because the ordinances were not final actions. Public Service Co. of Colorado v. City of Boulder, No. 2016COA138 (Colo. Ct. App. Sept. 22, 2016): added to the “Challenges to Local Action” slide.

Vermont Court Set Deadline for Attorney General to Produce Climate Investigation Records to E&E Legal and Free Market Environmental Law Clinic

A Vermont Superior Court denied a motion by the Attorney General of Vermont to dismiss an action seeking to compel disclosure of documents under the Vermont Public Records Act. Energy & Environmental Legal Institute and Free Market Environmental Law Clinic had requested emails that included the terms “climate denial” or “climate denier” or the names or email addresses of certain lawyers at environmental nongovernmental organizations or the names or email addresses of the New York State Attorney General (NYAG) or the chief of the NYAG’s Environmental Protection Bureau. The court rejected the attorney general’s defense that the plaintiffs had failed to exhaust administrative remedies, but said that the attorney general had shown that “exceptional circumstances” existed given the breadth of the request and the need for individual review of documents and redaction of privileged material. The court ordered the attorney general to complete its review by October 3, 2016. Energy & Environment Legal Institute v. Attorney General of Vermont, No. 349-6-16WNCV (Vt. Super. Ct. Sept. 19, 2016): added to the “Force Government to Act/Other Statutes” slide.

SoCalGas Agreed to Pay Up to $4.3 Million to Resolve Criminal Charges Arising from Natural Gas Leak

The Los Angeles County District Attorney and Southern California Gas Company (SoCalGas) agreed to a proposed settlement in the criminal case stemming from the 2015 methane link from SoCalGas’s Aliso Canyon natural gas storage facility. SoCalGas agreed to plead no contest to a misdemeanor violation of failing to timely report the leak. SoCalGas must pay approximately $550,000 for fines, penalty assessments, and response costs and must also install and maintain an infrared methane leak detection system, and must hire and maintain six full-time employees for at least three years to operate and maintain the system. The settlement agreement indicated that the settlement’s requirements would cost SoCalGas between $4,004,172 and $4,304,172. People v. Southern California Gas Co., No. 6SC00433 (Cal. Super. Ct. Sept. 13, 2016): added to the “Regulate Private Conduct” slide.

Los Angeles Settled CEQA Lawsuit Over Airport Expansion

On August 24, 2016, the Los Angeles City Council approved a memorandum of understanding (MOU) between the City and the Alliance for a Regional Solution to Airport Congestion (ARSEC) that resolved a lawsuit ARSEC brought in 2013 under the California Environmental Quality Act to challenge a major redevelopment and expansion of the Los Angeles International Airport. ARSEC’s arguments had included a claim that an alternative with lower greenhouse gas emissions should have been chosen. The MOU provided that the City would not proceed with a key feature of the selected alternative, the relocation of a runway to be 260 feet closer to residential neighborhoods. Alliance for a Regional Solution to Airport Congestion v. City of Los Angeles, No. BS143086 (Cal. Super. Ct.): added to the “State NEPAs” slide.

Environmental Appeals Board Said Energy Storage Option Did Not Have To Be Considered at Outset of BACT Analysis for New Gas Turbines

EPA’s Environmental Appeals Board (EAB) upheld a PSD permit issued for the construction of five new natural gas-fired combustion turbines at a power plant in Tempe, Arizona. The EAB rejected petitioner Sierra Club’s contention that the Maricopa County Air Quality Department abused its discretion in conducting its greenhouse gas BACT analysis and in concluding that a control alternative that paired energy storage with combustion turbines to reduce greenhouse gas emissions would impermissibly “redefine the source.” The EAB cautioned that its decision should not be read as “an automatic off-ramp for energy storage technology” as a consideration in Step 1 of future BACT analyses. In re Arizona Public Service Co. Ocotillo Power Plant, PSD Appeal No. 16-01 (EAB Sept. 1, 2016): added to the “Stop Government Action/Project Challenges” slide.

NEW CASES, MOTIONS, AND NOTICES

Environmental Group Sued ExxonMobil for Failing to Prepare Massachusetts Facility forClimate Change

Conservation Law Foundation (CLF) filed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act against ExxonMobil Corporation and two related companies (ExxonMobil) alleging that the defendants had failed to take climate change impacts into account in connection with their operation of the Everett Terminal, a marine distribution terminal in Massachusetts. The complaint, filed four months after CLF submitted a notice of intent to ExxonMobil, alleged that the terminal was vulnerable to sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surge, and that ExxonMobil had not taken action to address these vulnerabilities despite having “long been well aware of” climate change impacts and risks. In the RCRA cause of action, the complaint said that the threats of storm surge and sea level rise were imminent and that the failure to adapt the Everett Terminal would result in the release of hazardous and solid wastes into the environment and surrounding residential communities. In the Clean Water Act causes of action, the complaint asserted that the facility was violating its National Pollutant Discharge Elimination System (NPDES) permit because discharges from the facility were occurring more frequently than allowed under the permit and numeric effluent limitations were exceeded. In addition, the complaint alleged that discharges from the facility violated state water quality standards and that the facility’s stormwater pollution prevention plan and spill prevention, control and countermeasures plan were inadequate because they failed to address climate change impacts. Conservation Law Foundation v. ExxonMobil Corp., No. 1:16-cv-11950-MLW (D. Mass., filed Sept. 29, 2016): added to the “Regulate Private Conduct” slide.

Environmental Groups Challenged Natural Gas Pipeline Southeastern U.S.

Sierra Club, Flint Riverkeeper, and Chattahoochee Riverkeeper filed a petition in the D.C. Circuit Court of Appeals seeking review of Federal Energy Regulatory Commission (FERC) orders authorizing construction and operation of a natural gas pipeline project extending from Alabama to Florida. In a statement, Sierra Club said the petitioners would argue that FERC failed to disclose the pipeline’s climate impacts, including the impacts of power plants supplied by the pipeline. The environmental organizations filed the lawsuit after FERC denied their request for rehearing. FERC rejected the organizations’ call for consideration of indirect effects related to induced upstream production and downstream natural gas consumption. Sierra Club and Flint Riverkeeper also joined Gulf Restoration Network in filing a petition in the Eleventh Circuit Court of Appeals for review of the U.S. Army Corps of Engineers issuance of Clean Water Act permits for the pipeline. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir., filed Sept. 20, 2016); In re Florida Southeast Connection, LLC, Nos. CP14-554-001, CP15-16-001, CP15-17-001 (FERC Sept. 7, 2016);Gulf Restoration Network v. U.S. Army Corps of Engineers, No. 16-15545 (11th Cir., filed Aug. 17, 2016): added to the “Stop Government Action/NEPA” slide.

FERC Defended Environmental Review for Constitution Pipeline Project

FERC and proponents of the Constitution Pipeline Project filed briefs defending FERC’s environmental review of the project, which includes a 124-mile natural gas pipeline between Pennsylvania and New York and associated facilities. The briefs also defended FERC’s compliance with the Natural Gas Act and the Clean Water Act. FERC argued that the National Environmental Policy Act (NEPA) did not require it to consider potential impacts from increases in natural gas production and that it had “reasonably analyzed” the pipeline project’s greenhouse gas emissions. FERC said it had explained its exclusion from emissions calculations of alleged loss of carbon sinks, that it had not improperly rejected the significance of the project’s potential emissions based on a comparison to total U.S. greenhouse gas emissions, and that it was not required to assess the project’s incremental contribution to climate change. FERC also said that it had not impermissibly segmented its review of the Constitution Pipeline Project from consideration of the impacts of other pipeline proposals. Three intervening parties—the pipeline project’s developer, the owner and operator of an existing pipeline system to which the Constitution Pipeline would connect, and the Natural Gas Supply Association—also filed briefs defending FERC’s authorizations of the pipeline, including FERC’s consideration of greenhouse gas and climate change impacts. In their reply brief, four environmental groups argued that FERC should have considered the impacts of increased gas production because the pipeline would be the “legally relevant cause” of such upstream impacts and impacts were reasonably foreseeable. The groups also reiterated their arguments that FERC’s evaluation of greenhouse gas emissions did not comply with NEPA. Catskill Mountainkeeper, Inc. v. Federal Energy Regulatory Commission, Nos. 16-0345, 16-0361 (2d Cir. opposition briefs Sept. 12, 2016; reply brief Sept. 23, 2016): added to the “Stop Government Action/NEPA” slide.

NYSDEC, Environmental Groups Filed Briefs Defending Denial of Water Quality Certification for Constitution Pipeline

The New York State Department of Environmental Conservation (NYSDEC) filed a brief opposing Constitution Pipeline Co., LLC’s challenge to NYSDEC’s denial of a Clean Water Act Section 401 water quality certification for the Constitution Pipeline Project, approximately 100 miles of which passes through New York. DEC said that its denial was “timely, rational, supported by the record, and consistent with the applicable federal and state legal standards.” In its brief, DEC noted that increased water temperatures caused by removal of riparian vegetation could limit habitat suitability for cold-water species, and that such impacts could be exacerbated by climate change in the long term. Two other briefs were filed by intervenors opposing the challenge, including a brief from a group called Stop the Pipeline (STP). STP’s arguments included a call for additional environmental review to consider supplemental material regarding risks of extreme weather caused by climate change.Constitution Pipeline Co., LLC v. Seggos, No. 16-1568 (2d Cir. Sept. 12, 2016): added to the “Challenges to State Action” slide.

Opening Briefs Filed in Challenges to EPA’s Latest Renewable Fuel Standard Rule

Parties challenging various aspects of EPA’s final renewable fuel standard rule filed initial briefs in the D.C. Circuit Court of Appeals. The final rule established percentage standards for blending renewable fuels into motor vehicle gasoline and diesel produced and imported in 2014, 2015, and 2016. One brief filed by “obligated parties” (i.e., companies required to purchase credits to meet the rule’s volume requirements) argued that the 2016 cellulosic fuel volume requirement was unreasonable and unlawful and that EPA acted outside its authority in setting biomass-based diesel requirements. A second obligated-party brief argued that EPA arbitrarily and capriciously failed to obligate appropriate parties, namely by excluding blenders. Renewable energy companies and trade groups argued in their brief that EPA had improperly used a waiver to reduce the statutory volume requirements. In a separate brief, the National Biodiesel Board also argued that EPA had exceeded its waiver authority and argued that the final rule’s advanced biofuel volumes were arbitrary and capricious. On September 15, 2016, three motions were filed seeking leave to file amicus briefs in support of the petitioners. The movants were CVR Energy, Inc., the Small Retailers Coalition, and multiple “Biodiesel Associations.” Petitioner-intervenor American Petroleum Institute (API) opposed these motions, arguing that they should have been filed earlier and that the delay prejudiced API. API also said that the parties had not explained why they were not adequately represented by other parties. Americans for Clean Energy v. EPA, Nos. 16-1005 et al. (D.C. Cir. Sept. 8, 2016): added to the “Challenges to Other Federal Action” slide.

Center for Biological Diversity Filed Lawsuit Seeking EPA Response to Ocean Acidification Petition

The Center for Biological Diversity filed an action in the federal district court for the District of Columbia challenging EPA’s failure to respond to its April 2013 petition requesting that EPA amend water quality criteria and publish guidance to address ocean acidification. The complaint asked the court to find that EPA had failed to act in a reasonable timeframe and to order EPA to formally respond. The complaint noted that the existing criteria for ocean acidity were developed in 1976 and said that a “robust body of science” had been developed since that time that could assist in revising the water quality criteria. Center for Biological Diversity v. EPA, No. 1:16-cv-01791 (D.D.C., filed Sept. 8, 2016): added to the “Force Government to Act/Other Statutes” slide.

Plaintiffs Sought Summary Judgment in Case Challenging Riverside County Highway Project

Four environmental groups moved for summary judgment in their challenge to a major highway project in Riverside County, California. In their motion, filed in the federal district court for the Central District of California, the plaintiffs argued, among other things, that the Federal Highway Administration’s review under the National Environmental Policy Act failed to consider a reasonable range of alternatives, including certain alternatives that could reduce greenhouse gas emissions.Center for Biological Diversity v. Federal Highway Administration, No. 5:16-cv-00133 (C.D. Cal. Sept. 22, 2016): added to the “Stop Government Action/NEPA” slide.

Environmental Groups, EPA Agreed to Dismissal of Lawsuit Seeking Regulation of Aircraft Emissions

Center for Biological Diversity, Friends of the Earth, and EPA filed a joint stipulation of dismissal without prejudice of the environmental groups’ lawsuit that sought to compel EPA to respond to their petition seeking regulation of aircraft greenhouse gas emissions. The dismissal came after EPA issued a final endangerment finding in July 2016 for certain aircraft greenhouse gas emissions. EPA said in July that it anticipated proposing emissions standards that would be at least as stringent as standards that the International Civil Aviation Organization is expected to formally adopt in March 2017. Center for Biological Diversity v. EPA, No. 16-cv-681 (D.D.C. Sept. 9, 2016): added to the “Force Government Action/Clean Air Act” slide.

West Virginia and Other States Supported Murray Energy in Clean Air Act Jobs Study Case; EPA Urged Court to Decide Case Without Trial

Twelve states and one state agency submitted an amicus brief to the federal district court for the Northern District of West Virginia in support of Murray Energy Corporation and its affiliates in their lawsuit seeking to compel EPA to perform a study of the Clean Air Act’s impact on employment. The states, led by West Virginia, said their brief was intended to “highlight the unique challenges they face resulting from the job-loss information vacuum caused by EPA’s unlawful refusal to comply with Section 321,” the Clean Air Act provision that is the crux of the case. The states urged the court to deny EPA’s motion for summary judgment. EPA filed its reply in support of its motion, reiterating its view that the case was ripe for adjudication and that a trial was not necessary. EPA argued that if the court found it had not performed a non-discretionary duty, the remedy should be limited to ordering EPA to fulfill its obligation—and that other relief sought by Murray Energy, including an injunction on new regulations, was barred as a matter of law. Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va.): added to the “Challenges to Federal Action/Other Federal Action” slide.

Group Sought Vermont Attorney General Records Related to Identities of Outside Parties Participating in States’ Climate Change Investigations

Energy & Environmental Legal Institute filed a complaint in Vermont Superior Court under the Vermont Public Records Law seeking to compel disclosure of documents it had requested from the Attorney General of Vermont related to an allegedly invalid common interest agreement with other states. The agreement related to climate change-related investigations of fossil fuel companies. E&E Legal sought communications and other documents discussing states’ requests to share records with outside parties. E&E Legal contended that the attorney general had improperly withheld the documents based on attorney-client privilege and the attorney work product doctrine. Energy & Environmental Legal Institute v. Attorney General of Vermont, No. __ (Vt. Super. Ct., filed Sept. __, 2016): added to the “Force Government to Act/Other Statutes” slide.

Tesla Shareholder Filed Suit Challenging Proposed Acquisition of SolarCity, Said Founder’s Desire to Change the World by Combatting Climate Change Was at Odds with Company’s Interests

A Tesla Motors, Inc. (Tesla) stockholder filed a stockholder derivative complaint asserting that Tesla’s proposed acquisition of SolarCity Corporation (SolarCity) would cause substantial damage to Tesla. Tesla is in the energy storage and electric car business. SolarCity describes itself as “America’s #1 full-service solar provider.” The defendants were Tesla co-founder, chairman, and chief executive officer Elon Musk; other Tesla board members; SolarCity, for which Musk is chairman and the largest stockholder; other SolarCity directors and officers; and a Tesla subsidiary created for the purpose of acquiring SolarCity. The complaint, filed in the Delaware Court of Chancery, stated claims of breach of fiduciary duty, waste, and unjust enrichment. It is one of at least four complaints filed in the court in connection with the SolarCity acquisition. The complaint asserted that Tesla’s proposed acquisition of SolarCity—a company that the complaint alleged was started “to support Musk’s quest to fix climatechange”— was driven by Musk’s desire to “ensure his legacy to change the world” by shifting to a solar electric economy. The complaint alleged that the acquisition was intended to protect Musk and his family’s and friends’ financial interests, and that the acquisition would not be in the best interests of Tesla and its shareholders. Prasinos v. Musk, No. 12723 (Del. Ch., filed Sept. 6, 2016): added to the “Regulate Private Conduct” slide.

Environmental Groups Threatened Lawsuit Over Failure to Consider Colorado Oil and Gas Development Impacts—Including Climate-Related Impacts—on Endangered Fish Species

Three environmental groups sent a notice of intent to sue to the U.S. Bureau of Land Management (BLM) and the U.S. Fish and Wildlife Service asserting that the agencies had not complied with the Endangered Species Act (ESA) when BLM authorized oil and gas exploration and development in the Upper Colorado River Basin of western Colorado. The notice said that BLM’s approval of resource management plans in August 2015 would allow development of almost 19,000 oil and gas wells in the region that would affect four endangered fish species and their critical habitat. The notice asserted that the agencies’ failure to consider the water depletion and spill impacts on the four species violated the ESA. The groups contended, among other arguments, that the agencies relied on a 2008 programmatic biological opinion that did not take into account threats posed by climate change. Center for Biological Diversity, Living Rivers, and Rocky Mountain Wild, 60-Day Notice of Intent to Sue the BLM and U.S. Fish and Wildlife Service Pursuant to the Endangered Species Act Regarding Oil and Gas Exploration and Development (Sept. 12, 2016): added to the “Stop Government Action/Other Statutes” slide.

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