July 2019 Updates to the Climate Case Charts


Posted on July 3rd, 2019 by Tiffany Challe

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 # 123

FEATURED CASE

Federal Court Said Baltimore’s Climate Case Against Oil and Gas Companies Belonged in State Court

The federal district court for the District of Maryland remanded the City of Baltimore’s climate change lawsuit against oil and gas companies to state court. The court concluded that federal question jurisdiction did not exist and also rejected alternative bases for federal jurisdiction. First, the court rejected the defendants’ argument that federal common law governed Baltimore’s state law nuisance claim as a “cleverly veiled preemption argument.” The court said ordinary preemption was merely a defense and did not permit it to treat the claim as if it had been pleaded under federal law for jurisdictional purposes. The court further concluded that federal common law would not support removal even under the complete preemption doctrine because the defendants had not shown that any federal common law claim for public nuisance was available and case law suggested that the Clean Air Act displaced any such claim. Second, the court found that the case did not fall within the “slim category” of cases in which federal question jurisdiction exists for state law claims that raise substantial and disputed federal issues. Although the court acknowledged that there were “federal interests in addressing climate change,” the court said the defendants had not established that “a federal issue” such as foreign policy or a federal regulatory scheme was a necessary element of Baltimore’s claims. Third, the court rejected the argument that the foreign affairs doctrine or the Clean Air Act completely preempted Baltimore’s claims. Fourth, the court found no basis for federal jurisdiction based on defendants’ activities on federal enclaves. Regarding the alternative bases for removal jurisdiction, the court found that the defendants did not demonstrate that jurisdiction existed under the Outer Continental Shelf Lands Act, or that the claims were removable under the federal officer removal statute, the bankruptcy removal statute, or admiralty jurisdiction. Pursuant to a stipulation by the parties, the remand order is temporarily stayed. The defendants are seeking to stay the order pending their appeal to the Fourth Circuit. Mayor & City Council of Baltimore v. BP p.l.c., No. 1:18-cv-02357 (D. Md. June 10, 2019).


DECISIONS AND SETTLEMENTS

Ninth Circuit Vacated District Court Judgments on Keystone XL Pipeline as Moot Due to New Permit Issued by Trump; Environmental Groups Challenged Corps of Engineers Approval 

Because President Trump issued a new permit for the Keystone XL pipeline project and revoked the previous permit, the Ninth Circuit Court of Appeals granted the federal government’s motion to dismiss as moot the appeal of a district court’s decisions finding lapses in the State Department’s initial approval of the project. The Ninth Circuit also vacated the district court judgments, dissolved the permanent injunction orders, and remanded the case with instructions to dismiss the district court actions as moot. On July 1, environmental and conservation groups filed a lawsuit in the District of Montana challenging the U.S. Army Corps of Engineers approval of the project using Nationwide Permit 12, a general permit issued for pipelines and other utility projects. Indigenous Environmental Network v. U.S. Department of State, No. 18-36068 (9th Cir. June 6, 2019); Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044 (D. Mont., filed July 1, 2019).

Federal Court Found That Forest Service Took Hard Look at Carbon Impacts of Forest Thinning Project

The federal district court for the District of Oregon rejected claims that the U.S. Forest Service (USFS) failed to take a hard look at the climate change effects of a forest thinning project in the Mount Hood National Forest. The plaintiffs contended that the USFS’s National Environmental Policy Act (NEPA) analysis was inadequate because it was taken from the environmental assessment for a much smaller previous project and because it did not incorporate information from public comments, including a formula for assessing the carbon impacts of timber sales. The USFS argued that the project would promote the health of the forest, thereby sequestering carbon in the long run. The court wrote that the debate over “[w]hether the Project will have a net positive or negative contribution to carbon emissions depends on whether the USFS is correct in determining that thinning of overstocked stands will contribute to forest health and reduce the risk of fire, insect infestation, and disease.” The court said this question “is appropriately addressed in an analysis of whether the …Project will have highly controversial or uncertain effects” and found that the USFS had satisfied its NEPA hard look obligation by undertaking “a thorough examination of the question.” Bark v. U.S. Forest Service, No. 3:18-cv-01645 (D. Or. June 18, 2019).

Federal Court Dismissed Claims to Compel U.S. Submission of UNFCCC Reports

The federal district court in the District of Columbia again dismissed claims seeking to compel the U.S. Department of State to comply with reporting obligations under the United Nations Framework Convention on Climate Change (UNFCCC). The U.S. failed to submit two reports—a “National Communication” and a “Biennial Report”—by a January 2018 deadline. The court found that the plaintiff, Center for Biological Diversity, did not have standing based on informational injury because the UNFCCC did not impose a disclosure obligation either directly on the U.S. or indirectly through a UN disclosure obligation. The court previously dismissed the lawsuit without prejudice in November 2018 for lack of standing. Center for Biological Diversity v. U.S. Department of State, No. 1:18-cv-00563 (D.D.C. June 12, 2019).

New York Appellate Court Rejected Necessity Defense for Power Plant Protesters

A New York appellate court affirmed a defendant’s convictions for disorderly conduct in connection with his obstructing vehicles from entering a power plant construction site. The appellate court agreed with the trial court that the defendant failed to meet the requirements to establish the justification by necessity defense. In particular, the appellate court agreed that the defendant’s actions, “planned in advance with the stated intention of drawing attention to the issue of global warming, cannot be considered to have been reasonably calculated to actually prevent any harm presented merely by the construction of the power plant.” The court also rejected the defendant’s definition of “imminent” as extending beyond immediacy to refer to harms that are certain to occur. The court said caselaw did not support such a definition. The appellate court noted that it did not reach the issue of whether “the threat of global warming was of such gravity that the desirability and urgency of avoiding this threat outweighed the injury sought to be prevented by the disorderly conduct statute.” The court also affirmed the disorderly conduct convictions of five other defendants. People v. Cromwell, No. 2017-1310 OR CR (N.Y. App. Term June 13, 2019).

State Court Dismissed Exxon’s Defenses Accusing Attorney General’s Office of Misconduct in Climate Change Fraud Action

At a hearing on June 12, 2019, a New York trial court dismissed affirmative defenses related to alleged conflicts of interest and official misconduct in the New York Attorney General’s climate change fraud action against Exxon Mobil Corporation (Exxon). The court reserved its decision on Exxon’s defense of selective enforcement pending submission of additional documents. The court directed the parties to submit three-page letters on potential depositions of Office of Attorney General (OAG) staff. In addition, the court granted OAG’s motion to seal certain emails between OAG attorneys and a third-party attorney. The court also addressed a dispute over access to former Attorney General Eric Schneiderman’s personal email account, which Exxon alleges was used to conduct official business relevant to Exxon’s defenses. The court directed OAG to provide “a less carefully worded statement” to provide confidence “that anything that was official business or related to this investigation was made available” to Exxon “via communications sent by Mr. Schneiderman to his official account.” People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. June 12, 2019).

NEW CASES, MOTIONS, AND NOTICES

Competitive Enterprise Institute and National Review Seek Supreme Court Intervention to Stop Climate Scientist’s Defamation Action

The Competitive Enterprise Institute (CEI) and a CEI commentator and National Review, Inc. filed petitions for writ of certiorari seeking U.S. Supreme Court review of the D.C. Court of Appeals decision that allowed climate scientist Michael Mann’s defamation lawsuit to proceed against them in connection with articles that accused Mann of scientific misconduct. National Review’s petition presents the question: “Is the question whether a statement contains a ‘provably false’ factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)?” The National Review petition also presents the question of whether the First Amendment permits “defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as ‘deceptive’ and calling its creation a form of ‘scientific misconduct.’” Similarly, the questions presented in the CEI petition are “[w]hether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern” and “[w]hether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.” Competitive Enterprise Institute v. Mann, No. 18-1477 (U.S. May 23, 2019); National Review, Inc. v. Mann, No. 18-1451 (U.S. May 21, 2019).

D.C. Circuit to Hear Arguments on Vehicle Greenhouse Gas Standards on September 6

The D.C. Circuit scheduled oral argument for September 6, 2019 in the proceedings challenging the U.S. Environmental Protection Agency’s decision to withdraw the Obama administration’s Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles because the standards appeared to be too stringent. California v. EPA, No. 18-1114 (D.C. Cir. June 21, 2019).

EPA Notified D.C. Circuit of Clean Power Plan Repeal and Replacement

On June 20, 2019, the U.S. Environmental Protection Agency (EPA) notified the D.C. Circuit that EPA Administrator Andrew Wheeler had signed a final rule repealing the Clean Power Plan and instituting new emission guidelines for existing power plants. EPA recommended that the court continue to hold the pending challenges to the Clean Power Plan in abeyance. West Virginia v. EPA,Nos. 15-1363 et al. (D.C. Cir. June 20, 2019).

Remedy Briefs to Be Submitted in July in Challenge to Lifting of Moratorium on Federal Coal Leasing; Federal Government Took Comments on Draft EA Through June 10

The federal district court for the District of Montana granted the federal government more time to submit briefing on the appropriate remedies for the government’s failure to comply with NEPA when Secretary of the Interior Ryan Zinke lifted the Obama administration’s moratorium on the federal coal leasing program. The federal government notified the court on May 22, 2019 that it had published a draft environmental assessment (EA) for the coal program in partial compliance with the court’s April 2019 order that found violations of NEPA and the Administrative Procedure Act. The plaintiffs countered that remedies briefing was still necessary despite publication of the draft EA. The court directed that the parties submit remedy briefs by the earlier of (1) 14 days after the defendants determine whether to issue a finding of no significant impact or to prepare an environmental impact statement or (2) July 22, 2019. The public comment period on the draft EA ended on June 10. Citizens for Clean Energy v. U.S. Department of Interior, No. 4:17-cv-00030 (D. Mont. June 18, 2019).

Environmental Groups Charged Federal Agencies with Ongoing Failure to Consider Information on Climate Change Impacts on Lake Okeechobee and Downstream Waters

Three environmental organizations filed a lawsuit in the federal district court for the Southern District of Florida asserting that the federal defendants were violating NEPA, the Endangered Species Act (ESA), and the Administrative Procedure Act (APA) by continuing to manage Lake Okeechobee under the Lake Okeechobee Regulation Schedule (LORS) and allowing “unmitigated releases of Lake Okeechobee water into the Caloosahatchee and St. Lucie rivers and estuaries.” The plaintiffs alleged, among other things, that past analyses of LORS under NEPA and the ESA “entirely failed to consider how climate change might affect LORS and harmful algal blooms.” They asserted that the U.S. Army Corps of Engineers was violating NEPA by failing to supplement its LORS NEPA analysis with “significant new information” regarding climate change impacts and toxic algae. They also asserted that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service were violating the ESA and the APA by failing to consider climate change effects. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 2:19-cv-14199 (S.D. Fla., filed June 11, 2019).

Environmental Groups Challenged Analysis of Cumulative Climate Change Impacts of Utah Oil and Gas Leases

Four environmental groups filed a lawsuit in federal court in Colorado challenging the U.S. Bureau of Land Management’s (BLM’s) decisions to issue 59 oil and gas leases covering 61,910.92 acres in northeast Utah. The plaintiffs asserted violations of the Federal Land Policy and Management Act, NEPA, and the APA, including that BLM failed to consider cumulative climate change impacts. Rocky Mountain Wild v. Bernhardt, No. 1:19-cv-01608 (D. Colo., filed June 5, 2019).

WildEarth Guardians Lawsuit Challenged Oil and Gas Leases in New Mexico

WildEarth Guardians filed a lawsuit challenging 210 oil and gas leases covering 68,232.94 acres of land in New Mexico in BLM’s Pecos District. The complaint asserted claims under the Federal Land Policy and Management Act, NEPA, and the APA, including a failure to take a hard look at the direct, indirect, and cumulative impacts of climate change. WildEarth Guardians v. Bernhardt, No. 1:19-cv-00505 (D.N.M., filed June 3, 2019).

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

Frontier Centre for Public Policy Issues Apology and Retraction of Accusations Against Climate Scientist Michael Mann

In 2011, climate scientists Michael Mann filed a libel claim against Timothy (“Tim”) Ball, The Frontier Centre for Public Policy, Inc. and an unnamed defendant (“John Doe”). The defendant Ball participated in an interview with the FCPP and John Doe during which Ball made false and defamatory statements implying that Michael Mann is guilty of criminal fraud in relation to the alleged “Climategate” scandal or alternatively that there are probably grounds to find Mann guilty. The plaintiff sought damages, an injunction against further publication of the defamatory statements, and a court order for the defendants to remove the interview containing the defamatory statements from all electronic databases, including the FCPP website. In June 2019, the FCPP settled with Mann and issued a retraction and apology on their website. The claims against Ball remain unresolved. Michael Mann v. Timothy (“Tim”) Ball, The Frontier Centre for Public Policy, Inc. and John Doe, Court File No. VLC-S-S-111913 (Supreme Court of British Columbia).

People’s Climate Case Dismissed by the European General Court

In 2018, ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, brought an action in the EU General Court seeking to compel the EU to take more stringent greenhouse gas (GHG) emissions reductions. Plaintiffs allege that the EU’s existing target to reduce domestic GHG emissions by 40% by 2030, as compared to 1990 levels, is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property.

The European General Court did not rule on the merits, but dismissed the case on procedural grounds, finding that the plaintiffs could not bring the case since they are not sufficiently and directly affected by these policies (“direct and individual concern” criterion). The court concluded that the plaintiffs did not have standing to bring the case because climate change affects every individual in one manner or another and case law requires that plaintiffs are affected by the contested act in a manner that is “peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.” The court rejected plaintiffs’ argument that the interpretation of the concept of ‘individual concern’ referred to in the fourth paragraph of Article 263 TFEU is not compatible with a fundamental right to effective judicial protection under Article 47 of the Charter of Fundamental Rights. Nor did the court find that plaintiffs could bring the case under the other possible criteria under the fourth paragraph of Article 263 of the TFEU which would require that they were direct addressees of the legislative package in question or they contested a regulatory act that was of direct concern to them.

A press release states that the families, together with the Saami Youth Association from Sweden plan to appeal to the European Court of Justice before 15 July 2019. Armando Ferrão Carvalho and Others v. The European Parliament and the Council (“The People’s Climate Case”) (European General Court)

Ontario Court of Appeal Upholds Canadian Federal Greenhouse Gas Pollution Pricing Act as Constitutional

The Province of Ontario filed suit in the Ontario Court of Appeal seeking consideration of whether the Greenhouse Gas Pollution Pricing Act (GGPPA) is unconstitutional. The GGPPA became law in June 2018 and allows the national government to set a price on carbon, charging for GHG emissions under a carbon tax program. Ontario alleged that Parliament exceeded its constitutional authority in passing the GGPPA, arguing that the GGPPA is not authorized by the “national concern branch of the peace, order, and good government power” because the provinces are capable of regulating GHG emissions themselves and that “there is no need to expand the scope of federal jurisdiction to impose a one-size-fits-all federal carbon price.” Ontario further argues that even if the GGPPA falls within the scope of a national concern, the GGPPA represents an unconstitutional tax because it does not provide an adequate nexus between the charges it imposes and its regulatory purpose.

On June 28, 2019, the court upheld the constitutionality of the GGPPA. This decision marks the second decision among four provincial cases challenging the constitutionality of the GGPPA and the federal carbon pricing regime. The court determined that the GGPPA was constitutional under Parliament’s power over matters of national concern to the peace, order, and good government of Canada. The court characterized the GGPPA as validly “establishing minimum national standards to reduce greenhouse gas emissions.” This is broader than the Saskatchewan Court of Appeal’s characterization of the GGPPA as validly “establishing minimum national GHG emissions pricing standards to reduce GHG emissions.” The Court of Appeal for Ontario also upheld both the large emitters output-based performance system (Part 2 of the Act), and the fuel levies (Part 1 of the Act), which it construed as a regulatory charge rather than a tax. Ontario v. Canada re Greenhouse Gas Pollution Pricing Act (Ontario Court of Appeal)

Saskatchewan Attorney General Appeals Decision that Canadian Federal Greenhouse Gas Pollution Pricing Act is Constitutional to the Supreme Court of Canada

In April of 2018, the Province of Saskatchewan filed a reference case with the Court of Appeal for Saskatchewan, asking whether the Greenhouse Gas Pollution Pricing Act (GGPPA) was an unconstitutional intrusion into provincial jurisdiction. On May 3, 2019, the Court of Appeal for Saskatchewan ruled that the (GGPPA) is not unconstitutional in whole or in part by a 3-2 majority. This decision was discussed in a previous update. Subsequently, the Attorney General for Saskatchewan appealed the decision. Related documents will be posted and summarized when available. Saskatchewan v. Canada re Greenhouse Gas Pollution Pricing Act; Bill C-74, Part 5 (Supreme Court of Canada)

French NGOs and Local Governments Take First Step in Climate-Related Legal Action Against French Oil Company Total

The French NGOs Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires along with more than a dozen French local governments have taken the first step in a legal proceeding against French oil company Total. Provided this action proceeds, it will represent the first French climate lawsuit against a fossil fuel company. The initiative seeks a court order forcing Total to issue a corporate strategy that 1) identifies the risks resulting from GHG emissions resulting from the use of goods and services that Total produces, 2) identifies the risks of serious climate-related harms as outlined in the last IPCC special report of October 2018, and 3) undertakes action to ensure the company’s activities align with a trajectory compatible with the climate goals of the Paris Agreement. The plaintiffs argue these obligations stem from domestic law Article L. 225-102-4.-I of the Commercial Code (Loi 27 Mars 2017 sur le devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre). This law requires a company to produce a “plan of vigilance” that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment, and public health that could result directly or indirectly from the operations of the company and of the companies it controls.

On June 18, 2019, following a formal meeting with Total, the plaintiffs announced the launch of a legal proceeding and issued a letter of formal notice (mise en demeure) to Total. Plaintiffs assert that Total now has 3 months to include adequate GHG emissions reductions targets in its latest “plan de vigilance or they will file a lawsuit seeking a court order to force the company to comply with the law and the goals of the Paris Climate Agreement. Notre Affaire à Tous and Others v. Total (not yet filed).

Coalition of Women Sue the Federation of Pakistan Over Inaction on Climate Change

A coalition of women filed a constitutional petition on their behalf and on behalf of future generations against the Federation of Pakistan. They allege that the federal government’s inaction on climate change violated their fundamental rights including the right to a clean and healthy environment and a climate capable of sustaining human life (a right which was previously recognized in Asghar Leghari v. Federation of Pakistan 2018 CLD 424). They further argue that since climate change has a disproportionate impact on women, the government’s climate inaction violates plaintiffs’ rights to equal protection under the law and no discrimination on the basis of sex.

Plaintiffs allege that the government specifically has failed to prioritize clean energy projects, even though solar and wind energy has become cheaper than conventional energy, and has not approved any clean energy projects between December 2017 and the filing of the suit. Plaintiffs argue this failure to abate greenhouse gas emissions violates the “clear mandate of the RE Policy 2006, the firm commitments made by the State of Pakistan pursuant to the Paris Agreement and the urgent threat of climate change. Plaintiffs further argue these violations amount to violations of constitutional rights. They state that the superior courts of Pakistan have held that “Fundamental Rights like the right to life and security of person under Articles 4 and 9 [of the constitution] include the right to a healthy and clean environment,” and have also “read” “the right to human dignity under Article 14” “with the constitutional principles of democracy, equality, social, economic and political justice” “including within their ambit the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra‑generational equity and public trust doctrine.” Maria Khan et al. v. Federation of Pakistan et al. Writ Petition No.8960 of 2019 (Lahore High Court (Pakistan)).

Netherlands’ Supreme Court Hears Appeals in Landmark Urgenda Climate Case

On May 24, 2019, the Netherlands’ Supreme Court heard the latest round of appeals in the landmark Urgenda climate case. The Dutch government appealed the decision October 2018 decision of the Hague Court of Appeal which upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the European Convention on Human Rights (ECHR). The Hague Court of Appeal recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change. The court rejected the government’s argument that the lower court decision constitutes “an order to create legislation” or violation of trias politica and the role of courts under the Dutch constitution.

The government’s appeal and Urgenda’s response are both available in Dutch in our database. Summary of those documents will be added once translations become available. Legal counsel for Urgenda reports that the foundation emphasized human rights arguments before the Supreme Court. Both Urgenda and the government were to submit written replies by June 21, 2019. An Advocate General decision will then be issued followed by a decision from the Supreme Court. Urgenda Foundation v. State of the Netherlands

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