Climate Litigation Chart Updates – November 2016


Posted on November 1st, 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 Litigation Chart (Update #92):

FEATURED CASE

Ninth Circuit Reinstated Listing of Bearded Seal as Threatened Based on Climate Change Projections.

The Ninth Circuit Court of Appeals reversed a district court decision that vacated the listing of the Beringia distinct population segment (DPS) of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act (ESA). A threatened species is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Ninth Circuit found that the National Marine Fisheries Service (NMFS) had acted reasonably based on best available scientific and commercial data when it relied on projections of loss of sea ice through the end of the century as the basis for its listing decision. The Ninth Circuit concluded that the fact that climate projections from 2050 to 2100 might be “volatile” did not deprive those projections of value because “[t]he ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute.” The court rejected the plaintiffs’ argument that NMFS had impermissibly diverged from its previous practice of using 2050 “as the outer boundary” of the “foreseeable future.” The court  also was not persuaded by the plaintiffs’ contention that NMFS did not adequately establish the relationship between loss of sea ice and the bearded seal’s risk of extinction or by the argument that NMFS was required to calculate or demonstrate the magnitude of the threat of sea ice loss to the seals. The Ninth Circuit concluded: “NMFS has provided a rational and reasonable basis for evaluating the bearded seal’s viability over 50 and 100 years, and it has candidly disclosed the limitations of the available data and its analysis. The ESA does not require more, and NMFS did not act arbitrarily or capriciously in concluding that the effects of global climate change on sea ice would endanger the Beringia DPS in the foreseeable future.” In a separate but similar Ninth Circuit appeal, the federal government filed a brief on October 18 urging the court to overturn a district court decision vacating the listing of a ringed seal subspecies as threatened based on climate change threats through the end of the century. Alaska Oil & Gas Association v. Pritzker, Nos. 14-35806, 14-35811 (9th Cir. opinion Oct. 24, 2016); Alaska Oil & Gas Association v. Pritzker, Nos. 16-35380, 16-35382 (9th Cir. opening brief Oct. 18, 2016).

DECISIONS AND SETTLEMENTS

West Virginia Federal Court Ordered EPA to Evaluate Clean Air Act’s Impacts on Coal Industry

The federal district court for the Northern District of West Virginia ruled that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its non-discretionary obligation under Section 321(a) of the Clean Air Act to conduct evaluations of loss or shifts in employment that might result from implementation of the Clean Air Act. The court again rejected EPA’s argument that the obligation was discretionary as well as the argument that the coal companies that brought the action did not have standing. The court also was not persuaded by EPA’s “new interpretation” of Section 321(a) pursuant to which EPA claimed it had complied with its requirements by preparing regulatory impact analyses and economic impact analyses as part of rulemaking processes, even though they were not prepared for the explicit purpose of complying with Section 321(a). The court said that EPA’s previous “consistent acknowledgement” that it had no employment evaluations “coupled with testimony from various experts that EPA’s claimed attempts do not comply” demonstrated that EPA had not fulfilled its duty. The court ordered EPA to file a plan and schedule for compliance within 14 days. The plan must specifically address how EPA will consider the effects of Clean Air Act regulation on the coal industry. Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va. Oct. 17, 2016).

Texas Federal Court Ordered Jurisdictional Discovery in Exxon Case Against Massachusetts Attorney General, Citing Concern That State’s Investigation Was Undertaken in Bad Faith

The federal district court for the Northern District of Texas ordered the parties to conduct jurisdictional discovery to aid the court in determining whether it lacked subject matter jurisdiction over Exxon Mobil Corporation’s (ExxonMobil’s) action seeking to block the civil investigative demand (CID) issued by Massachusetts Attorney General Maura Healey. Healey issued the CID in connection with an investigation into unfair or deceptive acts or practices in trade or commerce with respect to fossil fuel products and securities. Healey argued in a motion to dismiss that Younger abstention—which is based on a “a strong federal policy against federal court interference with pending state judicial proceedings”—should apply because ExxonMobil was pursuing a parallel action in Massachusetts state court to challenge the CID. The Texas federal court said that ExxonMobil’s allegations raised concerns that Healey had issued the CID in bad faith, which would preclude Younger abstention. The court said that Healey’s actions and remarks leading up to issuance of the CID caused the court concern and presented the question of whether Healey “issued the CID with bias or prejudgment about what the investigation of Exxon would discover.” The court cited Healey’s participation in the AGs United for Clean Power Press Conference in March 2016 and her attendance at a pre-press conference closed-door meeting with a climate change activist and a lawyer with a “well-known global warming litigation practice.” The court also cited “anticipatory” remarks made by Healey about the ExxonMobil investigation. On October 20, Healey asked the court to reconsider its order, arguing that the action should be dismissed based on a lack of personal jurisdiction. Healey also argued that venue was improper, and that “ample substantive evidence” was already in the record regarding the decision to issue the CID. Other developments in this case are discussed below in New Cases and Filings. Exxon Mobil Corp. v. Healey, No. 4:16-cv-00469 (N.D. Tex. Oct. 13, 2016).

New York Court Ordered Exxon and Its Accountant to Comply with Attorney General’s Subpoena

On October 26, 2016, the New York Supreme Court ordered Exxon Mobil Corporation (Exxon) and its accounting firm, PricewaterhouseCoopers LLP (PwC), to comply with a subpoena issued by the New York Attorney General to PwC in August 2016. The court rejected Exxon’s argument that it could withhold documents based on an accountant-client privilege under Texas law. The court concluded that Texas law would not preclude production of the requested documents, but that, in any event, New York law—which does not recognize an accountant-client privilege—was applicable. The attorney general filed the order to show cause on October 14 after Exxon notified it that it intended to assert the privilege to shield some documents requested in the PwC subpoena from disclosure. The attorney general issued the subpoena as part of its investigation into Exxon’s representations to investors and to the public about risks related to climate change. The subpoena sought documents and communications related to PwC’s audits of Exxon, including documents concerning the impacts on Exxon’s financial statements or business of climate change, climate change policies, the cost of carbon, regulations limiting or discouraging use of fossil fuels, policies incentivizing renewable energy, and changes in the prices of oil, gas, and other hydrocarbons. In its papers supporting the order to show cause, the attorney general said that PwC had served as Exxon’s independent auditor since before 2010 (the time period covered by the subpoena), a role in which PwC examined whether Exxon’s financial statement disclosures were supported by evidence. The attorney general said that PwC also served from at least 2008 to 2013 as global advisor and report writer for the Carbon Disclosure Project, a non-profit organization that functions as a global disclosure system for environmental information, including greenhouse gas emissions, from companies including Exxon. People v. PricewaterhouseCoopers LLP, No. 451962/2016 (N.Y. Sup. Ct. Oct. 24, 2016).

Massachusetts Appellate Court Affirmed Dismissal of Divestment Action Against Harvard

The Massachusetts Appeals Court affirmed the dismissal of a lawsuit brought by a Harvard University student group and its members to compel the university to divest its endowment’s investments in fossil fuel companies. The appellate court agreed with the Superior Court that the students had failed to demonstrate special standing to challenge management of charitable funds. The appellate court cited the Superior Court’s rejection of the students’ argument that they had standing based on negative impacts that fossil fuel investments had on academic freedom and education at the university. The appellate court also agreed with the court below that it was not appropriate to recognize a new tort of “intentional investment in abnormally dangerous activities” advocated by the plaintiffs on behalf of future generations. The appellate court quoted the Superior Court in concluding that the students “have brought their advocacy, fervent and articulate and admirable as it is, to a forum that cannot grant the relief they seek.” Harvard Climate Justice Coalition v. President & Fellows of Harvard College, No. 15-P-905 (Mass. App. Ct. Oct. 6, 2016).

Ninth Circuit Upheld Forest Service Determination That Climate Change Documents Did Not Require Supplemental NEPA Review for Ski Area

In an unpublished memorandum, the Ninth Circuit Court of Appeals upheld the U.S. Forest Service’s decision not to prepare a supplemental environmental impact statement (EIS) for the expansion of a ski area in Oregon. Environmental groups had identified five categories of new information since the 2004 preparation of an EIS that they contended warranted supplemental review under the National Environmental Policy Act (NEPA). The new information included ten documents with information on climate change (eight climate change studies and two internal climate change guidance documents). The Ninth Circuit said it owed its “highest” deference to the Forest Service’s explanations regarding why the climate change documents were either irrelevant or did not otherwise provide significant new information area that necessitated supplemental NEPA review. Oregon Wild v. Connaughton, No. 14-35251 (9th Cir. Oct. 19, 2016).

Company Owner Pleaded Guilty to Using Funds for Carbon Sequestration Study for Personal Use

The U.S. Attorney’s Office for the Western District of Pennsylvania announced that the president and owner of a company that received federal funds to study the potential use of a Wyoming site for carbon sequestration had pleaded guilty to a charge of filing a false claim against the United States. The U.S. Attorney’s Office said that the defendant did not perform work under a cooperative agreement, which required his company to conduct field studies and drill wells; instead, the defendant transferred millions of dollars to his personal bank account. The count to which the defendant pleaded guilty involved a request for reimbursement of $363,668.50 in 2011. Sentencing was scheduled for February 3, 2017. United States v. Ruffatto, No. 2:16-cr-00167 (W.D. Pa. Oct. 21, 2016).

Minnesota Federal Court Said State Biofuel Mandate Was Not Preempted

The federal district court for the District of Minnesota ruled that the “Minnesota Mandate,” which requires diesel fuel sold in the state to contain a specific percentage of biodiesel, was not preempted by the federal Renewable Fuel Standard. The court also ruled that the plaintiffs did not have standing to bring their preemption claims against some of the defendants. The plaintiffs were associations representing the trucking industry, car and truck dealers, automobile manufacturers, the oil and gas industry, and refiners and petrochemical manufacturers. The court also ruled that the Eleventh Amendment barred the plaintiffs’ claims that the defendants violated state rulemaking procedures. Minnesota Automobile Dealers Association v. National Biodiesel Board, No. 15-cv-02045 (D. Minn. Sept. 29, 2016).

NEW CASES, MOTIONS, AND NOTICES

Sierra Club Enumerated Shortcomings in Department of Energy NEPA Review for LNG Exports

Sierra Club filed its opening brief in its challenge to the U.S. Department of Energy’s (DOE’s) authorization of the export of natural gas from Dominion Cove Point LNG, LP’s (Dominion’s ) facility in Maryland. Prior to approving Dominion’s application to export, DOE issued a finding of no significant impact (FONSI) based on an environmental assessment (EA) prepared by the Federal Energy Regulatory Commission for modifications to Dominion’s Maryland facility. Sierra Club argued that DOE had failed to comply with the National Environmental Policy Act (NEPA) because the EA did not consider the impacts, including climate impacts, of the increased domestic gas production and coal use that the authorized exports would cause. Sierra Club also argued that DOE should have considered the “downstream” impacts, including end users’ combustion of the exported gas. Sierra Club also contended that the FONSI was arbitrary because DOE had acknowledged that there would be increased gas production and that gas production had many potentially significant environmental impacts. Sierra Club said that DOE could not cite documents prepared outside the NEPA process as evidence of its “hard look,” including an “addendum” prepared by DOE or three reports prepared by the National Energy Technology Laboratory, including a “Global Life Cycle Report” that considered greenhouse gas emissions from electricity generation abroad, including generation using liquefied natural gas (LNG) from the United States. Sierra Club also argued that DOE’s findings under the Natural Gas Act that the exports would be in the public interest were arbitrary and capricious because DOE had failed to identify and characterize environmental impacts to weigh against the benefits of exports. Sierra Club v. United States Department of Energy, No. 16-1186 (D.C. Cir. Oct. 24, 2016).

Opponents of EPA Carbon Standards for New Coal-Fired Power Plants Filed Initial Briefs

Petitioners challenging EPA’s new source performance standards for carbon emissions from power plants filed their opening briefs in the D.C. Circuit Court of Appeals. The performance standard for new coal-fired electric utility steam generating units is based on a highly efficient supercritical pulverized coal unit with partial carbon capture and storage as the best system of emission reduction (BSER). A group of 23 states argued in an opening brief that EPA had not applied the correct legal standard to its determination that this BSER was adequately demonstrated; the states argued that EPA was required to show that “the entire selected system is commercially available for implementation at new, full-scale facilities.” The states also argued that EPA had failed to show that the BSER was adequately demonstrated, had failed to adequately consider costs and benefits, and not made the statutorily required endangerment and significant contribution findings required to set NSPS for a source category. North Dakota filed its own opening brief focused on the application of the standards to power plants fueled by lignite coal. North Dakota argued that EPA had failed to establish that the BSER for new steam generating units was adequately demonstrated for lignite or that the performance standard was achievable. North Dakota also contended that EPA’s failure to create a subcategory for lignite-fueled units was arbitrary and capricious. (A brief from petitioner-intervenors Lignite Energy Council and Gulf Coast Lignite Coalition also focused on the rule’s application to lignite-fired facilities.) The non-state petitioners also argued that the BSER was not adequately demonstrated and that EPA had not made the required endangerment and significant contribution findings. The non-state petitioners also asserted the performance standards for modified and reconstructed sources were unlawful, and that EPA’s inconsistent analysis of the availability of CCS for coal-fired and gas-fired baseload units rendered the standards arbitrary and capricious. The non-state petitioners further argued that EPA had improperly rejected petitions for reconsideration that raised the issue of EPA’s ex parte contacts prior to the notice and comment period for the proposed rule. North Dakota v. EPA, Nos. 15-1381 et al. (D.C. Cir. opening briefs Oct. 13, 2016; petitioner-intervenors’ opening brief Oct. 24, 2016).

Groups Asked D.C. Circuit to Expedite Consideration of Challenge to Natural Gas Pipeline

Three environmental groups challenging a natural gas pipeline from Alabama to Florida asked the D.C. Circuit Court of Appeals to expedite consideration of their petition for review. The petitioners said they wished to obtain a ruling on the merits prior to the scheduled May 2017 completion date for the pipeline in the event that the D.C. Circuit did not grant a stay. The petitioners also said that they would still request an expedited schedule if a stay were granted to minimize harm to the other parties. The groups argued that FERC’s determinations were subject to “substantial challenge” and appropriate for expedited review because of FERC’s failure to consider downstream environmental impacts, including greenhouse gas emissions. The groups said FERC’s review was at odds with EPA and Council on Environmental Quality guidance, caselaw, and the NEPA regulations. Sierra Club v. FERC, No. 16-1329 (D.C. Cir. Oct. 24, 2016).

Petitioners Asked D.C. Circuit to Consolidate Methane Standards Challenge with Other Challenges to Emissions Standards in Oil and Gas Sector

Petitioners challenging EPA’s final methane and volatile organic compound (VOC) emission standards for new, reconstructed, and modified sources in the oil and natural gas sector filed a motion to govern further proceedings. The petitioners asked the court consolidate the methane standards challenge with two pending proceedings that also challenged new source performance standards for the oil and gas sector. The petitioners also requested that the consolidated proceedings be bifurcated to allow the court to first consider “fundamental legal issues,” including EPA’s authority to regulate, and then to move to consideration of “implementation-based challenges.” North Dakota v. EPA, Nos. 16-1242 et al. (D.C. Cir. Oct. 21, 2016).

Challenge to Aircraft Greenhouse Gas Endangerment Finding Filed

The Biogenic CO2 Coalition filed a petition in the D.C. Circuit Court of Appeals seeking review of EPA’s endangerment finding for greenhouse gas emissions from aircraft. The coalition’s members for purposes of the petition include American Bakers Association, Corn Refiners Association, and National Cotton Council of America. Biogenic CO2 Coalition v. EPA, No. 16-1358 (D.C. Cir., filed Oct. 14, 2016).

Center for Biological Diversity Asked Ninth Circuit for Rehearing in Biomass Permit Challenge

The Center for Biological Diversity (CBD) filed a petition for rehearing and/or modification of opinion after the Ninth Circuit Court of Appeals deferred to EPA and upheld a Prevention of Significant Deterioration (PSD) permit for a biomass-burning power plant at a lumber mill in California. CBD argued that the court had improperly applied deference to “unsupported and arbitrary” factual conclusions reached by EPA. CBD said that even if rehearing were not granted, the court should modify its “overbroad” conclusion that EPA’s Guidance for Determining Best Available Control Technology for Reducing Carbon Dioxide Emissions from Bioenergy Production (Bioenergy BACT Guidance) was rational. CBD also called for modification of the opinion to correct factual errors regarding prior environmental review of the facility and the final list of fuels EPA approved in the permit. Helping Hand Tools v. EPA, No. 14-72553 (9th Cir. petition for rehearing Oct. 14, 2016).

Exxon Sought to Block New York Attorney General Investigation in Texas Federal Court

On October 17, 2016, Exxon Mobil Corporation (Exxon) filed a motion for leave to add the Attorney General of New York as a defendant in the action in the federal district court for the Northern District of Texas in which Exxon seeks to bar enforcement of a civil investigative demand issued by Massachusetts Attorney General Maura Healey. Exxon indicated that the New York attorney general’s “sweeping subpoena” issued in November 2015 seeking 40 years of climate change-related documents was issued in furtherance of the illegal objective of depriving Exxon of its constitutional rights. (Exxon’s filings included the subpoena itself, which had not previously been publicly available.) Exxon said that it initially cooperated with the New York attorney general’s investigation believing it would be “fair and impartial” but that subsequent events—including a March 2016 press conference at which state attorneys general pledged to use their enforcement powers to address climate change and the disclosure of a common interest agreement between state attorneys general—had revealed the political and “pretextual nature” of the investigation. In addition to adding the New York attorney general as a defendant, Exxon also sought leave to add claims of federal preemption and for conspiracy to deprive Exxon of its constitutional rights. In support of the preemption claim, Exxon contended that the attempt by the Massachusetts and New York attorneys general to impose liability on Exxon for failing to take into account future climate change regulation was at odds with Securities and Exchange Commission rules and regulations for incorporating assumptions about future events. After Exxon filed a motion requesting that the court expedite consideration of the motion for leave to amend, the Massachusetts attorney general asked the court to deny the request. The Massachusetts attorney general argued that the “actual but unstated reason” for the “rush” to add the New York attorney general was to avoid the jurisdiction of the New York Supreme Court, which was then considering the New York attorney general’s motion to compel Exxon and its accountant to respond to a subpoena (discussed above). Exxon Mobil Corp. v. Healey, No. 4:16-cv-00469-K (N.D. Tex., motion for leave to amend Oct. 17, 2016; motion to expedite Oct. 19, 2016; opposition to motion to expedite Oct. 21, 2016).

Conservation Groups Asked to Intervene in Oil and Gas Trade Association’s Suit to Compel Quarterly Federal Mineral Lease Sales

Nine conservation groups moved to intervene in Western Energy Alliance’s (WEA’s) action seeking to compel the Bureau of Land Management to hold quarterly federal mineral sales. In the lawsuit, WEA alleged that BLM was failing to meet the Mineral Leasing Act’s requirements for regular lease sales. The environmental groups asserted that the relief sought by WEA would harm their interests by eliminating important environmental protections on public lands and fundamentally changing the way the federal oil and gas leasing program operates. The groups seek intervention as of right, or, alternatively, permissive intervention. Western Energy Alliance v. Jewell, No. 1:16-cv-00912 (D.N.M., motion to intervene Oct. 19, 2016).

Action Filed in California Federal Court to Challenge Decision Not to List Pacific Fisher as Threatened Species

The Center for Biological Diversity and three other organizations filed a lawsuit in the federal district court for the Northern District of California challenging the withdrawal of the proposed designation of a distinct population segment of the fisher (the Pacific fisher) as threatened under the Endangered Species Act. The complaint described Pacific fishers as “slender mammals with long, bushy tails, closely related to minks, martens, and wolverines.” The plaintiffs charged that the U.S. Fish and Wildlife Service had “inexplicably and illegally abandoned years of work” and that the withdrawal was contrary to the best scientific and commercial data available. The plaintiffs cited climate change as one of the threats to the Pacific fisher and its habitat. In their notice of intent to sue, the plaintiffs said that FWS had arbitrarily misconstrued uncertainty regarding the effects of climate change on fisher habitat as evidence that climate change was not contributing to significant habitat loss. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:16-cv-06040 (N.D. Cal., filed Oct. 19, 2016).

Power Plant Owners Challenged New York “Zero Emission Credits” for Nuclear Plants

Owners of fossil fuel-fired power plants that supply electricity to New York and two trade associations filed an action in the federal district court for the Southern District of New York challenging the New York Public Service Commission’s (PSC’s) plan to provide “Zero Emissions Credits” to four nuclear power plants. The Zero Emission Credit (ZEC) program was established as part of the PSC’s proceeding to establish a Clean Energy Standard to achieve the statewide goal of obtaining 50% of New York’s electricity from renewable sources by 2030. The plaintiffs alleged that the ZEC program, though “[o]stensibly” intended to avoid the loss of carbon-free nuclear generation before new renewable power sources could be developed, would in fact “simply serve to keep the uneconomic capacity and energy from [the four nuclear plants] in the … wholesale markets, notwithstanding the fact that wholesale market price signals are indicating that these units should be retired.” The plaintiffs alleged that the ZEC program was field preempted because the Federal Energy Regulatory Commission has exclusive jurisdiction over wholesale electricity sales. The plaintiffs also contended that the ZEC program was barred by conflict preemption and invalid under the dormant Commerce Clause. Coalition for Competitive Electricity v. Zibelman, No. 1:16-cv-08164 (S.D.N.Y. Oct. 19, 2016).

Fish and Wildlife Service Said It Reasonably Determined That Climate Change Did Not Threaten Pacific Marten’s Existence

The U.S. Fish and Wildlife Service defended its decision not to list the coastal marten as endangered or threatened. The coastal marten is a small mammal in the weasel family that lives in coastal northern California and coastal southern and central Oregon. In a cross motion for summary judgment, FWS said it had reasonably determined that historic threats to the coastal marten’s habitat had been abated and that current stressors, including climate change, were not expected to have significant impacts. The FWS said that climate change’s potential impacts on the coastal marten’s habitat “ranged from negative to neutral to potentially beneficial” and that it had determined that “there was not reliable information to conclude that climate change would cause the coastal marten to be in danger of extinction now or in the foreseeable future.” Center for Biological Diversity v. United States Fish & Wildlife Service, No. 3:15-cv-05754 (N.D. Cal. Oct. 16, 2016).

After Issuing FONSI for Amendment to Coal Mine Plan, Agency Notified Court It Had Complied with Order Requiring Analysis of Indirect and Direct Effects

The United States Office of Surface Mining Reclamation and Enforcement (OSMRE) filed a notice in the federal district court for the District of Montana to inform the court that it had complied with the court’s January 2016 order requiring it to perform additional environmental review in conjunction with the approval of a modification to a coal mining plan. OSMRE told the court that it had completed an environmental assessment (EA) that considered the direct, indirect, and cumulative environmental effects of the modification, and that it had issued a finding of no significant impact (FONSI) based on the EA. The FONSI said that the proposed action’s contribution to greenhouse gas emissions locally and nationally would be minor to moderately adverse and short-term. The NEPA documents for the modification are available here. WildEarth Guardians v. U.S. Office of Surface Mining, Reclamation & Enforcement, Nos. 14-cv-13, 14-cv-103 (D. Mont. notice of compliance Oct. 3, 2016).

Utilities and Natural Gas Distribution Companies Filed Commerce Clause Challenge to Washington Greenhouse Gas Regulations

Electric utilities and natural gas local distribution companies filed an action in the federal district court for the Eastern District of Washington challenging greenhouse gas emission regulations known as the “Clean Air Rule” adopted by the Washington State Department of Ecology. The plaintiffs asserted that the regulations—which apply to stationary sources, natural gas distributors located in Washington, and petroleum product producers located in or importing to Washington—violated the Commerce Clause because it establishes a program that restricts the market for greenhouse gas emissions offsets and favors in-state offsets over out-of-state offsets. Avista Corp. v. Bellon, No. 2:16-cv-00335 (E.D. Wash. Sept. 27, 2016).

Business Groups Said Washington Greenhouse Gas Regulations Exceeded Statutory Authority, Violated State Laws

Eight business and trade groups filed a challenge to Washington’s “Clean Air Rule” in Washington Superior Court. The petitioners contended that the legislature had not delegated the Washington Department of Ecology the authority to establish Clean Air Rule’s greenhouse gas regulatory program, which Ecology established at the instruction of the governor. In addition, the petitioners asserted that Ecology’s adoption of the regulations violated the State Environmental Policy Act because an environmental impact statement should have been prepared. The petitioners also said that the program violated the Administrative Procedure Act because of its arbitrary treatment of Energy Intensive, Trade Exposed industries and based on arbitrary cost-benefit analysis and least-burdensome alternative analysis. The petitioners also alleged violations of Washington’s Regulatory Fairness Act, which requires preparation of a small business economic impact statement, and of the Washington constitution’s limits on taxation. Association of Washington Business v. Washington State Department of Ecology, No. __ (Wash. Super. Ct., filed Sept. 27, 2016).

Texas Resident Filed RICO Action Alleging Harms Inflicted by “Climate Alarmism Enterprise”

A Texas resident filed a Racketeer Influenced and Corrupt Organizations Act (RICO) action against Climate Action Network and 39 other organizations, as well as 99 John and Jane Does, alleging that the defendants had acted in concert to further a criminal scheme based on false claims that anthropogenic emissions of carbon dioxide cause climate change. The plaintiff labeled this scheme the “Climate Alarmism Enterprise.” The complaint also alleged that the Climate Alarmism Enterprise had “powerful allies with immunity from prosecution,” chiefly the Intergovernmental Panel on Climate Change. The complaint’s allegations also included that a number of other parties, including websites, scientific organizations, and the New York Times, aided and abetted the enterprise. The plaintiff sought compensatory, punitive, and exemplary damages and asked the court to order the defendants to disgorge improperly secured monies. In October, the plaintiff sought to intervene in Exxon Mobil Corporation’s lawsuit against the Massachusetts attorney general. The plaintiff asserted in his motion to intervene that Exxon could not adequately represent his interests, citing the “pressure” exerted on Exxon by “climate alarmist politicians at home and abroad.” Goldstein v. Climate Action Network, No. 5:16-cv-00211 (N.D. Tex., filed Sept. 13, 2016); Exxon Mobil Corp. v. Healey, No. 4:16-cv-00469-K (N.D. Tex., motion to intervene Oct. 25, 2016).

Arizona Board of Regents Filed Notice of Appeal in Climate Scientist Public Records Case

The Arizona Board of Regents filed a notice of appeal a month after the Arizona Superior Court filed a judgment ordering production of previously withheld emails of two University of Arizona climate scientists pursuant to the State’s public records law. The Superior Court’s judgment was based on a June 2016 “Under Advisement Ruling” in which the court concluded that the potential chilling effect of disclosure did not overcome the presumption favoring disclosure. Energy & Environment Legal Institute v. Arizona Board of Regents, No. C20134963 (Ariz. Super. Ct., notice of appeal Oct. 17, 2016).

Competitive Enterprise Institute Cited Texas Federal Court’s Concerns Regarding Massachusetts Attorney General’s Exxon Investigation as Support for Sanctions in D.C. Court

The Competitive Enterprise Institute (CEI) argued to the District of Columbia Superior Court that a Texas federal court’s order in Exxon’s case against the Massachusetts attorney general supported CEI’s request for sanctions against the United States Virgin Islands (USVI) attorney general. As part of a climate change-related investigation of Exxon, the USVI attorney general issued, but later revoked, a subpoena to CEI asking for certain documents and communications. CEI argued that sanctions were warranted, in part due to the USVI attorney general’s bad faith in commencing the Exxon investigation. CEI said that the Texas federal court’s expressions of concern regarding whether the Massachusetts attorney general undertook her investigation of Exxon in good faith supported CEI’s arguments regarding the pretextual nature of the USVI attorney general’s investigatory demands. CEI noted that the same events cited by the Texas federal court as warranting concern—including a climate change press conference held by a number of state attorneys general—also demonstrated bad faith on the part of the USVI attorney general. United States Virgin Islands Office of the Attorney General v. ExxonMobil Oil Corp., No. 2016 CA 2469 (D.C. Super. Ct., motion for leave to file notice of supplemental authority Oct. 17, 2016).

Proceeding in New York State Court Seeks Correspondence About Attorney General’s Climate Change Investigations

Energy & Environmental Legal Institute (EELI) filed a new proceeding against the New York attorney general under New York’s Freedom of Information Law (FOIL) seeking to compel release of correspondence of the attorney general and employees that “related to the Attorney General’s decision … to investigate those who disagree with him on climate change and climate change policies.” EELI said that the attorney general had improperly withheld documents in response to their FOIL requests on the basis of attorney-client privilege and the work product doctrine and also on the grounds that the disclosure would interfere with a law enforcement investigation and that the documents requested were inter- or intra-agency memoranda.  Energy & Environment Legal Institute v. Attorney General of New York, No. 101678/16 (N.Y. Sup. Ct., filed Oct. 6, 2016).

Environmental Groups Told California Appellate Court That CEQA Review for Golden State Warriors Arena Lacked Greenhouse Gas Information

Environmental groups asked the California Court of Appeal for permission to file an amicus curiae brief in support of the appellants challenging the California Environmental Quality Act (CEQA) review for a mixed-use development project that includes a new arena for the National Basketball Association’s Golden State Warriors. One of the amicus brief’s primary arguments was that the project’s CEQA review did not provide sufficient information regarding the project’s greenhouse gas impacts. The brief said that the project proponent had not demonstrated that its commitment to implement the project in accordance with San Francisco’s greenhouse gas strategy would lead to reductions in greenhouse gases, and that the environmental impact report provided no information regarding the magnitude of the project’s greenhouse gas emissions. Mission Bay Alliance v. Office of Community Investment and Infrastructure, No. A148865 (Cal. Ct. App. Oct. 3, 2016).

Bird Groups Sent Notice of Violations in Connection with Ohio Wind Turbine Project

The American Bird Conservancy and the Black Swamp Bird Observatory provided notice of violations of the Endangered Species Act in connection with a wind turbine project sponsored by the Ohio Air National Guard at Camp Perry in Ottawa County, Ohio. The organizations said that construction and operation of the wind turbine would also violate the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and NEPA. The organizations said that the proposed site for the turbine was in a major bird migration corridor and in “extremely close proximity” to the Ottawa National Wildlife Refute and was “one of the worst possible locations to construct and operate a wind power project.” The organizations contended that the NEPA review conducted for the project should have considered other means of reducing Camp Perry’s greenhouse gas emissions, and that the Air National Guard’s conduction of the base of the turbine prior to issuing an environmental assessment violated NEPA. The groups said they would consider litigation should the Air National Guard proceed with the project. Notice of Violations in Connection with the Camp Perry Air National Guard Wind Energy Project in Ottawa County, Ohio (Oct. 24, 2016).

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