Climate Case Chart Updates – February 2017


Posted on February 10th, 2017 by Jessica Wentz
 1 comment  

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 CHART SINCE UPDATE #94.

FEATURED CASE

Massachusetts State Court Said Exxon Must Comply with Attorney General’s Civil Investigative Demand Seeking Climate Change Information

A Massachusetts Superior Court denied ExxonMobil Corporation’s (Exxon’s) motion to set aside a civil investigative demand (CID) issued by the Massachusetts attorney general seeking information on Exxon’s study of carbon dioxide emissions and their effect on climate change. The court also denied Exxon’s request that it stay its adjudication of the motion pending the resolution of the federal lawsuit brought by Exxon in Texas against the attorney general in which Exxon sought to bar enforcement of the CID. The Superior Court said that Massachusetts state courts would be more familiar with the state consumer protection act pursuant to which the CID was issued and further noted that the statute directed challenges to CID be brought in state court. The court concluded that it had personal jurisdiction over Exxon, finding that Exxon’s due process rights were not offended given its establishment of “minimum contacts” in Massachusetts. The court also said that the state consumer protection act would provide “hollow protection against non-resident defendants” if the court did not assert jurisdiction. The court also found that Exxon had not met its burden of showing that the attorney general acted arbitrarily and capriciously in issuing the CID, indicating her concerns regarding potential misrepresentations to Massachusetts consumers justified the CID. The court was not swayed by Exxon’s argument that it was being subjected to viewpoint discrimination for its views on global warming. The court also rejected Exxon’s arguments that the CID lacked the requisite specificity and was unreasonably burdensome. In addition, the court denied Exxon’s request for disqualification of the attorney general and appointment of an independent investigator. The court noted that the attorney general’s public remarks at a March 2016 press conference with other attorneys general did not evidence actionable bias and that her comments did nothing more than explain her reasons for the investigation to the consumers she represents. The court granted the attorney general’s request to compel Exxon to respond to the CID. In re Civil Investigative Demand No. 2016-EPD-36, No. 2016-1888-F (Mass. Super. Ct. Jan. 11, 2017).


DECISIONS AND SETTLEMENTS

Ninth Circuit Affirmed Dismissal of Constitutional Challenge to Automatic Enrollment Procedures for Seller of Cleaner Power

In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed dismissal of an electricity customer’s constitutional claims concerning Sonoma Clean Power Authority’s (SCPA) procedure for automatically enrolling customers. SCPA is a not-for-profit public agency run by municipalities in northern California; it says it provides “cleaner electricity at a competitive rates from sources like solar, wind, geothermal and hydropower.” The Ninth Circuit said the customer’s First Amendment claims for compelled contribution to speech and compelled association or disassociation failed because “he has not been compelled to do anything.” The Ninth Circuit said that a Fourteenth Amendment economic substantive due process claim would fail even if the automatic enrollment procedures constituted a deprivation of the plaintiff’s liberty interest in contracting with the other electricity service provider because the government’s goals in establishing the regulatory framework in which SCPA operated—including reducing greenhouse gas emissions and reducing energy consumption—were legitimate legislative purposes. Schmid v. Sonoma Clean Power, No. 14-17288 (9th Cir. Jan. 23, 2017).

D.C. Circuit Upheld EPA Authorization of Argentine Biofuel Producers’ Use of Alternative Plan for Complying with Renewable Fuel Land Use Requirements

The D.C. Circuit Court of Appeals dismissed a challenge by a U.S. biofuel industry trade association to a U.S. Environmental Protection Agency (EPA) decision allowing Argentine biofuel producers to use alternative recordkeeping procedures to show that their products sold in the U.S. complied with Renewable Fuel Standard requirements intended to ensure that biofuel production does not result in land use changes such as deforestation that would exacerbate greenhouse gas emissions. The D.C. Circuit said that the trade association’s challenge of the 2010 regulations establishing the alternative recordkeeping program was untimely. The D.C. Circuit also concluded that EPA’s authorization of the alternative procedures “comports with agency regulations and rests upon the kind of highly technical judgments to which we owe agencies great deference.” National Biodiesel Board v. EPA, No. 15-1072 (D.C. Cir. Dec. 20, 2016).

Texas Federal Court Halted TransCanada’s Challenge to Denial of Keystone Pipeline Permit After President Trump Invited New Application

After President Trump issued a presidential memorandum inviting TransCanada Keystone Pipeline, LP (TransCanada) to re-apply for State Department approval of the Keystone XL pipeline, the federal district court for the Southern District of Texas abated TransCanada’s challenge to the Obama administration’s denial in November 2015 of a presidential permit for the pipeline’s cross-border facilities. The presidential memorandum directed the State Department to reach a final decision on the permit within 60 days of TransCanada’s resubmission of its application. TransCanada resubmitted the application on January 26, 2017. Finding that the State Department’s decision could render TransCanada’s claims moot, the court abated the action for 90 days (until May 1, 2017) to allow TransCanada time to obtain the State Department’s decision. The court indicated it would reinstate the case after the 90 days expired and adjudge any remaining issues. TransCanada Keystone Pipeline, LP v. Kerry, No. 4:16-cv-00036 (S.D. Tex. Jan. 30, 2017).

Oregon Federal Court Said That Secretary of State-Designate Tillerson Was Not Required to Appear for Deposition in Young People’s Climate Lawsuit

In the lawsuit brought by young people asserting that the federal government’s actions and inaction led to increased carbon dioxide emissions and violated their constitutional rights, the federal district court for the District of Oregon denied the plaintiffs’ motion to compel the intervenor-defendant trade groups to make Rex Tillerson available for a deposition. Tillerson, now Secretary of State, is the former chairman and chief executive officer of Exxon Mobil Corporation (Exxon); at the time the plaintiffs served a notice of deposition for Tillerson, he was also a member of the Executive Committee of the Board of Directors of defendant-intervenor  American Petroleum Institute (API). Tillerson left Exxon and the API board after President Trump nominated him as Secretary of State. The court said the intervenor-defendants—API, National Association of Manufacturers, and American Fuel & Petrochemical Manufacturers—were not obligated to produce Tillerson for a deposition because he was no longer affiliated with them. In other developments, the federal defendants filed their answer a week before President Obama left office. The answer included admissions regarding factual allegations of climate change’s impacts, but the federal defendants denied that they had caused climate change or specific climate change impacts such as increased temperatures, drought conditions, warmer water temperatures, rising sea levels, and ocean acidification. The intervenor-defendants filed their answer a month earlier than the federal defendants. The intervenors’ answer denied most of the complaint’s factual allegations, including those related to climate change impacts, on the ground that the intervenors lacked sufficient information to admit or deny them. Juliana v. United States, No. 6:15-cv-01517 (D. Or. defendant-intervenors’ answer Dec. 15, 2016; federal defendants’ answer Jan. 13; order denying motion to compel Jan. 27, 2017).

Montana Federal Court Kept NEPA Challenges to Wyoming and Montana Resource Management Plans in One Court

The federal district court for the District of Montana declined to sever National Environmental Policy Act (NEPA) claims concerning a resource management plan (RMP) for a field office in Wyoming from an action that also concerned an RMP for a Montana field office. The court said that while there was “great benefit in local controversies being decided at home,” other factors tilted slightly in favor of considering the claims together, citing the deference owed to plaintiffs’ choice of forum. The plaintiffs—a collection of environmental groups—contended that the United States Bureau of Land Management’s NEPA review for the RMPs was insufficient because it failed to consider reasonable alternatives that would allow less coal leasing, failed to consider an alternative requiring reasonable and cost-effective mitigation of methane emissions from oil and gas development, failed to address indirect impacts from downstream combustion of fossil fuels, omitted discussion of the “breadth and scale” of greenhouse gas emissions, failed to take a hard look at methane pollution, and failed to consider cumulative air impacts. Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 4:16-cv-00021-BMM (D. Mont. Jan. 25, 2017).

Wyoming Federal Court Expressed Concerns About BLM Methane Rule But Denied Preliminary Injunction

On January 16, 2017, a Wyoming federal court declined to issue a preliminary injunction staying the effective date of the United States Bureau of Land Management’s (BLM’s) final rule related to the reduction of waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on federal and Indian lands. The rule went into effect on January 17, 2017. It has been identified by congressional Republicans as one of the regulations they would like to use the Congressional Review Act to overturn; the House of Representatives approved a resolution to repeal the rule on February 3, 2017. The court found that the petitioners had not shown a “clear and unequivocal right to relief” because the court was unable to conclude that the rule’s provisions “lack a legitimate, independent waste prevention purpose or are otherwise so inconsistent with the [Clean Air Act] as to exceed BLM’s authority and usurp that of the EPA, states, and tribes.” Though the court questioned whether the “social cost of methane” was an appropriate factor to consider in issuing a “resource conservation rule” pursuant to the Mineral Leasing Act, the court said it could not conclude “at this point” that the rule was arbitrary and capricious. The court also found that the petitioners had not established that irreparable injury was likely. The court noted, however, that a preliminary injunction would not necessarily have been adverse to the public’s interest in resource conservation and air quality since BLM already had other waste prevention regulations in place and a preliminary injunction would “sidestep the costly implementation of duplicative and potentially unlawful regulations.” Wyoming v. United States Department of the Interior, Nos. 2:16-CV-0285-SWS, 2:16-CV-0280-SWS (D. Wyo. Jan. 16, 2017).

New Mexico Federal Court Allowed Lawsuit Seeking Quarterly Federal Mineral Lease Sales to Proceed, Denied Environmental Groups’ Motion to Intervene

The federal district court for the District of New Mexico denied a motion to dismiss a lawsuit brought by Western Energy Alliance (WEA) claiming that BLM violated the Mineral Leasing Act by failing to hold lease sales at least quarterly. The court rejected the federal defendants’ arguments that WEA had not met the requirements for associational standing, had not shown injury-in-fact, and had alleged only injuries that were not traceable or redressable. The court also concluded that WEA’s action was not an impermissible programmatic challenge. In a separate opinion, the court denied environmental groups’ motion to intervene, saying that the groups had not shown that their interests would be impeded by the litigation or that their interests could not be adequately represented by existing parties. The groups filed a notice of appeal on January 17, 2017. Western Energy Alliance v. Jewell, No. 1:16-cv-00912 (D.N.M. mem. op. & order on motion to dismiss and mem. op. & order on motion to intervene Jan. 13, 2017; notice of appeal Jan. 17, 2017).

West Virginia Federal Court Ordered EPA to Complete Clean Air Act Jobs Analysis by July; Murray Energy Sought $3.9 Million in Fees

The federal district court for the Northern District of West Virginia issued its final order in Murray Energy Corporation v. McCarthy, the lawsuit in which Murray Energy and affiliated companies successfully sought to compel EPA to undertake evaluations of the Clean Air Act’s employment impacts. After the court ruled in October 2016 that EPA had not fulfilled its mandatory duty to undertake such evaluations, EPA proposed a plan under which it would begin by undertaking an approximately two-year consultation with its Science Advisory Board. The court’s final order called EPA’s plan “wholly insufficient, unacceptable, and unnecessary” and said that the plan “evidence[d] the continued hostility on the part of the EPA to acceptance of the mission established by Congress” in Section 321(a) of the Clean Air Act. The court ordered EPA to submit an evaluation of the coal industry and other entities affected by Clean Air Act regulations no later than July 1, 2017. The court directed that the evaluation include specific components, including identification of facilities at risk of closing or reducing their workforce, information about the number of employees potentially affected and communities impacted, identification of coal mines or coal-fired power generators that had closed or reduced employment since January 2009 and analysis of whether administration or enforcement of the Clean Air Act contributed to the closures and workforce reductions, and identification of subpopulations at particular risk of being affected. The court also directed EPA to submit evidence by December 31, 2017 that the Agency had adopted measures to continuously evaluate the loss and shifts in employment caused by implementation of the Clean Air Act. The court concluded, however, that it lacked jurisdiction to grant the plaintiffs’ request that it bar EPA from proposing or finalizing regulations that affect the coal industry until it complied with the court’s orders. Because it had denied this relief, the court also denied as moot a motion to intervene by several West Virginia-based environmental organizations that had sought to resist an injunction on EPA rulemaking. The groups filed notice that they would appeal the denial of their motion. Two weeks after the court’s final order, Murray Energy filed a motion seeking approximately $3.9 million in fees under Clean Air Act Section 304(d). The fees sought included expert witness fees, attorney fees, and other disbursements. The court denied the motion without prejudice to renew it after resolution of EPA’s appeal of the final order. Murray Energy Corp. v. McCarthy, No. 5:14-CV-39 (N.D. W. Va. final order Jan. 11, 2017; order denying intervention Jan. 17, 2017; motion for fees Jan. 25, 2017; order on fees motion Feb. 2, 2017).

Federal Magistrate Recommended Dismissal of Challenge to Bull Trout Recovery Plan, Including Claims of Failure to Address Climate Change

A federal magistrate judge in the District of Oregon recommended that a citizen suit challenging the Recovery Plan for the Coterminous United States Population of Bull Trout be dismissed. The magistrate judge agreed with the federal defendants that the challenged aspects of the plan, including the alleged failure to address the effects of climate change on cold water habitat, were discretionary and therefore not subject to challenge under the Endangered Species Act’s citizen suit provision. Friends of the Wild Swan v. Thorson, No. 3:16-cv-00681-AC (D. Or. Jan. 5, 2017).

Connecticut Supreme Court Said State Energy Strategy Did Not Require Environmental Review

The Connecticut Supreme Court affirmed a trial court’s ruling that the Connecticut Environmental Policy Act (CEPA) did not require preparation of an environmental impact evaluation (EIE) for a comprehensive energy strategy issued by the Department of Energy and Environmental Protection in 2013. A trade association of energy marketers that sold gasoline and heating fuel to residential and commercial customers had argued that the strategy—which provided for increased capacity of natural gas infrastructure in the state—would exacerbate global warming by increasing the amount of methane-containing natural gas emitted into the atmosphere and was subject to CEPA. The Supreme Court said that the strategy was not an “action which may significantly affect the environment” requiring an EIE because private entities, not state agencies, would undertake and fund the activities, including construction of new gas pipelines, that allegedly would have a major impact on the environment. Connecticut Energy Marketers Association v. Department of Energy & Environmental Protection, No. SC 19620 (Conn. Dec. 29, 2016).

New York Court Rejected Pipeline Protesters’ Justification Defense

A New York Justice Court found nine protesters who blocked the driveway of a parking lot used by workers constructing a natural gas pipeline project guilty of disorderly conduct. The court rejected the protesters’ “justification” defense, finding that their conduct was not “necessary” to avoid “imminent” injury to the public. The court said that the defendants—who said they believed the pipeline project was dangerous and/or harmful to the environment, with most of them citing climate change—had based their defense “primarily on subjective and speculative personal views and opinions.” The court also rejected a First Amendment defense, saying that the defendants were offered opportunities to continue their protests “if only they would move a few feet either to the north or to the south along the sidewalk rather than blocking vehicular traffic in and out of the driveways.” People of New York v. Bucci, No. 15110186 (N.Y. Justice Ct. Dec. 1, 2016).

Connecticut Court Cited Adaptation to Increased Flooding, Climate Change as Valid Rationales for Zoning Change

A Connecticut state court rejected an argument that the City of Stamford Zoning Board did not include sufficient reasons for changes to the definition of building height in zoning regulations for areas within the city’s Coastal Boundary. The court noted that a City staff report contained “a clear rationale for the appropriateness, indeed necessity, for the regulation of the elevation of residential buildings in order to protect against coastal flooding.” The report said that the zoning amendment was an “appropriate and measured response to climate change and expected increases in coastal flooding.” The court said such a purpose was “reasonably and rationally related to one of the principal purposes of zoning.” Murphy v. Zoning Board of City of Stamford, No. FSTCV145014294S (Conn. Super. Ct. Nov. 16, 2016).

EPA Denied Rulemaking Petition Seeking Water Quality Criteria to Address Ocean Acidification

In December 2016, EPA denied a 2013 rulemaking petition from the Center for Biological Diversity (CBD) asking EPA to promulgate water quality criteria for ocean acidification. CBD also asked EPA to issue guidance that included information on factors necessary to prevent dangerous changes in seawater chemistry caused by anthropogenic carbon dioxide emissions. EPA declined to take these actions, saying that it had decided to prioritize other actions that it believed would have greater utility in addressing ocean acidification, including allocating resources to states and territories to assist them in understanding and mitigating ocean acidification in near-shore coastal and estuarine waters. EPA Letter to Center for Biological Diversity (Dec. 14, 2016).

NEW CASES, MOTIONS, AND NOTICES

Environmental Groups Argued Against Certiorari for Polar Bear Critical Habitat Designation

Environmental groups filed a brief opposing petitions seeking U.S. Supreme Court review of the Ninth Circuit’s decision upholding the designation of critical habitat for polar bears. The groups defended the designation’s compliance with the Endangered Species Act and said that the petitioners had made policy arguments that misconstrued or ignored facts, including facts related to the need for a large area to be designated. State of Alaska v. Jewell, No. 16-596 (U.S. Jan. 6, 2017).

Department of Energy Defended Authorization of LNG Exports from Gulf Coast Facilities

In two briefs submitted to the D.C. Circuit Court of Appeals, the U.S. Department of Energy (DOE) defended its review of the potential environmental impacts of the export of liquefied natural gas (LNG) from terminals in Louisiana and Texas. In both briefs, DOE argued that it had taken a hard look at the impacts of export-induced gas production, induced domestic coal consumption, and the climate impacts of induced gas production. DOE also said that it had complied with the Natural Gas Act and that its conclusion that LNG export’s benefits would outweigh potential environmental harms was reasonable. Sierra Club v. United States Department of Energy, No. 16-1252 (D.C. Cir. Jan. 30, 2017). Sierra Club v. United States Department of Energy, No. 16-1253 (D.C. Cir. Jan. 30, 2017).

Clean Power Plan Opponents Launched Challenges to EPA’s Denial of Requests for Reconsideration

Twenty states and state agencies, as well as utilities, utility trade groups, the National Association of Home Builders, and the coal company Murray Energy Corporation, filed petitions for review in the D.C. Circuit of Appeals to challenge EPA’s denial of petitions for reconsideration of the Clean Power Plan regulations. Notice of EPA’s denial of the petitions was published in the January 17, 2017 issue of the Federal Register. The petitioners said that they would show that the final regulations were in excess of EPA’s authority and were arbitrary, capricious, an abuse of discretion, and not in accordance with law. On January 27, 2017, a group of 17 states and seven municipalities moved to intervene as respondents. West Virginia v. EPA, Nos. 17-1014, 17-1015, 17-1018, 17-1019, 17-1020, 17-1022, 17-1023, 17-1031 (D.C. Cir.).

Final Briefs Filed in Challenges to Greenhouse Gas Standards for New Power Plants

Opponents of EPA’s new source performance standards (NSPS) for greenhouse gas emissions from fossil fuel-fired power plants filed their reply briefs in the D.C. Circuit Court of Appeals. Oral argument was scheduled for April 17, 2017. The group of 24 states opposing the NSPS argued that EPA had misstated the legal standard for determining whether the “best system of emissions reduction” (BSER) was adequately demonstrated and that the record did not support EPA’s determination that the BSER was adequately demonstrated when the correct legal standard was applied. The states also said that any ambiguity should be resolved in the states’ favor because energy policy was an area of traditional state concern and that EPA had failed to reasonably consider costs and benefits had failed to make required findings. In a separate brief, North Dakota reiterated its argument that EPA’s failure to separately regulate power plants fired by lignite coal made the standards invalid. Non-state petitioners argued that the BSER was not adequately demonstrated, that the BSER improperly relied on off-site unregulated parties, and that EPA’s “achievability” analysis was flawed because it did not examine what coal-fired steam units could achieve. The non-state petitioners also argued that requiring coal-fired plants but not gas-fired plants to use carbon capture and sequestration constituted unlawful disparate treatment. North Dakota v. EPA, Nos. 15-1381 et al. (D.C. Cir. Jan. 23, 2017).

Trade Associations Challenged Refrigerant Management Requirements

Two trade associations filed petitions for review challenging EPA’s updates to refrigerant management requirements under the Clean Air Act. The regulations were published in the Federal Register on November 18, 2016 and went into effect on January 1, 2017. EPA said that the updates—which include strengthened leak repair requirements and recordkeeping requirements for the disposal of appliances containing more than five and less than 50 pounds of refrigerant—would result in reduced emissions of ozone-depleting substances and gases with high global warming potentials. National Environmental Development Association’s Clean Air Project v. EPA, No. 17-1016 (D.C. Cir., filed Jan. 17, 2017); Air Permitting Forum v. EPA, No. 17-1017 (D.C. Cir., filed Jan. 17, 2017).

D.C. Circuit to Consider Challenges to EPA Methane Standards for Oil and Gas Sector Alongside Earlier Challenges to 2012 Standard

The D.C. Circuit Court of Appeals granted EPA’s request that it consolidate challenges to EPA’s 2016 methane standards for the oil and gas sector with earlier challenges to the 2012 new source performance standards (NSPS) for the sector and a 2014 rule in response to petitions for reconsideration of the 2012 NSPS. The court said that it would not bifurcate the issues to be addressed in the proceedings.  The court severed and placed in a new docket (No. 16-1425) environmental groups’ challenge to the 2012 NSPS, which the groups filed to argue that EPA was required to determine whether methane regulation was appropriate and to move forward with methane standards for the oil and gas sector under Section 111 of the Clean Air Act. The groups had asked that their petition be severed since it could be rendered moot by a decision upholding the 2016 methane standards but said that their claims could become relevant again if the court struck down the methane standards. American Petroleum Institute v. EPA, Nos. 13-1108 et al. (D.C. Cir. Jan. 4, 2017).

Challenges Filed to Greenhouse Gas-Fuel Efficiency Standards for Medium- and Heavy-Duty Vehicles

In December 2016, Truck Trailer Manufacturers Association, Inc. (TTMA) and the Racing Enthusiasts and Suppliers Coalition filed petitions for review in the D.C. Circuit Court of Appeals challenging EPA and the National Highway Traffic Safety Administration’s greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles. The TTMA said that it sought review on the grounds that the regulations exceeded respondents’ authority, were contrary to the Clean Air Act and Energy Independence and Security Act, and were arbitrary, capricious, and otherwise contrary to law. The TTMA asked the court to set aside the provisions of the standards that were applicable to trailers. In January 2017, Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, and Union of Concerned Scientists moved to intervene on EPA’s behalf, arguing that they had a “demonstrable interest” in defending the standards on behalf of their members, to whom the standards’ health, environmental, and economic benefits would accrue. Truck Trailer Manufacturers Association, Inc. v. EPA, No. 16-1430 (filed Dec. 22, 2016); Racing Enthusiasts and Suppliers Coalition v. EPA, No. 16-1447 (D.C. Cir., filed Dec. 27, 2016).

Briefing Completed on New York’s Motion to Dismiss Challenge to Its Zero Emissions Credits for Nuclear Power Plants

The parties to a challenge to New York’s plan to give certain nuclear power plants “zero-emission credits” (ZECs) completed their briefing on the motion to dismiss the challenge. The ZECs program, approved by the New York State Public Service Commission (PSC) in 2016, is intended to serve as “bridge to a 50-percent-renewable energy supply” by 2030. The program’s challengers—owners of fossil fuel-fired power plants—argued that the federal district court for the Southern District of New York had equity jurisdiction over their claim that the Federal Power Act preempted the PSC’s action. The plaintiffs also asserted that their complaint stated claims that the ZECs program was both field preempted and conflict preempted. The plaintiffs also argued that they had stated a claim of violation of the dormant Commerce Clause. The PSC defendants argued that their action was not preempted because it fell within the field of regulation reserved to the states in the Federal Power Act. They also reasserted that the plaintiffs had no private cause of action for their preemption claim and had failed to state a dormant Commerce Clause Claim. The beneficiaries of the ZECs program—owners of nuclear facilities—submitted a reply brief reiterating that the plaintiffs’ preemption and dormant Commerce Clause claims should fail. Coalition for Competitive Electricity v. Zibelman, No. 1:16-cv-08164 (S.D.N.Y. Jan. 6 and 27, 2017).

Parties Said They Would Appeal Portland’s Restrictions on Fossil Fuel Terminals

The Columbia Pacific Building Trades Council, the Portland Business Alliance, and the Western States Petroleum Association filed notice of their intent to appeal the City of Portland’s enactment of an ordinance directing adoption of zoning amendments that prohibited new bulk fossil fuel terminals and limited the expansion of existing terminals. The notice was filed in the Oregon Land Use Board of Appeals. In the ordinance, the City found that extraction and combustion of fossil fuels were significant sources of greenhouse gas emissions and major contributors to climate change and pollution, and that the amendments were consistent with local and statewide planning goals and also with local and statewide climate change and public safety objectives. Environmental and public health groups moved to intervene on the City’s behalf. Columbia Pacific Building Trades Council v. City of Portland, LUBA No. 2017-001 (Or. LUBA, filed Jan. 4, 2017; motion to intervene Jan. 25, 2017).

Rural Counties Challenged Federal Coal Leasing Moratorium in Utah Federal Court

Two rural Utah counties and a nonprofit group of which they and other rural counties were members filed a lawsuit in federal court challenging the Secretary of the Interior’s order that imposed a moratorium on federal coal leasing while BLM prepared a programmatic environmental impact statement (EIS) addressing climate change. The plaintiffs asserted that the moratorium was arbitrary and capricious, an abuse of discretion, and contrary to law in violation of the Administrative Procedure Act (APA). The plaintiffs also contended that the defendants violated the APA by failing to prepare an EIS prior to implementing the moratorium. Kane County, Utah v. Jewell, No. 2:16-cv-01211 (D. Utah, filed Nov. 30, 2016).

Two Lawsuits Filed Challenging CEQA Analysis of Greenhouse Gas Impacts for Amendment to San Diego County General Plan

Two local environmental organizations challenged San Diego County’s approval of a “Forest Conservation Initiative Amendment” to the County’s general plan. The Amendment applied to more than 70,000 acres of the Cleveland National Forest. The petitioners alleged that the Amendment would have “devastating, long-term consequences” for San Diego’s backcountry and would result in increased greenhouse gas emissions. They asserted that the County had failed to comply with the California Environmental Quality Act (CEQA), including by improperly relying on guidance issued in July 2016 to conduct the analysis of greenhouse gas impacts instead of relying on thresholds set forth in a legally adequate Climate Action Plan (which the County had not adopted). They also asserted that the County’s analysis had relied on statewide per-person greenhouse gas goals necessary to achieve statewide goals, “without substantial evidence that they are relevant to projects in San Diego County” and that the environmental impact report (EIR) did not provide substantial evidence to support the emissions disclosed. In addition, the petitioners said that the County had failed to adopt feasible mitigation measures to address the Amendment’s significant greenhouse gas impacts. The petitioners further alleged that the Amendment violated the California Planning and Zoning Law because it was inconsistent with the County’s general plan, which required that evaluation of greenhouse gas impacts be based on a Climate Action Plan. Cleveland National Forest Foundation v. County of San Diego, No. 37-2017-00001635-CU-TT-CTL (Cal. Super. Ct., filed Jan. 13, 2017).

Sierra Club also filed a CEQA challenge to the Forest Conservation Initiative Amendment to the San Diego County general plan. Like the local environmental organizations, Sierra Club contended that the County had relied on unlawfully adopted guidance in its analysis of greenhouse gas impacts, instead of on greenhouse gas thresholds established in a Climate Action Plan. A 2011 update to the general plan included a mitigation measure requiring preparation of a Climate Action Plan with greenhouse gas emission reduction targets and deadlines. Sierra Club alleged that the County’s approval of the Amendment violated CEQA because it was allowing new development without having implemented the required mitigation measure. Sierra Club noted that it had filed a lawsuit in 2016 challenging the greenhouse gas guidance and the prospective adoption of general plan amendments. Sierra Club v. County of San Diego, No. 37-2017-00001635-CU-TT-CTL (Cal. Super. Ct., filed Jan. 13, 2017).

Group Challenged San Diego’s Removal of Bridge Project from Planning Document

A nonprofit group filed a lawsuit challenging the CEQA review for the City of San Diego’s removal of a bridge project from a community plan. The group said that the CEQA review failed to adequately disclose and analyze environmental impacts, including significant adverse impacts on greenhouse gas emissions. Citizens for the Regents Road Bridge, Inc. v. City of San Diego, No. 37-2017-00000453-CU-TT-CTL (Cal. Super. Ct., filed Jan. 5, 2017).

Nonprofit Groups Cited CEQA Violations in Challenge to San Diego’s Update to Community Plan

Two nonprofit groups filed a lawsuit in California Superior Court challenging the City of San Diego’s approval of a community plan update. The groups alleged that the City had not complied with the procedural or substantive requirements of CEQA. The groups cited numerous shortcomings in the final environmental impact report, including failure to adequately assess climate change impacts. The groups also asserted that the updatewas inconsistent with the City’s Climate Action Plan. Mission Hills Heritage v. City of San Diego, No. 37-2017-00000295 (Cal. Super. Ct., filed Jan. 4, 2017).

CEQA Challenge Filed to San Diego Development Projects

A San Diego resident and an unincorporated association filed a challenge to the City of San Diego’s approval of two development projects—a 60-story mixed-use building and a 20-story hotel tower. The petitioners alleged that the respondents had erroneously concluded that the project would have insignificant impacts on greenhouse gas emissions. They also said the projects would undermine the City’s “highly-touted” Climate Action Plan. Gonzalez v. City of San Diego, No. 37-2016-0042702-CU-TT-CTL (Cal. Super. Ct., filed Dec. 6, 2016).

One comment

  1. The court also found that Exxon had not met its burden of showing that the attorney general acted arbitrarily and capriciously in issuing the CID, indicating her concerns regarding potential misrepresentations to Massachusetts consumers justified the CID.

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