Climate Case Chart Updates – January 2017


Posted on January 9th, 2017 by Jessica Wentz

Each month, Arnold & Porter Kaye Scholer LLP and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHARTS SINCE UPDATE #93.

FEATURED CASE

D.C. Appellate Court Said Climate Scientist Michael Mann’s Defamation Claims Could Proceed Against Authors and Publishers of Two Articles

The District of Columbia Court of Appeals upheld in part and reversed in part a trial court’s denial of special motions to dismiss defamation claims made by the climate scientist Michael Mann against three authors of online articles and Competitive Enterprise Institute and National Review, Inc., which published the articles on their websites. The Court of Appeals also reversed the denial of special motions to dismiss Mann’s claim of intentional infliction of emotional distress because the appellate court concluded that Mann had not demonstrated that he was likely to succeed in proving that he suffered severe emotional distress. The articles at issue in the action asserted that Mann had been “shown” to have behaved in a “deceptive” and “most unscientific manner” because he “molested and tortured data in the service of politicized science”; that he engaged in “academic and scientific misconduct”; that an investigation by his employer Pennsylvania State University was a “whitewash” or “cover-up”; and that a lawsuit threatened by Mann was “fraudulent” or “intellectually bogus and wrong.” The articles also likened Penn State’s investigation of Mann’s work to the university’s investigation regarding its former assistant football coach Jerry Sandusky, who was convicted of child sexual abuse. The appellate court concluded that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. In finding that Mann had met his burden of showing that a jury could find “actual malice” with respect to two of the articles, the appellate court said it would be for a jury to determine the credibility of the appellants’ assertions of “honest belief” in the truth of their statements and whether the belief was maintained “in reckless disregard of its probable falsity.” It would also be for a jury to consider the appellants’ objections to multiple investigation reports that found no evidence of misconduct by Mann. Competitive Enterprise Institute v. Mann, Nos. 14-CV-101, 14-CV-126 (D.C. Ct. App. Dec. 22, 2016).


DECISIONS AND SETTLEMENTS

Washington Trial Court Allowed Children to Allege Public Trust Doctrine Climate Claims, Found Earlier Appellate Decision Affirming Dismissal of Such Claims Unpersuasive

A Washington Superior Court denied a request by eight children who asked that the Washington Department of Ecology be found in contempt for failing to comply with earlier court orders requiring Ecology to issue a rule regulating carbon dioxide emissions. However, the court sua sponte granted leave for the children to add claims that Ecology, the State of Washington, and Washington’s governor had violated the Washington State Constitution and the public trust doctrine by failing to protect the children from climate change. The court acknowledged that an unpublished decision issued by the Washington Court of Appeals four years earlier affirmed dismissal of climate change-related public trust doctrine claims. The court said, however, that the appellate decision was not binding and that it did not find the decision persuasive “considering the alleged emergent and accelerating need for science based response to climate change and the governmental actions and inactions” since the decision was issued. The Superior Court also said that since 2013 courts had recognized “the role of the third branch of government in protecting the earth’s resources that it holds in trust,” citing the November 2016 decision of an Oregon federal district court in Juliana v. United States denying a motion to dismiss constitutional claims against federal respondents for failing to act to reduce carbon emissions. In the instant case, the Superior Court concluded that it was “time for these youth to have the opportunity to address their concerns in a court of law.” The youth petitioners submitted a proposed supplemental and amended petition for review on December 6, 2016. Foster v. Washington Department of Ecology, No. 14-2-25295-1 SEA (Wash. Super. Ct. proposed supplemental and amended petition for review Dec. 6, 2016; order Dec. 19, 2016).

Texas Federal Court Suspended Discovery in Exxon’s Action Against Attorneys General

On December 15, the federal district court for the Northern District of Texas stayed all discovery pending further order of the court in Exxon Mobil Corporation’s (Exxon’s) lawsuit seeking to bar ongoing climate change-related investigations by the attorneys general of Massachusetts and New York. This order followed two December 12 orders, one cancelling a previously ordered deposition of the Massachusetts attorney general scheduled for December 13 in Dallas and a second ordering briefs on the issue of whether the court had personal jurisdiction over the attorneys general. (The briefs on personal jurisdiction were originally due on January 4, but the court changed the date to February 1.) On December 9, the Massachusetts attorney general had asked the Fifth Circuit Court of Appeals for an emergency stay of discovery pending the Fifth Circuit’s disposition of the attorney general’s petition for a writ of mandamus challenging the district court’s jurisdictional discovery orders, in which the district court raised concerns regarding whether the attorney general commenced her investigation of Exxon in good faith. The Massachusetts attorney general filed the petition for writ of mandamus after the district court denied her motion for reconsideration of the jurisdictional discovery order and her request for stay of discovery and vacatur and reconsideration of the order requiring her to appear for the deposition, and her request for a stay pending appellate review. Other developments in the case included the New York attorney general’s December 5 motion to dismiss the action on the grounds that the court lacked personal and subject matter jurisdiction, that venue was improper, that action was not ripe, and that Exxon did not have a plausible claim for relief. The New York attorney general filed a motion to quash discovery on the same day, calling Exxon’s efforts to obtain internal information about New York’s ongoing state investigation “highly improper.” (In opposing the motion to quash, Exxon characterized its efforts as a “a set of narrowly tailored party discovery requests—including requests for production, requests for admission, interrogatories, and notices of deposition.”) The court denied the motion to quash on December 9 in the same order in which it denied the Massachusetts attorney general’s request for a stay pending appellate review. Outside of court, the organization 350.org sent a letter to Exxon’s attorneys objecting to a subpoena it had received seeking, among other things, communications between 350.org and state attorneys general and other climate activists. After discovery was suspended, briefing on the Massachusetts attorney general’s motion to dismiss the first amended complaint was completed, with Exxon submitting its opposition on December 19 and the attorney general submitting her reply on January 3. Exxon Mobil Corp. v. Schneiderman, No. 4:16-CV-469-K (N.D. Tex.); In re Healey, No. 16-11741 (5th Cir.).

Federal Court Said Most Redactions in FOIA Disclosure of U.S. Climate Negotiators’ Communications Were Appropriate

The federal district court for the Eastern District of Virginia ruled on whether portions of four documents exchanged between senior-level White House and Department of State staff responsible for setting climate policy and negotiating at the Paris conference had been properly redacted pursuant to the Freedom of Information Act’s deliberative process privilege. The court found that all of the communications were predecisional because they were part of the U.S.’s preparation for the Paris conference negotiations. The court found that the Department of State justified nondisclosure by showing how the withheld information, which included information about the weight attributed to different scientific studies and personal opinions about the credibility of the studies, “related to formulation of actual agency policy.” The court further found that most of the redacted portions of the documents were deliberative and therefore not required to be disclosed, but said that several “merely factual statements” had been improperly redacted. Competitive Enterprise Institute v. United States Department of State, No. 1:16-cv-00080 (E.D. Va. Dec. 1, 2016).

Maryland High Court Said Condition for Power Plant Approval Requiring Donation to Clean Energy Fund Was Not Unauthorized Tax

The Maryland Court of Appeals upheld the Maryland Public Service Commission’s (PSC’s) approval for an electric generating station intended to power the Dominion Cove Point natural gas liquefaction facility. Like the trial court and the Court of Special Appeals, the Court of Appeals rejected the argument that a condition of approval requiring a $40-million contribution to a State fund for investing in projects—including projects involving renewable and clean energy resources, greenhouse gas reduction or mitigation programs, cost-efficiency and conservation programs, or demand response programs—was not an unauthorized tax. After noting that the PSC was required by law to consider and weigh positive economic or environmental impact against negative impacts, the Court of Appeals found that the condition was “particular to that end” and “not for the primary purpose of raising revenue.” Instead, the condition was a “primarily regulatory” exaction imposed to offset the impact of emissions of pollutants. Accokeek, Mattawoman, Piscataway Creeks Communities Council, Inc. v. Public Service Commission of Maryland, S.T. 2016, No. 26 (Md. Ct. App. Dec. 16, 2016).

E&E Legal Withdrew Lawsuit Seeking Climate Investigation Records from Virginia Attorney General Following Disclosure of Additional Documents

The Energy & Environment Legal Institute (E&E Legal) submitted an order of non-suit to the Virginia Circuit Court in its action seeking disclosure of the Virginia attorney general’s documents related to climate change and communications between the offices of Virginia and New York attorneys general. E&E Legal said that the non-suit order followed the Virginia attorney general’s disclosure of additional documents. Richardson v. Herring, No. CL 16005149-00 (Va. Cir. Ct. Dec. 7, 2016).

EPA Granted Petition to Object to Operating Permit for Biomass Power Plant in Georgia but Denied Claim That BACT Analysis for Greenhouse Gases Was Required

The United States Environmental Protection Agency (EPA) granted in part a petition requesting that EPA object to a Title V operating permit issued by the Environmental Protection Division of the Georgia Department of Natural Resources for a biomass-fired power plant. EPA agreed with the petitioner, Partnership for Policy Integrity, that the permit should have included monitoring and recordkeeping requirements to ensure compliance with the requirement that the plant burn clean cellulosic biomass. EPA also concluded that limits on hazardous air pollutant emissions to which the plant operator had agreed were not enforceable as a practical matter. EPA denied, however, the petitioner’s claim that EPA should object to the permit on the basis that the plant was a major source for greenhouse gases and should have gone through Prevention of Significant Deterioration permitting, including a Best Available Control Technology analysis for greenhouse gases; EPA said the claim was not raised with reasonable specificity in comments on the draft permit. EPA published notice of its final order on the petition in the December 29, 2016 issue of the Federal Register. In re Piedmont Green Power, LLC, Petition No. IV-2015-2 (EPA Dec. 13, 2016), 81 Fed. Reg. 95992 (Dec. 29, 2016).

NEW CASES, MOTIONS, AND NOTICES

EPA and Other Parties Defended Carbon Dioxide Standards for New Power Plants

In early December, EPA submitted a brief defending its New Source Performance Standards for carbon dioxide emissions from new, modified, and reconstructed fossil fuel-fired power plants. EPA asserted that its selection of highly efficient supercritical pulverized coal boilers implementing partial carbon capture and sequestration (CCS) as the best system of emission reduction for new steam generating units was reasonable. EPA defended its decision not to create a subcategory for new power plants that burn lignite coal, for which some petitioners and intervenors had argued that partial CCS was not adequately demonstrated. EPA also said that it had reasonably considered the costs of partial CCS at an industry-wide level as well as for individual plants and that it appropriately declined to use a monetized cost-benefit analysis. EPA also argued that it had reasonably explained why the best system of emission reduction for new natural gas-fired combustion turbines did not include partial CCS, that it had established appropriate standards for modified and reconstructed steam units, that it was not required to issue a new endangerment finding for carbon dioxide emissions from fossil fuel-fired power plants (or, alternatively, that the record constituted such a finding), and that it had properly declined to docket emails that related to superseded proposals for emission standards. Later in December, a number of parties joined EPA in defending the standards: environmental and public health organizations; 18 states, Washington D.C., and New York City; power companies; CCS scientists; the operator of a CCS facility; experts on technology innovation and diffusion; and the Institute for Policy Integrity at the New York University School of Law. In other developments in this proceeding, the D.C. Circuit denied requests by North Dakota and by other petitioners and petitioner-intervenors for extension of the briefing schedule. The extension was sought to allow the parties to determine whether an alternative resolution of the proceedings could be achieved with the incoming Trump administration, in which case there might be no need for reply briefs. Oral argument was currently scheduled for April 17, 2017North Dakota v. EPA, No. 15-1381 (D.C. Cir.).

EPA Filed Notice of Appeal in Clean Air Act Jobs Study Case

EPA filed a notice of appeal in the action in the federal district court for the Northern District of West Virginia in which Murray Energy Corporation and its subsidiaries won summary judgment requiring EPA to conduct evaluations of the Clean Air Act’s impacts on employment, including in the coal industry. Murray Energy Corp. v. McCarthy, No. 5:14-CV-00039 (N.D. W. Va. Dec. 16, 2016).

Department of Energy Defended Conclusion That LNG Exports Would Not Have Significant Environmental Impact

The United States Department of Energy (DOE) submitted a brief to the D.C. Circuit arguing that it had reasonably concluded that its authorization of exports of liquefied natural gas (LNG) from the Dominion Cove Point terminal in Maryland would not have a significant impact on the environment. DOE said that it had taken a hard look at potential impacts of export-induced gas production, potential impacts from induced domestic coal consumption, and the climate impacts of induced gas production. DOE defended the reasonableness of its determination that it could not “meaningfully forecast” indirect effects from induced natural gas production and from foreign consumption of U.S.-produced LNG, but noted that it had nonetheless prepared an “Environmental Addendum” on potential impacts of accelerated natural gas production and a Life Cycle Analysis of the potential upstream and downstream effects on global greenhouse gas emissions of LNG production, transport, and export. DOE also argued that it had reasonably concluded pursuant to the Natural Gas Act that the benefits of LNG export outweighed potential environmental harms and that it had considered possible unequal distribution of impacts. At the end of November, Sierra Club filed two other briefs challenging DOE authorization of LNG exports from facilities in Louisiana and Texas. The arguments in those proceedings were similar to the arguments made by Sierra Club in this case. Sierra Club v. United States Department of Energy, No. 16-1186 (D.C. Cir. Dec. 15, 2016); Sierra Club v. United States Department of Energy, No. 16-1252 (D.C. Cir. Nov. 30, 2016); Sierra Club v. United States Department of Energy, No. 16-1253 (D.C. Cir. Nov. 30, 2016).

EPA Defended Renewable Fuel Standards

EPA filed a brief in the D.C. Circuit Court of Appeals defending the Renewable Fuel Standards (RFS) program’s annual standards for 2014, 2015, and 2016. EPA argued that the standards were neither too high nor too low, asserting that it had reasonably exercised its waiver authority to reduce the volumes of advanced biofuel and total renewable fuel required by the statute and that it used a reasonable methodology to set the standards. EPA also contended that its late promulgation of volume requirements for bio-based diesel was a reasonable exercise of its authority and satisfied its obligation to consider the relative benefits and burdens of the rule. EPA also argued that it was not required to reconsider its “point of obligation” regulation that made refiners and importers the obligated parties under the RFS program. Americans for Clean Energy v. EPA, Nos. 16-1005 et al. (D.C. Cir. Dec. 15, 2016).

EPA, Permittee Opposed Ninth Circuit Rehearing of Challenge to Permit for Biomass Power Plant

EPA and the permittee for a biomass-fired power plant in California urged the Ninth Circuit Court of Appeals not to grant a rehearing of its opinion upholding the plant’s Prevention of Significant Deterioration (PSD) permit. The Ninth Circuit had 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) and had also found that EPA 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. EPA said the “core” of the Center for Biological Diversity’s (CBD’s) petition for rehearing was “little more than a rehashing of its merits arguments” and that CBD’s arguments misconstrued EPA’s conclusions regarding the carbon dioxide contributions of different types of feedstocks. EPA also said that modification of the Ninth Circuit’s opinion’s statements about the Bioenergy BACT Guidance was not warranted. The permittee argued that the Ninth Circuit had correctly applied the law and had correctly described CBD’s arguments. Helping Hands Tools v. EPA, Nos. 14-72553, 14-72602 (9th Cir. Dec. 14, 2016).

Environmental Groups Said FERC’s Failure to Consider Gas Pipeline’s Downstream Effects Violated NEPA

Sierra Club, Flint Riverkeeper, and Chattahoochee Riverkeeper filed their opening brief in their challenge to the Federal Energy Regulatory Commission’s (FERC’s) authorizations for a natural gas pipeline project extending from Alabama to Florida. One of the petitioners’ three primary arguments was that FERC violated the National Environmental Policy Act (NEPA) and acted arbitrarily and capriciously by not considering the reasonably foreseeable indirect downstream environmental effects of the pipeline project, including “the greenhouse gas, health, and climate effects of burning 1.1 billion cubic feet of natural gas per day for several decades” when tools were available and used by other federal agencies exist to measure such impacts. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. opening brief Dec. 9, 2016).

Parties Agreed That Tenth Circuit Could Consider Challenge to Federal Coal Leases During Peabody Bankruptcy

The parties to an appeal by environmental groups of a district court’s dismissal of their challenge to federal coal leases in the Powder River Basin in Wyoming told the Tenth Circuit Court of Appeals that the automatic stay provisions of the United States Bankruptcy Code did not preclude the court from considering the appeal during the pendency of bankruptcy proceedings for Peabody Energy Corporation and its subsidiaries, one of which held two of the leases at issue. The environmental groups, the United States Bureau of Land Management, and the Peabody subsidiary and two trade organizations noted in their briefs (supported by Wyoming, which submitted a shorter brief) that the environmental groups and the subsidiary had entered into a stipulation in which the groups agreed to withdraw their request for vacatur of the leases. Since the sole relief sought by the groups was a determination that the federal respondents violated the National Environmental Policy Act, including by failing to consider the leases’ impacts on the amount of carbon dioxide in the atmosphere, the parties agreed that the Tenth Circuit was not required to abate the appeal. WildEarth Guardians v. United States Bureau of Land Management, No. 15-8109 (10th Cir. Nov. 18, 2016 and Dec. 9, 2016).

United States Appealed Takings Liability for Hurricane Katrina Flooding

The United States filed its principal brief in the Federal Circuit Court of Appeals in its appeal of a May 2015 decision of the Court of Federal Claims holding the United States liable for a taking resulting from flooding in Louisiana during and after Hurricane Katrina. The Court of Federal Claims had concluded that federal construction of the Mississippi River-Gulf Outlet (MRGO) navigation channel changed the environment in ways that increased storm surge during Hurricane Katrina, causing a taking. The United States argued that the Court of Federal Claims’ ruling “unmoors takings law from its traditional limits” and “threatens to impose vast and startling liability on the public for damage caused by natural disasters.” The United States further argued that the Court of Federal Claims had erred in concluding that MRGO caused the flooding and that the flooding was foreseeable. St. Bernard Parish Government v. United States, Nos. 16-2301, 16-2373 (Fed. Cir. Dec. 9, 2016).

New York Public Service Commission Asked Federal Court to Dismiss Challenge to Subsidies to Nuclear Generation in State’s Clean Energy Standard

The New York Public Service Commission (PSC) moved to dismiss an action challenging the portion of its Clean Energy Standard (CES) that would compensate certain nuclear power facilities at risk of retiring for the “zero-emission generation” they provide. The PSC argued a preemption cause of action was not available to the plaintiffs under the Federal Power Act and that the preemption claims failed as a matter of law because the CES was a “a straightforward exercise of state authority to regulate generation facilities and their environmental impacts.” The PSC said that the dormant Commerce Clause claim also failed as a matter of law because plaintiffs had not shown discrimination against interstate commerce. The owners of the nuclear facilities that would receive payments under the CES plan moved to intervene and moved to dismiss, largely echoing the PSC’s arguments. The environmental organizations Environmental Defense Fund and Natural Resources Defense Council each filed an amicus brief in support of the PSC’s motion to dismiss. Coalition for Competitive Electricity v. Zibelman, No. 1:16-cv-08164 (S.D.N.Y. Dec. 9, 2016).

ExxonMobil Sought Dismissal of Climate Change Citizen Suit Alleging RCRA and Clean Water Act Violations at Massachusetts Marine Terminal

Exxon Mobil Corporation and two related entities (ExxonMobil) asked the federal district court for the District of Massachusetts to dismiss a citizen suit brought pursuant to the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) in connection with ExxonMobil’s operation of a marine distribution terminal in Massachusetts. ExxonMobil argued that the plaintiff, Conservation Law Foundation (CLF), lacked standing because the climate change impacts alleged by CLF were speculative and too far in the future to satisfy standing requirements. For the same reason, ExxonMobil said that CLF’s allegations failed to allege the “imminent and substantial endangerment” necessary to state a RCRA claim. ExxonMobil also argued that CLF’s climate change-related Clean Water Act claims were jurisdictionally and facially defective because EPA had clearly taken the position that remote and speculative climate change impacts did not need to be considered with respect to NPDES permits, Stormwater Pollution Prevention Plans, and Spill Prevention, Control and Countermeasure (SPCC) plans. In addition, ExxonMobil contended that CLF did not state valid non-climate change Clean Water Act claims. ExxonMobil also said that the court did not have subject matter jurisdiction to consider the claim that the SPCC plans for the terminal should consider climate change because the Clean Water Act’s citizen suit provision did not encompass such a claim. In response to ExxonMobil’s motion to dismiss, CLF asserted that ExxonMobil’s failures to properly disclose and manage risks of discharges caused by climate change resulted in “real and imminent, not exaggerated or uncertain” injuries. CLF contended that it had standing to bring its claims and that it had adequately alleged claims under RCRA and the Clean Water Act. Conservation Law Foundation, Inc. v. Exxon Mobil Corp., No. 1:16-cv-11950 (D. Mass, motion to dismiss Dec. 6, 2016; opposition to motion to dismiss Dec. 20, 2016).

California Sought Penalties for Violations of Low Carbon Fuel Standard

The California attorney general commenced an action against a provider of transportation fuels seeking civil penalties for violations of the State’s Low Carbon Fuel Standard (LCFS) regulations. The complaint alleged that the defendants introduced fuels into California that did not meet LCFS carbon intensity standards, and that the defendants should have obtained credits to offset the fuels’ greenhouse gas emissions. The complaint also alleged that the defendants submitted false information to the California Air Resources Board in compliance reports and other documents. People of State of California ex rel. California Air Resources Board v. Paramount Petroleum Corp., No. BC643285 (Cal. Super. Ct., filed Dec. 9, 2016).

Waterkeeper Asked EPA to Suspend or Debar Exxon, Citing “Willful Misrepresentation” Regarding Climate Change

Waterkeeper Alliance, Inc. (Waterkeeper) submitted a petition to EPA for suspension or debarment of ExxonMobil Corporation and related entities (Exxon) as contractors doing business with the United States. The petition cited and set forth a summary of a “pervasive pattern of deceptive and damaging conduct related to environmental issues generally and climate change issues in particular,” including “willful misrepresentation of climate facts … and harassment of climate scientists.” Waterkeeper also asserted that Exxon had a decades-long history of violating environmental, health, and safety regulatory requirements. Waterkeeper argued that suspension or debarment was warranted based on Exxon’s “pattern of behavior reflecting a lack of business integrity and honesty.” Waterkeeper Alliance, Inc., Petition for Suspension or Disbarment (EPA, submitted Dec. 14, 2016).


Here are recent additions to the Non-U.S. Climate Litigation Chart:

German Court Rejected Peruvian Farmer’s Claim That German Utility Was Liable for Costs of Dealing with Melting Andean Glacier

In November 2015, Saúl Luciano Lliuya, a Peruvian farmer who lives in Huaraz, Peru, filed a claim for damages in a German court against RWE, Germany’s largest electricity producer. Lliuya’s suit alleged that RWE, having knowingly contributed to climate change by emitting substantial volumes of greenhouse gases (GHGs), bore some measure of responsibility for the melting of mountain glaciers near Huaraz, population 120,000. That melting had given rise to an acute threat: Palcacocha, a glacial lake located above Huaraz, had experienced a 30-fold volumetric increase since 1975 and a four-fold increase since 2003. Lliuya based his claim on paragraph 1004 of the German Civil Code, which provides for nuisance abatement and injunctive relief. He asked the court to declare that RWE was partly responsible for the costs arising from the lake’s growth. He also asked the court to order RWE to reimburse him for measures he had already taken to protect his home and to provide a Huaraz community association with €17,000 for the purpose of building siphons, drains, and dams to protect the town. That amount is 0.47 percent of both (a) the estimated cost of protective measures; and (b) RWE’s estimated annual contribution to global GHG emissions.

The court dismissed Lliuya’s requests for declaratory and injunctive relief, as well as his request for damages. Most importantly, the court found no “linear causal chain” linking RWE’s emissions and the danger and costs described by Lliuya. In addition, the court found that the identity of the community association Lliuya identified was “unclear” and agreed with RWE that the claim did not adequately specify to whom €17,000 should be paid. Lliuya v. RWE AG, Case No. 2 O 285/15 Essen Regional Court.

Swedish NGOs Challenged State-Owned Firm’s Sale of Coal and Coal-Burning Assets to Subsidiary of Czech Holding Company

Vattenfall, an energy firm in which the Swedish government owns a controlling stake, has agreed to sell several coal-fired power plants and associated mining assets to the German subsidiary of a Czech holding company. The sale was prompted in part by an environmental review that recommended Swedish divestment. Environmental NGOs and individual plaintiffs have challenged the sale as a violation of the Swedish government’s duty of care to its citizens to protect their right to a non-harmful climate. The plaintiffs’ petition grounds this duty in the Swedish Constitution and Sweden’s adoption of several international agreements—the petition thus resembles submission made in the recent Urgenda decision in the Netherlands. The petition argues that the sale would enable the expanded exploitation of lignite coal assets, resulting in emissions in excess of limits that correspond to climate stability. It further notes that Sweden has committed to act to avoid breaching those limits. On this basis, the plaintiffs have asked the court to declare that 1) the Swedish state has breached its duty of care with the sale, and 2) the sale is illegal. The plaintiffs have also asked the court to order publication of the environmental review conducted in advance of the sale, which the government has so far withheld. As the plaintiffs explain, the only legally permissible approach to Vattenfall’s coal-related assets is to dismantle them in a way that prevents their further contribution to the causes of climate change. PUSH Sweden, Nature & Youth Sweden, et al. v. Government of Sweden (PUSH Sverige, Fältbiologerna et al. v. Sverige regering) (Stockholm District Court Sept. 15, 2016).

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