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 #95.
Lawsuit Filed Seeking Temperature TMDL for Rivers in Pacific Northwest
Environmental and conservation groups and a trade association for commercial fishermen filed a lawsuit in the federal district court the Western District of Washington seeking a declaratory judgment that EPA violated the Clean Water Act by failing to issue a total maximum daily load (TMDL) for temperature pollution in the Columbia and Snake Rivers in Oregon and Washington. The plaintiffs also asked the court to order EPA to promptly prepare a temperature TMDL. The complaint alleged that multiple segments of the rivers were on Oregon’s and Washington’s Section 303(d) lists of impaired waters because they failed to meet temperature water quality criteria intended to protect salmon and steelhead spawning, rearing, and migration. The complaint also alleged that the high water temperatures—for which dams were largely responsible—were expected to worsen due to continuing climate change. The complaint asserted that EPA had agreed to issued a temperature TMDL in a 2000 agreement with Oregon and Washington but had subsequently failed to issue a final TMDL. The plaintiffs alleged that the states had “clearly and unambiguously expressed their intent not to prepare or submit” TMDLs, thereby triggering EPA’s duty to issue the TMDL. The plaintiffs also said that failure to issue the temperature TMDL constituted unreasonable delay under the Administrative Procedure Act. Columbia Riverkeeper v. Pruitt, No. 2:17-cv-00289 (W.D. Wash., filed Feb. 23, 2017).
DECISIONS AND SETTLEMENTS
Ninth Circuit Denied Rehearing of Decision Upholding Threatened Status for Bearded Seal
The Ninth Circuit Court of Appeals denied rehearing en banc of its decision reinstating the listing of a distinct population segment of the Pacific bearded seal subspecies as threatened. The Ninth Circuit upheld the listing in October 2016, reversing an Alaska district court. The Ninth Circuit said that the National Marine Fisheries Service had reasonably relied on loss of sea ice cause by global climate change over the next 50 to 100 years as basis for the listing. Alaska Oil & Gas Association v. Pritzker, Nos. 14-35806 & 14-35811 (9th Cir. Feb. 22, 2017).
Federal Court Rejected Climate Change Cumulative Effects Argument in Decision Upholding Canada Lynx Incidental Take Permit
The federal district court for the District of Maine upheld an incidental take permit granted by the U.S. Fish and Wildlife Service (FWS) to the Maine Department of Inland Fisheries and Wildlife to exempt Maine from liability for incidental takes of Canada lynx resulting from state-regulated trapping programs. The court found that FWS’s actions “were in keeping with” requirements of the Endangered Species Act and the National Environmental Policy Act (NEPA). The court rejected an argument that FWS should have prepared an environmental impact statement because the environmental assessment (EA) for the incidental take permit concluded that there would be significant cumulative effects, including from climate change. The court said this characterization of the EA’s conclusion was not correct. Friends of Animals v. Phifer, No. 1:15-cv-00157 (D. Maine Feb. 15, 2017).
California Supreme Court Declined to Take Up CEQA Challenge to New Golden State Warriors Arena
The California Supreme Court denied a petition seeking review of a lower appellate court’s decision upholding the review conducted under the California Environmental Quality Act (CEQA) for a development project in San Francisco that included a new arena for the National Basketball Association’s Golden State Warriors. The California Court of Appeals had rejected challenges to analysis used to evaluate the project’s impacts on climate change impacts. Mission Bay Alliance v. Office of Community Investment & Infrastructure, No. S239371 (Cal. Jan. 17, 2017).
Oklahoma Supreme Court Stayed Enforcement of Order Requiring Oklahoma Attorney General to Produce Documents Regarding Scott Pruitt’s Industry Ties
The Oklahoma Supreme Court stayed enforcement of a trial court order that directed the Oklahoma attorney general to respond to requests under the Oklahoma Open Records Act (ORA) for records regarding alleged industry ties of former Oklahoma Attorney General Scott Pruitt. As Oklahoma attorney general, Pruitt challenged a number of EPA regulations, including the Clean Power Plan. The ORA lawsuit was filed after Pruitt’s nomination as EPA administrator. The plaintiff was Center for Media and Democracy, which submitted seven records requests between January 2015 and January 2017. The attorney general’s office acknowledged receipt of each request, but responded only to say that it continued to review the potentially responsive documents and was limited in its ability to respond because it had received so many other ORA requests. On February 16, 2017, the day before Pruitt’s confirmation as EPA administrator, the trial court issued an order finding that for the documents requested in January 2015 there had been an “abject failure to provide prompt and reasonable access.” The court ordered that those documents be produced by February 21. The trial court also ordered the Oklahoma attorney general to produce documents in response to requests made between November 2015 and August 2016 within 10 days. The Oklahoma attorney general produced documents responsive to the January 2015 request but asked the Oklahoma Supreme Court for an emergency stay of the remainder of the order, arguing that the trial court had in effect granted the plaintiff partial summary judgment sua sponte, without allowing the attorney general a meaningful opportunity to be heard. The Oklahoma Supreme Court did not comment on the merits of the attorney general’s appeal in its order granting the stay. Center for Media & Democracy v. Pruitt, No. CV 2017-223 (Okla. Dist. Ct., filed Feb. 7, 2017; order Feb. 16, 2017); Center for Media & Democracy v. Hunter, No. 115,796 (Okla. emergency motion for stay Feb. 23, 2017; order Feb. 28, 2017).
South Coast Air Quality Management District and Southern California Gas Reached Settlement Over Aliso Canyon Natural Gas Leak
Southern California Gas Company (SoCalGas), the owner of the Aliso Canyon Natural Gas Storage Facility that experienced a natural gas leak beginning in October 2015, reached a settlement with the South Coast Air Quality Management District (SCAQMD) to resolve claims by SCAQMD related to the leak. SoCalGas agreed to pay the SCAQMD $8.5 million, including $1 million to fully fund a health study, $5.650 million for annual emissions fees, $1.6 million for air quality monitoring costs incurred by SCAQMD, and $250,000 for legal fees and costs. One million dollars of the emissions fees were to fund a project in conjunction with a company that produces fuel from biosolids or, if an agreement could not be reached with that company, to fund another clear air technology project. People of State of California ex rel. South Coast Air Quality Management District v. Southern California Gas Co., No. BC608322 (Cal. Super. Ct. Feb. 7, 2017).
Mistrial Followed Washington Trial Court’s Rejection of Necessity Defense in Climate Protester Case
In January, a Washington trial court denied a request by a defendant to use the necessity defense against charges of burglary and criminal sabotage in connection with his breaking into a Trans Mountain oil pipeline facility and turning off a valve to shut off the pipeline. The court was reported to have said that the necessity defense standard required the threat posed “to have some immediacy, some imminence, more so than this particular threat and harm, which is climatic change, global warming, whatever.” On February 1, the court declared a mistrial after a jury was unable to reach a verdict. The defendant said that he took the actions “because I believe that it is the obligation of every thinking person to find a way to stave off climate cataclysm, and there is no effective, legal alternative to personal direct action.” The charges were refiled later in February. The defendant again pleaded not guilty on February 17, 2017. People v. Ward, No. __ (Wash. Super. Ct.).
NEW CASES, MOTIONS, AND NOTICES
North Carolina Withdrew from Litigation Challenging to Clean Power Plan
After the election of Democrat Roy Cooper as governor, the North Carolina Department of Environmental Quality moved to withdraw as a petitioner from the litigation challenging EPA’s Clean Power Plan. West Virginia v. EPA, No. 15-1363 (D.C. Cir. Feb. 23, 2017).
EPA Argued for Reversal of West Virginia District Court’s Order Requiring Agency to Evaluate Clean Air Act Employment Impacts; District Court Partly Denied Request to Extend Compliance Deadlines
The United States Environmental Protection Agency (EPA) and would-be intervenor environmental groups filed their principal briefs in their Fourth Circuit appeals of a West Virginia district court’s orders requiring EPA to evaluate the impact of Clean Air Act implementation and enforcement on employment, including in the coal industry. The court also had denied the environmental groups’ motion to intervene as moot because the court had not granted the nationwide injunction on new air regulations that the plaintiffs sought and that the environmental groups wished to oppose. The district court ruled that EPA had failed to conduct such evaluations and had therefore violated Section 321(a) of the Clean Air Act. In its principal brief, EPA argued that the district court lacked jurisdiction because Section 321(a) did not impose a non-discretionary duty. EPA also argued that the coal company Murray Energy Corporation and its co-plaintiffs’ (Murray Energy) failed to establish Article III standing and that the court erred in finding that a collection of documents prepared by EPA “in the normal course of business” had not complied with Section 321(a). EPA also contended that the district court exceeded its remedial power by issuing a “detailed injunction” that imposed obligations on EPA that had no basis in the statute. The environmental groups argued in their brief that their motion to intervene was not moot because Murray Energy still had time to appeal the denial of the nationwide injunction and because EPA could abandon its opposition to the injunction. Oral argument in the Fourth Circuit was tentatively calendared for the May 9–11, 2017 argument session. In other developments, the district court only partially granted a joint motion to extend the deadlines for complying with its order. The parties had asked for extensions of between three and four months for submission of the “comprehensive filing detailing the actions the agency is taking to comply,” the jobs study, and evidence of adoption of measures to ensure that loss and shifts in employment are continuously evaluated. The parties said additional time was necessary to allow EPA to brief new administration officials. The court granted a two-month extension to allow EPA additional time to complete the initial “comprehensive filing” requirement, but said that the change in administration did not warrant more time for preparation of the employment evaluation (which must be filed with the court by July 1, 2017) or for adoption of measures to continuous evaluate employment effects (evidence of which must be filed by the end of 2017). Murray Energy Corp. v. Administrator of Environmental Protection Agency, No. 16-2432 (4th Cir. EPA brief and intervenor brief Feb. 21, 2017); Murray Energy Corp. v. McCabe, No. 5:14-cv-00039 (N.D. W. Va. joint motion Feb. 16, 2017; order Feb. 23, 2017).
LNG Terminal Companies Defended Department of Energy Export Authorizations in D.C. Circuit
In two proceedings in which Sierra Club challenged the U.S. Department of Energy’s (DOE’s) authorizations of the export of liquefied natural gas (LNG) to non-free trade agreement nations, intervenor-respondents filed briefs defending DOE’s compliance with NEPA and the Natural Gas Act (NGA). The intervenor-respondents were the companies that developed and operated the facilities in Corpus Christi, Texas, and in Cameron Parish, Louisiana, for which exports were authorized. The intervenor-respondents argued that neither DOE’s NEPA analyses nor its public interest analyses under the NGA were arbitrary and capricious. They contended that DOE had reasonably concluded that “theoretical impacts” of future impacts of emissions, including greenhouse gas emissions, from increased gas production and coal consumption were not cognizable indirect effects under NEPA because they were “too tenuously connected to the export authorization.” The intervenor-respondents further argued that DOE reasonably determined that Sierra Club’s assertions regarding unequal distribution of economic benefits and environmental concerns did not overcome the presumption in favor of exports in the public interest analysis under the NGA. Sierra Club v. United States Department of Energy, No. 16-1252 (D.C. Cir. Feb. 13, 2017); Sierra Club v. United States Department of Energy, No. 16-1253 (D.C. Cir. Feb. 13, 2017).
Challenges Filed to Renewable Fuel Standards for 2017 and 2018 Biodiesel Standard
Seven petitions for review were filed in the D.C. Circuit Court of Appeals seeking review of EPA’s final Renewable Fuel Standards for 2017 and Biomass-Based Diesel Volume for 2018. The lead case was brought by Coffeyville Resources Refining & Marketing, LLC and Wynnewood Refining Company, LLC, companies that operate refineries in Kansas and Oklahoma. Other petitioners included other refinery and energy companies, American Petroleum Institute (API), American Fuel & Petrochemical Manufacturers, and National Biodiesel Board. In its petition, API said that the standards were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and that they were in excess of statutory jurisdiction, authority, or limitations. API also said that EPA had not complied with procedural requirements. Coffeyville Resources Refining & Marketing, LLC v. EPA, Nos. 17-1044 et al. (D.C. Cir., filed Feb. 9, 2017).
Biofuel Trade Association Sought Rehearing of D.C. Circuit Decision Upholding EPA Authorization of Argentine Biofuel Producers’ Renewable Fuel Standard Compliance Plan
National Biodiesel Board (NBB) asked the D.C. Circuit Court of Appeals for panel rehearing or rehearing en banc after the court dismissed NBB’s challenge to an 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. NBB asserted that the court had erroneously characterized EPA’s decision as an “order” rather than as a “rule,” contravening D.C. Circuit precedent, and that EPA’s decision was therefore procedurally defective. NBB also said that the court had mischaracterized aspects of the alternative recordkeeping plan and NBB’s challenges to the plan. National Biodiesel Board v. EPA, No. 15-1072 (D.C. Cir. Feb. 3, 2017).
FERC Said Environmental Review for Gas Pipeline Adequately Assessed Greenhouse Gas Impacts
The Federal Energy Regulatory Commission (FERC) defended its approval of natural gas pipeline projects in the southeastern United States. FERC argued that it satisfied the requirements of the National Environmental Policy Act, including by taking a hard look at potential impacts on climate change. FERC said that it had reasonably determined that the projects would not significantly contribute to greenhouse gas cumulative impacts. FERC’s brief noted that power plants receiving gas from the pipeline projects would be using it to convert from burning coal, thereby reducing those plants’ greenhouse gas emissions and potentially offsetting some regional emissions. FERC rejected the contention that it should have quantified downstream effects using a life-cycle analysis, which FERC had concluded would require it to engage in speculation. FERC said its approach to assessing climate change impacts was consistent with Council on Environmental Quality guidance and with D.C. Circuit precedent. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Jan. 31, 2017).
FOIA Lawsuit Sought State Department Communications with Climate Change Activists About China
Energy & Environment Legal Institute filed an action in the federal district court for the District of Columbia to compel the United States Department of State to produce communications to and from State Department employees in response to a Freedom of Information Act (FOIA) request. The complaint alleged that the communications were related to an alleged effort to coordinate climate change activists in developing alternative post-Obama diplomatic channels with China. The FOIA request was submitted to the agency on January 25, 2017. Energy & Environment Legal Institute v. United States Department of State, No. 1:17-cv-00340 (D.D.C., filed Feb. 27, 2017).
Summary Judgment Motions Filed in FOIA Dispute Over Records Related to NOAA Scientists’ “Hiatus” Paper; Three Organizations Sought to File Amicus Brief
Competing motions for summary judgment were filed in the dispute in D.C. federal court over the disclosure under the Freedom of Information Act (FOIA) of National Oceanic and Atmospheric Administration (NOAA) scientists’ records and communications concerning temperature data and a paper ultimately published in the journal Science. The paper “sought to properly account for the alleged ‘hiatus,’ ” or slowing of global temperatures increases, between 1998 and 2012. NOAA argued that the records search it had conducted under agreed-upon parameters was reasonable and adequate, and that it had properly withheld certain records—(1) drafts of the paper; (2) internal deliberations, including email exchanges; and (3) formal and informal peer review materials—based on the deliberative process privilege of FOIA Exemption 5. NOAA said disclosure of such materials would “chill the open and frank exchange of comments and opinions that NOAA officials engage in.” Judicial Watch, the organization seeking the documents, contended that the documents withheld based on Exemption 5 were not validly exempt because they were “factual, investigative, scientific research related to a study published in a non-agency, peer-review journal.” Judicial Watch also asserted that information revealed by a former NOAA scientist to a British news blog in February 2017 had provided evidence of NOAA misconduct that should defeat any privilege. Judicial Watch also said that NOAA had not produced “reasonably segregable” non-exempt information. Three organizations—Climate Science Legal Defense Fund, American Meteorological Society, and Union of Concerned Scientists—filed a motion seeking permission to participate as amici curiae and filed a proposed brief. They asserted that they had a special interest in the case because of their commitment to “ensuring robust, independent scientific research into vitally important subjects like climate change.” The organizations expressed concern that disclosure of the records sought by Judicial Watch would “significantly damage government scientists’ ability and willingness to conduct research into politically charged subjects like climate change.” The organizations also told the court that they had relevant expertise and familiarity with the issues presented by the case that could benefit the court’s consideration of the case. Judicial Watch opposed their participation, arguing that the “perspective” offered by the organizations was merely a “veiled attack” on Judicial Watch and its motives for requesting the documents, and that the proposed brief did not provide additional analysis that would benefit the court. Judicial Watch, Inc. v. United States Department of Commerce, No. 1:15-cv-02088 (D.D.C. federal motion for summary judgment Dec. 15, 2016; amicus motion and brief Jan. 27, 2017; plaintiff response to amicus motion Feb. 10, 2017; cross-motion for summary judgment Feb. 22, 2017).
Power Producers Challenged Illinois Law That Created Zero Emissions Credits for Nuclear Power Facilities
A trade association representing independent power producers and four power producers filed a lawsuit in Illinois federal court challenging an Illinois law that created a Zero Emissions Credit (ZECs) program allegedly to “prop up … two uneconomic nuclear power plants” in the state. The law, known as the Future Energy Jobs Act (FEJA), provides that certain zero-carbon resources (which the complaint says are limited to the two failing nuclear plants) will receive ZEC payments in an amount tied to the social cost of carbon and wholesale energy prices. The plaintiffs claimed that FEJA intruded on the Federal Energy Regulatory Commission’s exclusive authority to regulate the sale of electric energy at wholesale in interstate commerce under the Federal Power Act. The plaintiffs contended that FEJA therefore was preempted on both field preemption and conflict preemption grounds. The plaintiffs also asserted that the ZEC program was invalid under the dormant Commerce Clause. They stated that “[a]though the reduction of carbon emissions is important, this can be achieved much more effectively by means that would neither discriminate against interstate or international commerce nor frustrate the progress competitive markets have been delivering in the form of environmental benefits.” Electric Power Supply Association v. Star, No. 17-cv-01164 (N.D. Ill., filed Feb. 14, 2017).
Environmental Groups Asked California Federal Court to Grant or Deny Petition Regarding Permits for New Generators at Gas Plant
Center for Biological Diversity, Association of Irritated Residents, Sierra Club, and Climate Change Law Foundation filed a complaint in the federal district court for the Northern District of California seeking to compel EPA to respond to a petition submitted in July 2016 requesting that EPA object to a proposed Title V permit that authorized construction of eight new natural gas-fired steam generators at a natural gas plant in the McKittrick Oil Field in California. The plaintiffs alleged that the project would “exacerbate the poor air quality and respiratory illnesses that plague San Joaquin Valley communities already unfairly burdened with industrial pollution” and that the authorized activities would contribute to climate change. Center for Biological Diversity v. United States Environmental Protection Agency, No. 3:17-cv-720 (N.D. Cal., filed Feb. 13, 2017).
Consumer, Environmental, and Labor Groups Challenged Executive Order on Reducing Regulation
Public Citizen, Natural Resources Defense Council, and an international labor union filed a complaint in the federal district court for the District of Columbia challenging President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs” as well as interim guidance for the order’s implementation. The order directed federal agencies to (1) ensure that “incremental costs” of all new regulations finalized in fiscal year 2017, including repealed regulations, are no greater than zero, and (2) identify two regulations for potential repeal for every new regulation that is proposed. The complaint alleged that the order was unconstitutional in two ways. First, the plaintiffs alleged that the order violated separation of powers by asking agencies to consider factors not specified in or inconsistent with their governing statutes when making decisions about the promulgation or repeal of regulations. Second, the complaint alleged that the order violated the Constitution’s Take Care Clause, which establishes the President’s core executive duty to “take care that the law shall be faithfully executed.” The complaint also alleged that the order required agencies to act beyond their legal power (or ultra vires) and violated the Administrative Procedure Act. The plaintiffs enumerated examples of pending regulations that the order would affect, including vehicle safety standards and standards to protect the health and safety of miners. On climate change, the complaint noted that the Executive Order would run afoul of specific statutory requirements in the Clean Air Act, such as the definition of the “best system of emission reduction” in Section 111, the provision used in the Clean Power Plan, which requires that EPA consider not only cost but also environmental impacts and energy requirements. Public Citizen, Inc. v. Trump, No. 1:17-cv-00253 (D.D.C., filed Feb. 8, 2017).
Spokane Residents and Workers Challenged Federal Law Preempting Local Bans on Rail Transportation of Fossil Fuels
A physician from Spokane, Washington, and six other individuals who live or work in Spokane filed a lawsuit against the United States alleging that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) was unconstitutional to the extent that it preempted local prohibitions on rail transportation of fossil fuels. The plaintiffs alleged that the Spokane City Council had removed from the ballot for November 2016 an initiative that would have banned rail transportation of fossil fuels through the city. The plaintiffs alleged that local officials removed the initiative because the ICCTA would have preempted such a law. The plaintiffs asserted that such preemption violated their “federally-guaranteed constitutional right to a liveable climate” as well as their right to constitutional right to local community self-government. The plaintiffs also alleged that ICCTA’s preemption provisions violated their rights under the Washington constitution to local community self-government. Holmquist v. United States, No. 2:17-cv-00046 (E.D. Wash., filed Jan. 31, 2017).
Center for Biological Diversity Sent Notice of Violations, Intent to Sue in Connection with Gas Pipeline Leak Off Alaska Coast
The Center for Biological Diversity submitted a notice of violations to EPA in connection with an ongoing natural gas leak from a pipeline in the Cook Inlet off the Alaska coast. The Center asserted that EPA was required to take action to enforce violations of the Clean Water Act and Clean Air Act. The Center also said that its letter served a notice of intent to sue the pipeline’s owner under the Clean Water Act, Clean Air Act, Endanged Species Act (due to the presence of the endangered Cook Inlet beluga whale), and Pipeline Safety Act. The Center asserted that natural gas was bubbling to the surface and polluting the atmosphere in violation of Section 112(r)(1) of the Clean Air Act and noted that the primary component of the natural gas, methane, was a potent greenhouse gas. Center for Biological Diversity, Notice of Violations for Hilcorp’s Pipeline Leak in the Cook Inlet, Alaska (Feb. 27, 2017).
Sierra Club Told EPA It Would Sue Over Failure to Report on Renewable Fuel Standard’s Environmental and Conservation Impacts
Sierra Club submitted a notice of intent to file a Clean Air Act citizen suit against EPA for failing to report to Congress triennially on the environmental and resource conservation impacts of the Renewable Fuel Standard (RFS) program. Sierra Club asserted that EPA also had failed to comply with a requirement that it complete an “anti-backsliding” study to determine whether RFS volumes adversely impact air quality. Sierra Club, Notice of Intent to File Suit for Failure to Conduct Triennial Reports to Congress on Environmental and Conservation Impacts of the Renewable Fuel Standard and Failure to Conduct Anti-Backsliding Analysis or Determine if Mitigation Measures are Necessary (Feb. 23, 2017).
Automobile Manufacturers Requested Withdrawal of EPA Determination on Greenhouse Gas Standards for Model Year 2022-2025 Light-Duty Vehicles
On February 21, 2017, the Alliance of Automobile Manufacturers (AAM) submitted a letter to EPA Administrator G. Scott Pruitt requesting that EPA withdraw the Final Determination on the Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation. EPA issued the final determination a week before President Obama left office. AAM asked that EPA resume the Midterm Evaluation of the standards to rectify procedural and substantive defects, including failure to provide opportunity for meaningful notice and comment and failure to harmonize the greenhouse gas standards with the National Highway Traffic Safety Administration fuel economy standards. AAM also asserted that the final determination was “riddled with indefensible assumptions, inadequate analysis, and a failure to engage with contrary evidence” and that EPA had not received certain “highly relevant” studies and data because they were still pending. Letter from Alliance of Automobile Manufacturers to Scott Pruitt (Feb. 21, 2017).
Environmental and Community Groups Seek FERC Rehearing on Atlantic Sunrise Pipeline Project
Two requests for rehearing filed with FERC asked the Commission to withdraw its order authorizing the Atlantic Sunrise natural gas pipeline expansion project and the final environmental impact statement for the project and to redo the environmental analysis and public convenience and necessity analysis in compliance with NEPA and the NGA. The Atlantic Sunrise project included approximately 200 miles of new pipeline, mostly in Pennsylvania, and related infrastructure in Pennsylvania and at other locations on the East Coast. One request for rehearing was filed by seven environmental and community organizations led by Allegheny Defense Project; the other request was filed by Accokeek, Mattawoman, Piscataway Creeks Communities Council Inc. The requests enumerated numerous alleged deficits in the environmental review, including a “fatally flawed” cumulative impacts analysis that “all but ignor[ed] the substantial impacts of Marcellus and Utica shale gas development and climate change” and a failure to adequately consider the project’s downstream impacts on greenhouse gas emissions and climate change. In re Transcontinental Gas Pipe Line Company, LLC, Docket No. CP15-138 (FERC Allegheny Defense Project et al. request for rehearing Feb. 10, 2017; Accokeek, Mattawoman, Piscataway Creeks Communities Council Inc. request for rehearing Feb. 24, 2017).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
South African EIA Law Requires Consideration of Climate Impacts Before Coal-Fired Thabametsi Power Plant Development: Plaintiffs
EarthLife Africa has applied to the High Court of South Africa to challenge the Department of Environmental Affairs’ approval to develop a 1200MW coal-fired power plant that would operate through at least 2060. Approval was granted based on an environmental review submitted to comply with South Africa’s National Environmental Management Act 107 of 1998. That review stated that the plant’s indirect impact on the climate “is considered to be relatively small in the national and international context,” and it made no mention of how the changing climate would bear upon plant operations. EarthLife argues that approval was unlawfully granted because it preceded completion of a comprehensive assessment of the plant’s climate change-related impacts. The respondents in the case—the Minister for Environmental Affairs and the Thabametsi Power Project’s developer—have answered that EarthLife is wrong to infer that the 1998 Act requires consideration of climate change-related impacts. Thus the basic legal issue for the High Court to determine is whether under the 1998 Act, which does not expressly mention climate change, climate change is nonetheless a “relevant” consideration for the environmental review required for projects like Thabametsi. Notably, the Minister in her March 2016 response to EarthLife’s administrative appeal had stated that “the climate change impacts of the proposed development were not comprehensively addressed … prior to issuance of the [environmental authorization],” and ordered that approval of the project would be conditional on completion of a climate change impact assessment within six months. The applicants reject this half-step as unsatisfactory, pointing out 1) that South Africa has committed itself to climate change mitigation through ratification of the UNFCCC, the Kyoto Protocol, and the Paris Agreement, as well as submission of a National Determined Contribution that anticipates emissions will peak before 2025; and 2) that the environmental approval cannot be withdrawn regardless of the outcome of the climate change impact assessment. As of February 2017, the case is ongoing. EarthLife Africa Johannesburg v. Minister of Environmental Affairs and others, Case no. 65662/16.
No Third Runway at Vienna Airport Because Adverse Climate Impacts Outweigh Short-Term Economic Benefits: Austrian Court
Various NGOs and individuals persuaded a panel of the Austrian Federal Administrative Court to overturn the government of Lower Austria’s approval of construction of a third runway at Vienna’s main airport. The reason: authorizing the runway would do more harm to the public interest than good, primarily because it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change. Of the authorities cited by the court, the most important was Austria’s Climate Protection Act of 2011, which set emissions reduction targets for various sectors, including the transport sector. Because a third runway was expected to increase Austria’s annual CO2emissions, the court concluded that it would be at odds with the provisions of the 2011 Act as well as with Austria’s constitution and its international commitments under EU law and the Paris Agreement. In re Vienna-Schwechat Airport Expansion, W109 2000179-1/291E.
Australian Court Denies Motion to Dismiss Property Owners’ Amended Complaint Alleging Local Government’s Liability for Sea Level Rise Costs and Damages
A group of plaintiffs who own property along Belongil Beach in New South Wales, Australia sought damages from the local government authority, the Byron Shire Council, to cover the costs of erecting shoreline protections on their parcels and to compensate for lost value to their properties from encroaching seas. Plaintiffs allege that the need for those protections and the cause of the properties’ partial loss of value is the fault of the Council. In the 1960s and 70s, the Council constructed a form of hard shoreline armoring—“an artificial headland protected by a rock seawall.” Then, between 2006 and 2010, the Council issued draft planning documents (i) prohibiting the plaintiffs from armoring their own segments of shoreline and (ii) proposing a policy of managed retreat in response to rising seas and an encroaching shoreline. The Coastal Management Act provides that such plans only become final and effective after approval by the New South Wales Minister for Planning; the Council withdrew its draft Coastal Zone Management Plan in May 2011, before the Minister considered it.
Plaintiffs presented two alternative theories in support of their claim: either that the Council was negligent for installing hard shoreline armoring that has since displaced wave action to plaintiffs’ adjacent portions of beach, worsening erosion there; or that the Council’s armoring constitutes an instance of public nuisance. Plaintiffs also argued that their injury was compounded by the Council’s issuance and withdrawal of planning documents, and persistent position that managed retreat is the preferred policy response to shoreline encroachment.
After the plaintiffs’ suit survived a motion to dismiss in May 2016, the Council’s insurers, who had been steering the defense in the case, agreed to a settlement—as a result of which the court never determined legal liability for the claims alleged. The settlement’s terms bar the Council from removing existing coastal armoring (chiefly rock, concrete, and rubble barriers) on the plaintiffs’ parcels unless the plaintiffs agree to such removal. Should plaintiffs want to add to that armoring, the must apply within one year of the settlement, dated August 2016, and then must make the requested additions within one year of approval of their application. Any subsequent repairs or additions may only be proposed after 20 years—and the Council has not guaranteed that such proposals would be approved. Ralph Lauren 57 v. Byron Shire Council  NSWSC 169.