August 2017 Updates to the Climate Case Charts


Posted on August 7th, 2017 by Tiffany Challe

Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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.

In June, the Sabin Center, in collaboration with APKS, officially launched a new version of the climate litigation charts at http://climatecasechart.com. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 100.

FEATURED CASES

Federal Courts Upheld “Zero Emission Credits” for Nuclear Plants in Illinois and New York

Federal district courts in New York and Illinois upheld “zero emission credit” (ZEC) programs intended to subsidize old nuclear power plants in the two states. New York’s ZEC program is one component of the Clean Energy Standard adopted by the New York Public Service Commission. Illinois’s ZEC program was created by the Future Energy Jobs Act, which granted ZECs to qualifying facilities, which the Illinois court noted were “likely to be two nuclear power plants owned by Exelon in Illinois.” Plaintiffs challenging the New York program were electric generators and trade groups of electric generators; plaintiffs in the Illinois challenge were electric generators and their trade groups in one case and utility customers in a second case. Plaintiffs in both cases unsuccessfully argued that the ZEC programs were unconstitutional because they were preempted and violated the dormant Commerce Clause. The utility customers also made an equal protection claim. In the Illinois case, the court concluded that the plaintiffs largely lacked Article III standing for the preemption and dormant Commerce Clause claims but proceeded to address the merits. Both the Illinois and the New York federal courts agreed, though their reasoning was slightly different, that they did not have equity jurisdiction over the plaintiffs’ claims that the Federal Power Act (FPA)—which grants the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over the interstate wholesale electricity market—preempted the state programs. The courts concluded that Congress intended to foreclose a private right of action, with both courts citing the FPA’s provisions for a detailed remedial scheme before FERC and the Public Utility Regulatory Policies Act’s addition to the FPA of a private cause of action for a narrow scope of challenges to state action. The Illinois court also found that the relief sought by the plaintiffs would require the court to apply “judicially unadministratable” standards, but the New York court did not find this to be a barrier to equitable jurisdiction. Both courts also held that the FPA preemption claims would, in any event, fail on the merits. The courts—looking to the Supreme Court’s 2016 opinion in Hughes v. Talen Energy Marketing, LLC—said the states’ ZEC programs did not impermissibly “tether” ZEC payments to participation in the wholesale capacity auctions and did not directly affect wholesale rates. The ZEC programs therefore avoided field preemption. The courts also found that the plaintiffs did not state a plausible claim for conflict preemption because the ZEC programs did not run afoul of FERC’s goal of competitive and efficient energy markets. The New York court ruled that the plaintiffs did not have a cause of action to bring their dormant Commerce Clause claim because their alleged injuries did not fall within the zone of interests protected by the dormant Commerce Clause—i.e., the economic interests of out-of-state entities. The New York court also held that the plaintiffs failed to state a dormant Commerce Clause claim because New York State acted as a market participant when it created ZECs. The Illinois court held that the plaintiffs did not have Article III standing to make their dormant Commerce Clause claim, and also concluded that no dormant Commerce Clause claim was stated because Illinois’s statute did not preclude out-of-state generators from submitting bids for ZECs and was therefore not facially discriminatory, and there were no plausible allegations that the procurement process would be facially discriminatory. The Illinois court also concluded there was a substantial possibility that the implementation of the statute would be non-discriminatory in effect, rejected the argument that the statute had a discriminatory purpose, and said the state-created ZECs only indirectly burdened other generators’ ability to participate in the wholesale market. The Illinois court also dismissed the utility customer plaintiffs’ equal protection claim, finding that the ZEC program had rational basis grounded in the legislative goals of increasing reliance on zero-emission energy. The generator plaintiffs in the Illinois case filed a notice of appeal on July 17. Coalition for Competitive Electricity v. Zibelman, No. 1:16-cv-08164-VEC (S.D.N.Y. July 25, 2017; Village of Old Mill Creek v. Star, Nos. 1:17-cv-01164 and 1:17-cv-01163 (N.D. Ill. notice of appeal July 17, 2017; memorandum opinion and order July 14, 2017).


DECISIONS AND SETTLEMENTS

D.C. Circuit Said Administrative Stay of EPA Methane Standards for Oil and Gas Facilities Must Be Vacated Immediately

On July 31, 2017, the D.C. Circuit Court of Appeals ordered immediate issuance of the mandate vacating the U.S. Environmental Protection Agency’s (EPA’s) administrative stay of portions of methane standards for oil and gas facilities. Earlier in July, the court held that the Clean Air Act did not authorize the stay and granted environmental groups’ emergency motion to vacate the stay. The July 31 order followed a July 13 order partially granting EPA’s motion to recall the mandate. The July 13 order recalled the mandate only for 14 days, stating that “[t]o stay issuance of the mandate for longer would hand the agency, in all practical effect, the very delay in implementation” that the court had determined was arbitrary, capricious, and in excess of EPA’s authority. (Judge Janice Rogers Brown, in dissent, would have recalled the mandate and applied the court’s normal timing rules rather than “a truncated time-frame which shortchanges all sides.”) The court issued the July 31 order on its own motion after receiving petitions for rehearing en banc from two sets of intervenors (11 states and oil and gas trade groups) but not from EPA itself. Two judges—Judge Brown and Judge Brett M. Kavanaugh—would not have issued the mandate. Briefing on the rehearing petitions was completed on August 3, 2017. Clean Air Council v. EPA, No. 17-1145 (D.C. Cir. order July 31, 2017; state intervenor-respondents’ petition for rehearing en banc July 28, 2017; trade group intervenor-respondents’ petition for rehearing en banc July 27, 2017; order July 13, 2017; EPA motion to recall mandate July 7, 2017).

D.C. Circuit Remanded Renewable Fuel Volume Requirements to EPA

The D.C. Circuit Court of Appeals vacated and remanded EPA’s decision to reduce the total renewable fuel volume requirements for 2016 based on its “inadequate domestic supply” waiver authority. The court held that the Clean Air Act Renewable Fuel Program’s waiver provision authorized EPA to consider “supply-side factors affecting the volume of renewable fuel that is available to refiners, blenders, and importers to meet the statutory volume requirements” but did not permit EPA to “consider the volume of renewable fuel that is available to ultimate consumers or the demand-side constraints that affect the consumption of renewable fuel by consumers.” The D.C. Circuit upheld other aspects of the renewable fuel volume requirements for 2014, 2015, and 2016, including EPA’s authority to issue late biomass-based diesel volume requirements, EPA’s use of actual volumes from 2014 and 2015 to minimize hardship to obligated parties, EPA’s 2016 cellulosic biofuel projections, and EPA’s interpretation and application of the cellulosic waiver provision, which the court said gave EPA discretion to consider demand-side constraints in the advanced biofuel marketplace. Because it remanded the final rule to EPA, the D.C. Circuit concluded it was not necessary to address the obligated parties’ contention that EPA was required to reconsider its choice to apply the renewable fuel requirements to refiners and importers but not to blenders. The court said EPA could address the obligated parties’ comments regarding this “point of obligation” issue on remand and noted that EPA also was in the process of reviewing petitions for reconsideration of its current point of obligation regulation. Americans for Clean Energy v. EPA, Nos. 16-1005 et al. (D.C. Cir. July 28, 2017).

Ninth Circuit Put Young People’s Climate Lawsuit on Hold

On July 25, 2017, the Ninth Circuit Court of Appeals temporarily stayed district court proceedings in the lawsuit brought by a group of young people and “future generations” in federal district court in Oregon alleging that the federal government had violated their constitutional rights by contributing to the accumulation of greenhouse gases in the atmosphere. The United States filed a petition for writ of mandamus and request for stay in the Ninth Circuit on June 9, 2017, arguing that the district court’s denial of its motion to dismiss the lawsuit was based on clear error. On July 28, 2017, the Ninth Circuit ordered the real parties in interest (the plaintiffs in the district court action) to file a response within 30 days. The Ninth Circuit directed the parties to “address the status of all current discovery requests; report all pending discovery deadlines; and identify any ongoing or expected discovery disputes.” The Ninth Circuit also said the parties should address whether the real parties in interest’s constitutional challenge to Section 201 of the Energy Policy Act was within the district court’s jurisdiction. (Section 201 concerns authorization of imports and exports of natural gas. In its petition, the United States contended that the plaintiffs’ claim regarding an export authorization for an Oregon liquefied natural gas terminal was “indisputably” beyond the district court’s jurisdiction because exclusive jurisdiction was vested in the courts of appeals.) The Ninth Circuit order said the district court could also file a response if it desired to do so. The judges on the panel are Alfred T. Goodwin (Nixon appointee), Alex Kozinski (Reagan appointee), and Marsha S. Berzon (Clinton appointee). United States v. United States District Court for the District of Oregon, No. 17-71692 (9th Cir. stay order July 25, 2017; order setting schedule July 28, 2017).

Montana Federal Court Allowed Wyoming to Intervene in Challenge to Lifting of Coal Leasing Moratorium

The federal district court for the District of Montana granted the State of Wyoming’s motion to intervene in a lawsuit brought by four states to challenge the Department of the Interior’s lifting of the Obama administration’s moratorium on the federal coal leasing program. The court said Wyoming met the standard for intervention as of right because it contained a number of coal leases affected by the moratorium and because it occupied a different position than the United States due to its “unique interests as a high volume coal producing state.” California v. Zinke, No. CV-17-42-GF-BMM (D. Mont. July 25, 2017).

Texas Federal Court Ordered Prison Officials to Address Extreme Heat Conditions at State Prison

The federal district court for the Southern District of Texas granted a request for a preliminary injunction to redress conditions at a state prison alleged to create an unconstitutional risk of heat-related illnesses. The court found that the plaintiffs had shown a likelihood of success on the merits of an Eighth Amendment claim. The court found that the extreme heat inside and outside the prison placed stress on the human body and caused a risk of illness, and a heightened risk for heat-sensitive men, and that mitigation measures imposed at the prison were insufficient. The court noted that “[t]he Court and the parties have no way of knowing when a heat wave will occur, but it is clear that one will come,” taking judicial notice of a statement in a Sabin Center for Climate Change Law report on Heat in U.S. Prisons and Jails: Corrections and the Challenge of Climate Change regarding climate scientists’ forecasts that heat waves will become more frequent, more severe, and more prolonged. Cole v. Collier, No. 4:14-cv-01698 (S.D. Tex. July 19, 2017).

Washington Federal Court Dismissed Challenge to Federal Preemption of Local Bans on Fossil Fuel Transit

The federal district court for the Eastern District of Washington dismissed an action in which the plaintiff alleged that the Interstate Commerce Commission Termination Act of 1995’s (ICCTA’s preemption of local restrictions on the transportation of coal and oil by rail within municipal boundaries violated their “constitutional right to a livable and healthy climate.” The plaintiffs were the unsuccessful proponent of ballot initiatives that would have banned rail transit of coal and oil through Spokane, Washington and supporters of similar measures to ban fossil fuel trains in Spokane. The court held that the plaintiffs’ claims were not justiciable because the issue was not ripe, the plaintiffs did not have standing, and any relief requested would amount to an advisory opinion. With respect to ripeness and standing, the court said the plaintiffs’ alleged harm was not traceable to ICCTA, which did not prohibit passage of the ballot initiative but only application of certain laws. The court also found that any causal connection between the failed initiatives and Spokane’s climate was “tenuous, at best.” Holmquist v. United States, No. 2:17-CV-0046-TOR (E.D. Wash. July 14, 2017).

California Federal Court Hearing Challenge to Water Transfer Project Asked for More Briefing on Projected Climate Change Impacts

The federal district court for the Eastern District of California asked the parties to a challenge to a water transfer program for the Sacramento/San Joaquin Delta to submit supplemental briefing on three issues related to the incorporation of climate change into the baseline used in the environmental review of the proposed program. The environmental review was conducted pursuant to both the National Environmental Policy Act (NEPA) and California Environmental Quality Act. The court asked the parties to address what record evidence supported the final environmental impact statement/report’s “apparently contradictory decision not to adjust the project baseline to reflect changes in water supply conditions projected to result from climate change” in light of the record evidence projecting such impacts. The court also asked for discussion of the extent to which existing modeling approaches incorporated foreseeable climate change impacts into the baseline. In addition, the court asked for briefing on the extent to which NEPA still imposed a responsibility to incorporate reasonably foreseeable climate change impacts into the baseline given the Trump administration’s withdrawal of the Council on Environmental Quality NEPA climate change guidance. (The court refers to the 2010 CEQ draft guidance, not the final 2016 guidance.) AquAlliance v. U.S. Bureau of Reclamation, No. 1:15-cv-00754-LJO-BAM (E.D. Cal. July 14, 2017).

California Supreme Court Upheld San Diego Review of Long-Term Greenhouse Gas Impacts Associated with Regional Development Plan

The California Supreme Court ruled that the San Diego Association of Governments’ (SANDAG’s) review of greenhouse gas emissions associated with a regional development plan adequately disclosed information about the plan’s greenhouse gas emissions and the plan’s potential inconsistency with statewide goals for reductions in such emissions. The court therefore reversed lower courts’ rulings that SANDAG’s California Environmental Quality Act Review (CEQA) should have evaluated the significance of impacts against the 2005 executive order issued by Governor Arnold Schwarzenegger that set a goal of reducing emissions 80% below 1990 levels by 2050. The Supreme Court found that SANDAG’s environmental impact report (EIR) “[did] not obscure the existence or contextual significance of” the executive order’s target and “[made] clear that the 2050 target is part of the regulatory setting in which the Plan will operate.” The court said SANDAG’s overall approach to evaluating greenhouse gas impacts was reasonable and adequately informed EIR readers. The Supreme Court stated, however, that “we do not hold that the analysis of greenhouse gas impacts employed by SANDAG in this case will necessarily be sufficient going forward. CEQA requires public agencies like SANDAG to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.” One justice filed a dissenting opinion, writing that the EIR managed “to occlude the elephant in the room—that the plan was associated with a major projected increase in greenhouse gas emissions, diverging sharply from emission reduction targets reflecting scientific
consensus.” Cleveland National Forest Foundation v. San Diego Association of Governments, No. S223603 (Cal. July 13, 2017).

Vermont Court Ordered Attorney General to Produce Some Documents Related to Climate Change Coalition Common Interest Agreement

A Vermont state court ordered the Vermont attorney general to deliver documents to the Energy & Environment Legal Institute (EELI) in response to EELI’s request under the Public Records Act for certain documents related to the Climate Change Coalition Common Interest Agreement (Agreement), which the attorney general had entered into with the attorneys general of several other states. EELI limited the scope of documents it sought to documents reflecting requests by parties to the Agreement to share records and parties’ responses to such requests. The court said the Public Records Act’s professional ethics confidentiality exemption did not cover all attorney general records, “particularly those of an administrative or operational nature.” The court also declined to allow the attorney general to withhold documents from disclosure based on privilege grounded in a “common interest doctrine.” The court said that even if such a privilege existed, it would not apply to the documents sought by EELI, which were not attorney work product or attorney-client communications but “documents related to administrative implementation of the Common Interest Agreement, which is itself a public document.” Energy & Environment Legal Institute v. Attorney General of Vermont, No. 558-9-16 (Vt. Super. Ct. July 27, 2017).

EPA Panel Concluded Pruitt Statements Regarding Carbon Dioxide’s Contribution to Climate Change Did Not Violate Agency’s Scientific Integrity Policy

A panel convened from the EPA Scientific Integrity Review Committee concluded that EPA Administrator Scott Pruitt’s comments during a television interview that he would not agree that carbon dioxide was “a primary contributor to the global warming that we see” did not violate the EPA Scientific Integrity Policy. The panel, which was convened in response to a request filed by the Sierra Club with the EPA Inspector General, stated that “[e]xpressing an opinion about science is not a violation of the EPA Scientific Integrity Policy. Indeed, the Scientific Integrity Policy – in the spirit of promoting vigorous debate and inquiry – specifically encourages employees to express their opinion should the employee disagree with scientific data, scientific interpretations, or scientific conclusions.” In his letter advising the Sierra Club of the panel’s decision, the Director of the EPA Office of the Science Advisory said “[t]he freedom to express one’s opinion about science is fundamental to EPA’s Scientific Integrity Policy even (and especially) when that point of view might be controversial.” Letter from Director of EPA Office of the Science Advisor to Sierra Club (undated).

Oregon Land Use Board of Appeals Reversed Portland’s Ban on New and Expanded Fossil Fuel Terminals

The Oregon Land Use Board of Appeals (Board) found that amendments to the City of Portland, Oregon, zoning ordinance prohibiting new bulk fossil fuel terminal and expansion of existing terminals violated the dormant Commerce Clause. The Board therefore reversed the amendments. The Board concluded the amendments were discriminatory in practical effect because, though facially neutral regarding the origin and destination of fossil fuels, the amendments were intended to preclude construction of new or expanded terminals that would serve interstate and international markets. The Board further found that the City had failed to demonstrate that the amendments served legitimate local interests—including a desire to reduce Portland’s contribution to climate change—that could not adequately be served by reasonable nondiscriminatory alternatives. The Board said the City had identified nothing in the amendments directed at accomplishing the goal of reducing local contributions to greenhouse gas emissions and climate change and said that “we do not believe the city can, consistent with the dormant Commerce Clause, deliberately attempt to slow or obstruct the flow of fossil fuels from other states to consumers in other states or countries with the apparent goal or reducing generation of greenhouse gases elsewhere in the world, and justify that attempt as a legitimate local interest.” The Board also considered whether the amendments, even if deemed nondiscriminatory, could meet the Pike balancing test under the dormant Commerce Clause and concluded that they could not, citing local benefits that were “attenuated at best” and the potentially significant burdens on national and international markets in fossil fuels. The Board also sustained some challenges to the amendments based on local, regional, and state standards. Columbia Pacific Building Trades Council v. City of Portland, LUBA No. 2017-001 (July 19, 2017).

NEW CASES, MOTIONS, AND NOTICES

California Counties and City Sued Fossil Fuel Companies for Climate Change Damages

Three local governments in California (San Mateo County, Marin County, and the City of Imperial Beach) filed separate lawsuits in California Superior Court alleging that fossil fuel companies’ “production, promotion, marketing, and use of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-regulation and anti-science campaigns, actually and proximately caused” injuries to the plaintiffs, including more frequent and more severe flooding and sea level rise that jeopardized infrastructure, beaches, schools, and communities. Their complaints included claims for public nuisance, strict liability for failure to warn, strict liability for design defect, private nuisance, negligence, negligent failure to warn, and trespass. The relief sought by the local governments includes compensatory damages, abatement of the alleged nuisance, attorneys’ fees, punitive damages, and disgorgement of profits. City of Imperial Beach v. Chevron Corp., No. C17-01227 (Cal. Super. Ct., filed July 17, 2017); County of Marin v. Chevron Corp., No. CV1702586 (Cal. Super. Ct., filed July 17, 2017); County of San Mateo v. Chevron Corp., No. 17CIV03222 (Cal. Super. Ct., filed July 17, 2017).

Groups Challenged Suspension of Greenhouse Gas Performance Measure for Highway System

Three organizations filed a lawsuit alleging that the Federal Highway Administration (FHWA) violated the Administrative Procedure Act when it suspended a greenhouse gas performance measure for tracking and setting reduction targets for carbon dioxide emitted from on-road mobile sources on the national highway system. The plaintiffs alleged that FHWA had suspended the measure without notice and comment and lacked good cause to do so. The measure was included in a final rule published on January 18, 2017, which was to take effect on February 17, 2017. The final rule was subject to the regulatory freeze instituted by the Trump administration on January 20. Subsequently, FHWA twice suspended the entire rule—which contained provisions other than the greenhouse gas measure—for set periods of time. On May 29, 2017, FHWA published notice that it was suspending the effective date for the greenhouse gas measure indefinitely. The greenhouse gas measure was promulgated under the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation Act (FAST Act). Clean Air Carolina v. U.S. Department of Transportation, No. 1:17-cv-5779 (S.D.N.Y. complaint filed July 31, 2017).

Briefing Completed on Motions by Attorneys General to Dismiss Exxon Federal Lawsuit; Massachusetts Supreme Judicial Court to Hear Exxon Appeal of Order Requiring Compliance with Attorney General’s Investigation

Briefing was completed for the motions by the Massachusetts and New York attorneys general to dismiss Exxon Mobil Corporation’s (Exxon’s) action in New York federal court to block the states’ investigation of its climate change-related disclosures. New York Attorney General Eric Schneiderman in his reply papers asserted that Exxon’s federal claims were not ripe and that the Colorado River abstention doctrine compelled dismissal of “this duplicative and wasteful federal action.” Schneiderman said Exxon’s representations in New York state court that it had fully  and voluntarily complied with the attorney general’s subpoena “fatally undermine[d]”  any claim of ripe injury. Schneiderman also said “the only conceivable effect of prospective federal relief” would be to interfere with the attorney general’s inquiry into Exxon’s alleged withholding or spoliation of evidence. Massachusetts Attorney General Maura Healey argued in her reply that a Massachusetts Superior Court order requiring Exxon to comply with her office’s Civil Investigative Demand precluded Exxon’s federal court action. Healey also argued that Exxon’s opportunities to present its case in state court made its federal claims unripe and that the federal court should abstain on Colorado River abstention grounds. On July 28, 2017, the Massachusetts Supreme Judicial Court sua sponte ordered that Exxon’s appeal of the Superior Court order be transferred to it from the intermediate appellate court, where the appeal had been fully briefed. In a subsequent letter to the federal court, Healey’s office contended that this development provided additional support for abstention by the court. Exxon Mobil Corp. v. Schneiderman, No. 1:17-cv-02301-VEC (S.D.N.Y. Mass AG letter Aug. 1, 2017; NYAG reply June 30, 2017; Mass AG reply June 30, 2017); Exxon Mobil Corp. v. Office of the Attorney General, No. 2017-P-0366 (Mass. App. Ct. order transferring case July 28, 2017), No. SJC-12376 (Mass. transferred from Appeals Court Aug. 1, 2017).

California, New Mexico, and Conservation and Tribal Groups Challenged Postponement of Compliance Dates for BLM’s Methane Waste Rule

Two lawsuits were filed in the federal district court for the Northern District of California challenging the U.S. Bureau of Land Management’s (BLM’s) postponement of compliance dates for its “Waste Prevention Rule,” which set requirements to prevent the venting, flaring, or leaking of natural gas, including methane, on public and tribal lands. The Waste Prevention Rule went into effect in January 2017, and the notice of the postponement was published on June 15, 2017. The notice said “serious questions” had been raised regarding some of the rule’s provisions and that postponement would preserve the regulatory status quo while litigation was pending (in the District of Wyoming) and while the Interior Department reviewed and reconsidered the rule. One lawsuit was filed by California and New Mexico; the other lawsuit was filed by conservation and tribal groups. On July 26, the federal defendants moved to transfer the cases to the District of Wyoming, arguing that a transfer would be in the interests of justice because it would conserve judicial resources and prevent inconsistent judgments and that the Wyoming forum was also more convenient. Also on July 26, the states filed a motion for summary judgment, arguing that the Administrative Procedure Act did not authorize postponement of compliance states after the effective date for regulations had passed and that the postponement notice violated notice-and-comment requirements. The states also argued that BLM’s justification for postponement was arbitrary and capricious. The conservation and tribal groups filed a motion for summary judgment on July 27. Like the states, the groups argued that the Secretary of the Interior lacked authority to stay compliance dates for an already-effective rule and that he could not alter the compliance dates without notice-and-comment rulemaking. Sierra Club v. Zinke, No. 3:17-cv-03885 (N.D. Cal. motion for summary judgment July 27, 2017; complaint July 10, 2017); California v. Zinke, No. 3:17-cv-03804 (N.D. Cal. motion to transfer July 26, 2017; motion for summary judgment July 26, 2017; complaint July 5, 2017).

Trump Administration and Trade Group Sought Dismissal of Lawsuit Challenging Revocation of President Obama’s Withdrawal of Atlantic and Arctic Ocean Areas from Oil and Gas Leasing

Federal defendants and the American Petroleum Institute (API) moved to dismiss an action in Alaska federal court challenging President Trump’s authority to issue the executive order of April 28, 2017 on “Implementing an America-First Offshore Energy Strategy” that reversed President Obama’s withdrawal of lands in the Atlantic and Arctic Oceans from future oil and gas leasing. The federal defendants argued that the plaintiffs had not identified a private right of action or waiver of sovereign immunity and that separation of powers principles barred the relief sought. The federal defendants also said the plaintiffs’ claims were unripe and that the plaintiffs lacked standing. API adopted and incorporated by reference the federal defendants’ arguments and also argued that the judicial review was not yet available under the Outer Continental Shelf Lands Act (OCSLA) and would not in any event be available in the District of Alaska. League of Conservation Voters v. Trump, No. 3:17-cv-00101 (D. Alaska API motion to dismiss July 28, 2017; federal defendants’ motion to dismiss June 30, 2017).

Consolidated Complaint Filed in Securities Class Action Against Exxon

On July 26, 2017, the lead plaintiff in a federal securities class action against Exxon Mobil Corporation (Exxon) and four Exxon officers filed a 186-page consolidated complaint. The consolidated complaint alleged that Exxon was a “company with a well-documented history of intentionally misleading the general and investing public with regard to the science concerning global climate change and its connection to fossil fuel usage, as well as the impact the changing climate is likely to have on Exxon’s reserve values and long-term business prospects.” The proposed class includes persons who acquired Exxon’s publicly traded common stock between March 31, 2014 and January 30, 2017. The consolidated complaint alleged that the defendants made materially false and misleading statements regarding the value and amount of Exxon’s oil and gas reserves and regarding Exxon’s purported efforts to incorporate carbon or greenhouse gas proxy costs into the investment and valuation process for its oil and gas reserves. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111-K (N.D. Tex. July 26, 2017).

Trump Administration Sought to Stay Action Alleging That Obama Administration Immigration Actions Required NEPA Review

A group of plaintiffs filed a complaint in the federal district court for the Southern District of California in October 2016 in which they alleged that the U.S. Department of Homeland Security (DHS) had failed to comply with NEPA when taking discretionary actions with respect to immigration. The plaintiffs included Arizona conservation districts, conservation district officials, nonprofit groups with missions to reduce or stabilize population growth and reduce immigration, and members of such organizations. The plaintiffs alleged that DHS discretionary actions resulted in in significant environmental impacts, including increases in greenhouse gas emissions, throughout the United States. The complaint alleged, among other things, that U.S. carbon dioxide emissions were increasing due to “immigration-driven population growth” and that emissions associated with immigration to the U.S. were equal to five percent of the increase in global emissions since 1980. On June 1, 2017, the federal defendants filed a motion to stay the action, arguing that executive orders issued by President Trump required DHS to review and potentially rescind or revise many of the policies at issue, rendering the proceeding moot. Whitewater Draw Natural Resource Conservation District v. Johnson, No. 3:16-cv-02583-L-BLM (S.D. Cal. motion to stay June 1, 2017; filed Oct. 15, 2017).

Sierra Club Challenged Inclusion of Fossil Fuel Generation in California Distributed Resources Program

The Sierra Club commenced a proceeding in the California Court of Appeal to challenge the California Public Utilities Commission’s decision to include fossil fuel generation within the scope of distributed resources eligible to participate in a distributed resources procurement program. The Sierra Club contended that inclusion of fossil fuel generation violated the plain meaning of the authorizing statute (Cal. Pub. Util. Code § 769), which defines distributed resources as “renewable generation resources, energy efficiency, electric vehicles, and demand response technologies.” Sierra Club v. California Public Utilities Commission, No. A152005 (Cal. Ct. App. petition for writ of review July 31, 2017).

Group Asked for Investigation into Whether Pruitt’s Statements About Paris Accord Constituted Misuse of Appropriated Funds

American Democracy Legal Fund requested that the U.S. Comptroller General investigate whether EPA Administrator Scott Pruitt violated the Antideficiency Act by misusing appropriated funds. ADLF contended in a July 17, 2017 letter that Pruitt’s public statements denouncing the Paris climate accord and encouraging lawmakers to defeat measures that would have affirmed U.S. support for the accord constituted unlawful communications for grassroots lobbying and publicity and propaganda purposes in violation of provisions of the Consolidated Appropriations Act of 2017. The letter said Pruitt’s comments represented a misuse of appropriated funds. Letter from American Democracy Legal Fund to Comptroller General of the United States (July 17, 2017).

Citing Trump Executive Order, Companies Asked EPA to Reconsider Application of Greenhouse Gas and Fuel Efficiency Standards to “Gliders”

Three companies submitted a petition for reconsideration of the application of EPA’s greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles to “gliders,” which the petition describes as “medium- and heavy-duty trucks that are assembled by combining certain new truck parts (that together constitute a ‘glider’ kit) with the refurbished powertrain—the engine, the transmission, and typically the rear axle—of an older truck.” The companies asserted that application of the standards to glider kits, glider vehicles, and rebuilt engines based on their date of assembly rather than on the age of the engine was “sudden and onerous” and would have a “devastating impact” on the glider industry and force small business to buy more expensive new vehicles. The companies argued that the Clean Air Act did not authorize EPA to regulate gliders, that EPA’s prior decision to regulate gliders was based on unsupported assumptions rather than data, and that reconsideration was warranted based on President Trump’s Executive Order on Promoting Energy Independence and Economic Growth. Petition for Reconsideration of Application of the Final Rule Entitled “Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2 Final Rule” to Gliders (July 10, 2017).

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