April 2019 Updates to the Climate Case Charts


Posted on April 2nd, 2019 by Romany Webb

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE #120.

FEATURED CASE

D.C. Federal Court Said Climate Change Analysis for Wyoming Oil and Gas Leases Was Insufficient

The federal district court for the District of Columbia ruled that the U.S. Bureau of Land Management (BLM) did not sufficiently consider the climate change effects of oil and gas leasing in its National Environmental Policy Act (NEPA) review for 282 lease sales covering more than 303,000 acres in Wyoming. The court found that BLM did not take a hard look at drilling-related and downstream greenhouse gas emissions associated with the leases and that BLM failed to “sufficiently compare those emissions to regional and national emissions.” Regarding drilling-related emissions, the court rejected the argument that BLM could defer its consideration of certain environmental impacts, including greenhouse gas emissions, until the drilling stage; the court said NEPA required BLM at the leasing stage to “reasonably quantify the [greenhouse gas] emissions resulting from oil and gas development on the leased parcels in the aggregate.” The court found that BLM had sufficient information to forecast greenhouse gas emissions at this stage and concluded that BLM’s justification for limiting its analysis to qualitative discussions of greenhouse gas emissions and their impacts was not reasonable. The court also rejected BLM’s argument that the environmental assessments for the lease sales had been “tiered” to environmental impact statements (EISs) for resource management plans that quantified emissions; the court noted that not all of the EISs included such quantitative analysis and that the analysis in the EISs that did quantify emissions was not adequate for the leasing stage analysis. With respect to downstream emissions from combustion of oil and gas, the court found that such emissions were indirect effects of the oil and gas leasing under the applicable “heightened” causation standard. The court declined, however, to require BLM to quantify downstream emissions. Instead, the court remanded for BLM to “strengthen” its discussion of downstream effects and directed the agency to consider whether quantifying greenhouse gas emissions from downstream use was “reasonably possible,” including through use of an emissions calculator suggested by the plaintiffs. Regarding cumulative effects, the court ruled that BLM’s refusal to quantify greenhouse gas emissions rendered its cumulative impacts analysis inadequate. BLM’s duty under NEPA, said the court, was to “quantify the emissions from each leasing decision—past, present, or reasonably foreseeable—and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decision at issue.” The court stated that “[g]iven the national, cumulative nature of climate change, considering each individual drilling project in a vacuum deprives the agency and the public of the context necessary to evaluate oil and gas drilling on federal land before irretrievably committing to that drilling.” The court rejected, however, the plaintiffs’ contention that BLM was required to use certain protocols—the “social cost of carbon” and the “global carbon budget”—to quantify climate change impacts. The court did not vacate the leasing decisions but enjoined BLM from authorizing new oil and gas drilling on the leases while the agency conducts its additional analysis. WildEarth Guardians v. Zinke, No. 16-1724 (D.D.C. Mar. 19, 2019).


DECISIONS AND SETTLEMENTS

Ninth Circuit Declined to Lift Injunction Barring Keystone XL Construction and Preconstruction Activities; Trump Issued New Presidential Permit Intended to Be Unreviewable

On March 15, 2019, the Ninth Circuit Court of Appeals denied a motion by the Keystone XL pipeline developers to stay a district court order barring them from proceeding with construction and certain preconstruction activities. A Montana federal district court enjoined such activities pending the U.S. Department of State’s completion of additional environmental review in compliance with the court’s November 2018 order. On March 29, 2019, however, President Trump issued a new presidential permit authorizing the construction of the pipeline across the U.S.-Canadian border. The new permit revoked the March 2017 permit that is the subject of the lawsuit. The new permit stated that it was granted “notwithstanding” a January 2017 presidential memorandum on which the district court relied to find that the March 2017 permit was not immune from review. The district court concluded that the January 2017 memorandum waived the president’s right to review the State Department’s decision on the permit and that the State Department’s decision was subject to judicial review. Neither the government nor the pipeline developer had applied to the district court or the Ninth Circuit for relief from the injunction as of April 1.

In their stay motion in the Ninth Circuit, the Keystone developers focused on threshold jurisdictional issues, including the issue of whether the district court had erred in finding that the State Department’s issuance of a presidential permit for the project was subject to judicial review. The developers also argued that the scope of the district court’s injunction was impermissibly broad. In the order denying the stay, the Ninth Circuit characterized the jurisdictional questions as “complex” and found that the developers had not made “the requisite strong showing that they are likely to prevail on the merits.” Noting that the district court itself had narrowed the scope of its injunction, the Ninth Circuit found no abuse of discretion in the district court’s declining to stay the injunction. Indigenous Environmental Network v. U.S. Department of State, Nos. 18-36068 et al. (9th Cir. Mar. 15, 2019).

Alaska Federal Court Vacated Trump Revocation of Obama Withdrawals of Arctic and Atlantic Areas from Oil and Gas Leasing

On March 29, 2019, the federal district court for the District of Alaska vacated the portion of a 2017 executive order issued by President Trump that revoked President Obama’s prior withdrawals of certain areas of the Outer Continental Shelf in the Arctic and Atlantic Oceans from oil and gas leasing. The court held that President Trump’s revocation of the withdrawals exceeded presidential authority granted by the Outer Continental Shelf Lands Act (OCSLA). The court said that the text of Section 12(a) of the OCSLA—which provides that the president “may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf”—did not expressly grant the power to revoke prior withdrawals. Although the court said the inclusion of “from time to time” in Section 12(a) rendered the provision ambiguous, the court concluded that the structure, legislative history, and purposes of the OCSLA indicated that Congress intended to authorize the president only to withdraw lands from leasing. The court indicated that instances of Congress deciding not to challenge “the small number of prior revocations” fell “far short of the high bar required to constitute acquiescence” to the president’s authority to revoke withdrawals, and that there was “[t]oo little information” about Congress’s inaction with respect to Section 12(a) to override the court’s interpretation. League of Conservation Voters v. Trump, No. 3:17-cv-00101 (D. Alaska Mar. 29, 2019).

Massachusetts Federal Court Let Claims Proceed Against Exxon for Failing to Consider Foreseeable Severe Weather Events at Marine Terminal

A federal court in Massachusetts declined to dismiss claims asserted by Conservation Law Foundation (CLF) against ExxonMobil Corporation (Exxon) for allegedly violating a marine terminal’s Clean Water Act permit by failing to take into account the impacts of climate change. The court—which issued its decision orally—concluded that CLF’s amended complaint included new allegations of imminent harm sufficient to allege standing and that the complaint alleged sufficient facts to state claims that Exxon violated the Clean Water Act permit by failing to consider weather events induced by climate change in its Storm Water Pollution Prevention Plan (SWPPP). Regarding standing, the court pointed to the complaint’s allegations of severe weather events induced by climate change that were already occurring or would occur in the near future in Massachusetts. In considering whether CLF had stated a claim, the court held that the Clean Water Act permit required consideration of foreseeable severe weather events, including climate change-induced weather events, because the permit required Exxon both to develop a SWPPP using “good engineering practices” and also to proactively address potential discharges of pollutants. The court found that U.S. Environmental Protection Agency (EPA) guidance and allegations of engineers’ practices in the field were sufficient to establish a claim that “good engineering practices” should include consideration of foreseeable severe weather events. The court was not persuaded by Exxon’s arguments that the permit shield doctrine barred CLF’s claims because EPA was aware of climate change when it issued the permit for the terminal; the court also said CLF allegations were sufficient to allege that Exxon had not taken foreseeable severe weather events into account in the SWPPP and in designing the terminal. The court also allowed CLF’s Resource Conservation and Recovery Act claim to proceed, except to the extent that it was based on discharges from point sources covered by the permit, because CLF plausibly alleged an imminent threat of harm. In addition, the court dismissed two claims and allowed two non-climate change claims to proceed, as it had previously indicated it would do, and also dismissed a third claim that it deemed to be subject to the permit shield doctrine. The court set a schedule for Exxon to file a motion for a stay under the doctrine of primary jurisdiction, with oral argument to be held on May 14. The court directed Exxon to issue any subpoena for EPA testimony by April 5 to allow EPA an opportunity to move to quash the subpoena. Conservation Law Foundation, Inc. v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass. Mar. 14, 2019).

Missouri Federal Court Upheld Bankruptcy Court Order Requiring California Municipalities to Dismiss Lawsuits Against Peabody

A federal district court in Missouri upheld a bankruptcy court’s order requiring the San Mateo and Marin Counties and the City of Imperial Beach (the plaintiffs) to dismiss their climate change lawsuits against the reorganized Peabody Energy Corporation (Peabody). Peabody, a coal company, filed for bankruptcy in 2016 and emerged from bankruptcy in April 2017. The plaintiffs filed their lawsuit against Peabody and other defendants in July 2017. The district court found that Peabody’s Chapter 11 bankruptcy plan discharged the plaintiffs’ claim under California’s public nuisance statute because not only equitable but also legal relief was available to the plaintiffs for an alleged breach of the statute. The district court also found that the bankruptcy court did not abuse its discretion in determining that the plaintiffs’ other claims were not exempt from discharge. County of San Mateo v. Peabody Energy Corp. (In re Peabody Energy Corp.), No. 4:17 CV 2886 (E.D. Mo. Mar. 29, 2019).

Colorado Federal Court Said NEPA Required Consideration of Foreseeable Oil and Gas Combustion Impacts but Upheld Other Aspects of Review

The federal district court for the District of Colorado ruled that greenhouse gas emissions from combustion of oil and natural gas should have been considered in the environmental review for BLM and the U.S. Forest Service actions authorizing oil and gas development in the Bull Mountain Unit in the Colorado River basin, but rejected other challenges to the agencies’ analysis of climate change-related impacts. The court found that the agencies erred in failing to consider the foreseeable indirect effects resulting from combustion of oil and gas, rejecting arguments that calculating greenhouse gas emissions from the combustion of oil and natural gas would be too speculative and that the defendants’ approval of a master development plan for land owned by defendant-intervenors within the Unit would not affect the intervenors’ ability to develop oil and gas resources. The court found, however, that the agencies had taken “an appropriately hard look” at cumulative climate change impacts and that the defendants were not required to perform a cost-benefit analysis using the social cost of carbon. The court also largely upheld other aspects of the agencies’ NEPA review, except for its evaluation of cumulative impacts on mule deer and elk. Citizens for a Healthy Community v. U.S. Bureau of Land Management, No. 1:17-cv-02519 (D. Colo. Mar. 27, 2019).

D.C. Federal Court Dismissed Challenge to Critical Habitat for Climate Change-Threatened Sierra Nevada Amphibians

The federal district court for the District of Columbia ruled that the California Cattlemen’s Association and two other agricultural trade groups lacked standing to challenge the designation of critical habitat for three amphibian species listed under the Endangered Species Act. All three species live in California’s Sierra Nevada mountain range and are threatened by a number of factors, including changes associated with climate change. The district court found that the trade groups had not established that any of their members would suffer an injury traceable to the designation of critical habitat, as opposed to pre-existing requirements. In addition, the groups failed to show that a decision in their favor would redress the alleged injuries. California Cattlemen’s Association v. U.S. Fish & Wildlife Service, No. 1:17-cv-01536 (D.D.C. Mar. 27, 2019).

Texas Federal Court Said Fish and Wildlife Service Should Not Have Required Unavailable Data—Including Climate Change Information—in Delisting Petition for “Elusive Spider”

The federal district court for the Western District of Texas found that the U.S. Fish and Wildlife Service (FWS) had acted arbitrarily and capriciously when it denied a petition to remove the bone cave harvestman—“an elusive spider known to inhabit only Travis and Williamson Counties, Texas”—from the list of endangered species. The court found that the FWS violated its own regulations by requiring that the petition “essentially present conclusive evidence about the harvestman’s population trends—more evidence than the Service admits is available or attainable.” The FWS had cited the absence of population data, including the absence of “trend analysis to indicate that this species can withstand the threats associated with development or climate change over the long term,” as grounds for its conclusion that the petition did not present sufficient information to demonstrate that delisting might be warranted. The court concluded that the FWS did not deny the petition based on the best available data, as required by the Endangered Species Act and the FWS regulations, because it denied the petition based on the absence of “admittedly unavailable” evidence. The court concluded that the petition met the threshold for a finding that delisting may be warranted and remanded to the FWS for further consideration. American Stewards of Liberty v. Department of the Interior, No. 1:15-cv-1174 (W.D. Tex. Mar. 28, 2019).

Sierra Club Found to Have Standing to Challenge Lack of Manufactured Housing Energy Efficiency Standards 

The federal district court for the District of Columbia ruled that Sierra Club had associational standing to bring a lawsuit against the Secretary of Energy to compel the promulgation of energy efficiency standards for manufactured housing. The Energy Independence and Security Act of 2007 required that such standards be established by December 19, 2011. The court found that Sierra Club had demonstrated that its members had suffered economic, health, and procedural injuries, and that there was a causal relationship between the Secretary’s inaction and the alleged injuries that would be redressed by promulgation of energy efficiency standards should Sierra Club prevail. The court said it was undisputed and clear that Sierra Club satisfied both of the remaining requirements for associational standing since its members’ interests were germane to the organization’s purpose and the members’ individual participation in the lawsuit was not required. Sierra Club v. Perry, No. 17-cv-2700 (D.D.C. Mar. 12, 2019).

California Appellate Court Said Utilities’ Distributed Resource Plans Could Consider Nonrenewable Energy Sources

The California Court of Appeal rejected Sierra Club’s challenge to a determination by the California Public Utilities Commission (CPUC) allowing electric utilities to consider energy produced from nonrenewable sources in their proposed plans for the deployment of “distributed resources.” The court agreed with Sierra Club that the Public Utilities Code definition of “distributed resources” excluded energy produced from nonrenewable sources but found that the statute did not prohibit utilities’ plans from also discussing localized natural gas-fueled energy sources. Sierra Club v. Public Utilities Commission, No. A152005 (Cal. Ct. App. Mar. 7, 2019).

Oregon Court Upheld State’s Low Carbon Fuel Standard Rules

The Oregon Court of Appeals upheld rules adopted to implement Oregon’s low carbon fuel standard. The court found that the Environmental Quality Commission (EQC) evaluated required statutory factors relating to safety and  potential adverse effects on public health, the environment, and air and water quality. The court also found that the challenge to EQC’s failure in 2015 to evaluate potential effects on the generation and disposal of waste was moot because EQC had readopted and amended the rules in 2017 in a manner that appropriately addressed the waste issue. The court also ruled that purchase of credits in the low-carbon-fuel market established by the rules did not constitute payment of a tax and therefore did not violate the Oregon constitution’s requirement that revenue from taxes on motor vehicle fuels be used exclusively for construction and maintenance of public roads and roadside rest areas. Western States Petroleum Association v. Environmental Quality Commission, Nos. 158944, A161442 (Or. Ct. App. Feb. 27, 2019).

NEW CASES, MOTIONS, AND NOTICES

Oakland, San Francisco, and Amici Argued for Revival of Climate Change Nuisance Case

On March 13, 2019, Oakland and San Francisco filed their opening brief in their Ninth Circuit appeal of the dismissal of their climate change nuisance action against oil and gas companies. They argued first that the district court erred in denying their motion to remand to state court in the absence of complete preemption of their state law public nuisance claim. They argued that their claims were not governed by federal common law and that there was no other basis for removal jurisdiction. Second, the municipalities argued that the district court’s dismissal of the action—based on the “supposedly ‘extraterritorial’ reach” of the claims and potential interference with “foreign policy”—“rested on a mischaracterization” of their public nuisance claims as seeking to regulate or enjoin greenhouse gas emissions. The plaintiffs described their actions as seeking only an equitable abatement remedy to mitigate local harms caused by climate change based on the defendants’ wrongful promotion of their fossil fuel products “while intentionally failing to disclose material information and/or affirmatively making misleading statements about the inevitable, devastating impacts on coastal communities it knew would result from the expanded use of … otherwise lawful products.” The municipalities asserted that their state law nuisance claims “easily survive” a federal preemption defense; that the presumption against extraterritoriality did not apply (or would be overcome if it did apply); and that the claims could be adjudicated without any foreign policy concerns. Finally, the municipalities contended that the court erred in declining to exercise specific personal jurisdiction over four out-of-state companies.

On March 20, 2019, 10 amicus briefs were filed in support of the municipalities:

  • Ten states and the District of Columbia argued that the cases belonged in state court and that the district court’s personal jurisdiction ruling would have “far reaching adverse consequences.”
  • The California State Association of Counties argued that the municipalities’ claims belonged in state court and that personal jurisdiction was proper.
  • Three local government associations argued that the lawsuits should be remanded or, in the alternative, that the Ninth Circuit should reverse the dismissal of the municipalities’ claims on displacement and separation of powers grounds. They also contended that the district court’s test for specific personal jurisdiction “places an impossible burden on cities seeking to use nuisance to address harms from activities that cross jurisdictional boundaries.”
  • Six U.S. senators, including both California senators, contended that the municipalities’ claims were a “classic case or controversy,” “not some abstract political question that is both nonjusticiable and committed to the other branches of government.” They asserted, moreover, that acceptance of the defendants’ separation of powers argument “at face value” would reward the defendants’ “decades-long efforts” to stifle climate change action by Congress, the executive branch, and international bodies and would not be consistent with the public interest or justice for the municipalities.
  • Natural Resources Defense Council argued that neither federal common law nor the Clean Air Act completely preempted the municipalities’ claims.
  • Former U.S. government officials did not take a position on the merits of the lawsuit but argued that the district court had erred when it invoked “diplomatic concerns” as a basis for dismissing the municipalities’ claims.
  • Law professors with expertise in conflict of laws and foreign relations law argued that the district court erred in applying the presumption against extraterritoriality to the municipalities’ claims and that “judicial caution” in the area of foreign affairs did not apply to the municipalities’ domestic tort claims. They also asserted that there was no foreign affairs preemption in this case.
  • Legal scholars with expertise in property and tort law and related areas contended that California courts were “well-equipped” to handle the municipalities’ public nuisance claims and that nuisance law would provide an “efficient remedy” by requiring the defendants “to internalize the costs of any wrongful promotion of fossil fuels.”
  • The Center for Climate Integrity, the Union of Concerned Scientists, and “scholars and scientists with strong interests, education, and experience in the environment and the science of climate change, with particular interest in public information and communication about climate change and how the public and public leaders learn about and understand climate change” indicated that their amicus brief was intended to document what they described as the defendants’ “coordinated, multi-front effort” to conceal their knowledge that “the unabated extraction, production, promotion, and sale of their fossil fuel products would result in material dangers to the public.”
  • Scientists and scholars with expertise in climate science submitted a brief to assist the court in understanding “the relevant science and the inevitableadaptation expenses these communities are facing.” City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.).

Briefing Completed, Oral Argument Scheduled for June 4 in Juliana v. United States

The Ninth Circuit Court of Appeals scheduled oral argument for the federal government’s appeal in Juliana v. United States to take place in Portland, Oregon, on Tuesday, June 4, 2019, at 9:30 AM. Briefing was completed on March 8 when the federal government filed its reply brief. The government rearticulated its arguments that the plaintiffs lacked standing and that their lawsuit was not a cognizable case or controversy under Article III of the Constitution. The government contended that a “quick look at the climate change issues and actions pending before Congress and the Executive Branch”—including the Green New Deal, carbon tax legislation, and the replacement for the Clean Power Plan—“confirms that Plaintiffs have petitioned the wrong branch.” The government also argued that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims failed on the merits. In addition, the government countered the plaintiffs’ argument that the Ninth Circuit should reconsider its decision to permit the appeal. Juliana v. United States, No. 18-36082 (9th Cir.).

EPA Told D.C. Circuit It Expected to Take Final Action on Proposed Clean Power Plan Replacement by End of June

In a status report filed with the D.C. Circuit on March 11, 2019, EPA indicated that the government shutdown had delayed its work on reviewing the public comments on the Affordable Clean Energy Rule (ACE Rule) that EPA has proposed as a replacement for the Obama administration’s Clean Power Plan to regulate carbon emissions from existing power plants. EPA said it intended and expected that it would be in a position to take final action on the ACE Rule proposal in the second quarter of 2019.  EPA requested that the court continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking. Respondent-intervenors opposed this request but asked, in the alternative, that the abeyance period be limited to no more than 60 days with a requirement for status reports every 30 days. West Virginia v. EPA, Nos. 15-1363 (D.C. Cir.).

Environmental Groups Sought to Challenge Rollbacks of Sage-Grouse Protections, Asserted Continuing Failure to Consider Climate Change Impacts on Habitat

Environmental groups sought to file a supplemental complaint in their lawsuit challenging federal land use plan amendments adopted in 2015 as part of the National Greater Sage-Grouse Planning Strategy. In the original complaint, the groups contended that the 2015 plans did not go far enough to ensure sage-grouse conservation, including because federal defendants had failed to consider climate change impacts on sage-grouse habitats and populations. In their proposed supplemental complaint and the brief supporting their motion for leave to file it, the groups asserted that the Trump administration had recently taken final actions to roll back protections included in the 2015 plans and that the administration’s actions would “hasten the sage-grouse’s decline toward extinction.” The supplemental complaint alleged that in rolling back the 2015 plans, the defendants had against failed “to analyze the cumulative and synergistic impacts of climate change on sage-grouse habitats and populations,” which would include “larger and more frequent wildfires and droughts, and invasions of cheatgrass and other non-native vegetation” that “will further reduce and fragment sage-grouse habitats.” Western Watersheds Project v. Bernhardt, No. 1:16-cv-00083 (D. Idaho, Mar. 29, 2019).

Groups Challenged Environmental Review for Contract for Green River Water Extractions, Alleging Failure to Take Climate Impacts into Account

Four environmental groups filed a lawsuit asserting that the U.S. Bureau of Reclamation failed to conduct an adequate environmental review pursuant to the National Environmental Policy Act (NEPA) prior to issuing a contract allowing new water extractions from the Green River and the Colorado River Basin. The groups alleged, among other things, that the Bureau of Reclamation’s environmental assessment used a modeling run “cherry picked to show minimal impact from the project” because the modeling run ignored the effects of climate change on water availability in the system. The groups asserted that an environmental impact statement should have been prepared, that the NEPA analysis had been unlawfully segmented, that the defendants failed to take a hard look at environmental effects (including by failing to take into account that climate change was “predicted with strong certainty to decrease stream flows”), and that they failed to look at a reasonable range of alternatives. Center for Biological Diversity v. U.S. Department of the Interior, No. 1:19-cv-00789 (D.D.C., filed Mar. 21, 2019).

FOIA Lawsuit Sought Records on Decision That Emission Standards Did Not Require Endangered Species Act Consultation

The Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit against the National Highway Traffic Safety Administration (NHTSA) in the federal district court for the District of Columbia to compel NHTSA to produce records in response to a request for records concerning the Safer Affordable Fuel-Efficient Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule). CBD alleged that the SAFE Vehicles Rule “would vastly increase fuel consumption and emissions of greenhouse gases and other pollutants.” The records sought in the FOIA request were any records explaining NHTSA’s determination that the SAFE Vehicles Rule did not require Section 7 consultation under the Endangered Species Act. NHTSA, along with EPA, concluded that setting emissions standards did not require such consultation. Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 1:19-cv-00785 (D.D.C. Mar. 21, 2019).

Lawsuit Filed Challenging Oil and Gas Lease Sale in Gulf of Mexico

Three environmental groups filed a lawsuit in federal court in the District of Columbia against the Secretary of the Interior and other federal defendants asserting that they violated the National Environmental Policy Act and the Administrative Procedure Act in their decision to hold an oil and gas lease sale in the Gulf of Mexico (Lease Sale 252). The plaintiffs alleged that the Bureau of Ocean Energy Management (BOEM) significantly underestimated the impacts of Lease Sale 52, including by using an incorrect royalty rate to forecast levels of oil and gas exploration, development, and production. They also contended that BOEM arbitrarily assumed that the same impacts would result from the proposed lease sale and the no action alternative. The complaint alleged that oil and gas activities in the Gulf of Mexico cause numerous impacts to the environment, including by contributing significantly to climate change due to greenhouse gases emitted by exploration, development, and production operations and due to the burning of the oil and gas produced in the Gulf. Healthy Gulf v. Bernhardt, No. 1:19-cv-00707 (D.D.C., filed Mar. 13, 2019).

Dakota Access Pipeline Developers Launched New Lawsuit Against Protesters

The developers of the Dakota Access Pipeline filed a lawsuit in North Dakota state court against Greenpeace, Red Warrior Society (which the developers said operated as a “front organization” for Greenpeace “to provide cover for Greenpeace USA’s support of and engagement in illegal, violent ‘direct action’” against DAPL and its developers), and three individuals. The lawsuit was filed a week after a federal court in North Dakota dismissed claims under the Racketeer Influenced and Corrupt Organizations Act against the same defendants (except for Red Warrior Society, which was not a party to the earlier action). The new lawsuit asserted some claims that were the same as or similar to claims the federal court dismissed without prejudice (trespass, defamation, tortious interference, and civil conspiracy), as well as new claims for aiding and abetting trespass, conversion, and aiding and abetting conversion. The plaintiffs alleged that the defendants “advanced their extremist agenda” through illegal and violent means and that they “also engaged in large-scale, intentional dissemination of misinformation and outright falsehoods,” including about DAPL’s impacts on climate change. The plaintiffs seek actual, consequential, special, and restitution damages. On March 18, 2019, the Greenpeace defendants removed the lawsuit to federal court on the grounds that the requirements of diversity jurisdiction were met. Energy Transfer LP v. Greenpeace International, No. 30-2019-0V-00180 (N.D. Dist. Ct., filed Feb. 21, 2019), removed, No. 1:19-cv-00049 (D.N.D. Mar. 18, 2019).

HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.

New Suit Filed Against the European Union Challenging the Treatment of Forest Biomass as a Renewable Fuel in the 2018 Revised Renewable Energy Directive

On March 4, 2019, plaintiffs from six countries filed suit against the European Union in the European General Court in Luxembourg to challenge the treatment of forest biomass as a renewable fuel in the European Union’s 2018 revised Renewable Energy Directive (known as RED II). RED II requires EU Member States to achieve an EU-wide target of 32% energy consumption from renewable sources by 2030. The legal documents are not yet available for the case, but in a press release, plaintiffs assert that RED II will accelerate widespread forest devastation and significantly increase greenhouse gas emissions by not counting carbon dioxide emissions from burning wood fuels. Plaintiffs describe the lawsuit as documenting the environmental, societal, and public health impacts associated with the increased logging, wood pellet manufacturing, and production of biomass energy driven by the RED II forest biomass policy. They allege that the policy is incompatible with the environmental objectives of the Treaty on the Functioning of the European Union and violates the EU Charter on Fundamental Rights (Art. 32 and 57). The plaintiffs are a group of individuals and non-governmental organizations (NGOs) from Estonia, Ireland, France, Romania, Slovakia, and the United States.
Further details to be provided upon review of the case documents. EU Biomass Plaintiffs v. European Union (EGC, filed Mar. 4, 2019).

NGOs File Climate Suit Against French Government in the Administrative Court of Paris

On December 17, 2018, four nonprofits sent a “lettre préalable indemnitaire” (letter of formal notice) to Prime Minister Edouard Philippe and 12 members of the French government, initiating the first stage in a legal proceeding against the French government for inadequate action on climate change. On February 15, 2019, the French government rejected the plaintiffs’ request. On March 14, 2019, the plaintiffs initiated the lawsuit by filing a “summary request” before the Administrative Court of Paris. The plaintiffs’ press release describes the lawsuit as challenging the state’s inaction on climate change and failure to meet its own goals for reducing greenhouse gas emissions, increasing renewable energy, and limiting energy consumption. The plaintiffs allege that the French government’s failure to implement proper measures to effectively address climate change violated a statutory duty to act. They report that they infer the government’s duty to act from the French Constitution, European legislation (including the Renewable Energy and Climate Change Package and other EU directives), the European Convention on Human Rights, other international agreements, and domestic policies (including statutory laws such as Grenelle I and the Act of 17 August 2015 on energy transition for green growth). Notre Affaire à Tous v. France (TA Paris, filed Mar. 14, 2019).

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