By Margaret Barry and Korey Silverman-Roati
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 # 145.
FEATURED CASE
States and Coal Company Sought Review of D.C. Circuit Decision Vacating Affordable Clean Energy Rule
Two petitions for writ of certiorari were filed in the U.S. Supreme Court seeking review of the D.C. Circuit’s January opinion vacating EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The first petition was filed by West Virginia and 18 other states that had intervened to defend the repeal and replacement rule, known as the Affordable Clean Energy rule. The states’ petition presented the question of whether Section 111(d) of the Clean Air Act constitutionally authorizes EPA “to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements.” They argued that Congress had not clearly authorized EPA to exercise such “expansive” powers and that the D.C. Circuit majority opinion’s interpretation was foreclosed by the statute and violated separation of powers. The states argued that the Supreme Court’s stay of the Clean Power Plan while it was under review by the D.C. Circuit in 2016 signaled that the legal framework for the Clean Power Plan “hinges on important issues of federal that EPA then—and the court below now—got so wrong this Court was likely to grant review.” The states contended that further delay in the Court’s resolution of these “weighty issues” would have “serious and far-reaching costs.” The second petition was filed by a coal mining company. The coal company’s petition presented the question of whether Section 111(d) “grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.” The company argued that the D.C. Circuit erred by “untethering” Section 111(d) standards from the existing source being regulated. Like the states, the company contended that Supreme Court had already recognized the critical importance of this question when it stayed the Clean Power Plan. The company argued that debates regarding climate change and policies to address climate change “will not be resolved anytime soon” but that “what must be resolved as soon as possible is who has the authority to decide those issues on an industry-wide scale—Congress or the EPA.” EPA’s response to the petitions is due June 3, 2021. West Virginia v. EPA, No. 20-1530 (U.S. Apr. 29, 2021); North American Coal Corp. v. EPA, No. 20-1531 (U.S. Apr. 30, 2021).
DECISIONS AND SETTLEMENTS
Parties Voluntarily Dismissed Appeals of Federal Court Decision Requiring More Climate Change Analysis for Wyoming Oil and Gas Leases
On April 15, 2021, federal defendants, defendant-intervenors, and environmental groups filed a stipulation for dismissal of appeals of a district court’s November 2020 decision finding that the U.S. Bureau of Land Management’s (BLM’s) supplemental environmental assessment (EA) for oil and gas leases in Wyoming did not comply with the National Environmental Policy Act because it failed to adequately consider climate change impacts. BLM prepared the supplemental EA in response to the court’s decision in March 2019 that identified shortcomings in BLM’s original climate change analysis for the leases. The federal defendants, the States of Wyoming and Utah, and several trade groups appealed the district court’s November 2020 decision. WildEarth Guardians v. Haaland, Nos. 21-5006, 21-5020, 21-5021, 21-5023, 21-5024 (D.C. Cir. Apr. 28, 2021).
D.C. Circuit Denied Appeal of Remand Order in Nonprofit’s Consumer Protection Case Against Exxon
The D.C. Circuit Court of Appeals denied Exxon Mobil Corporation’s (Exxon’s) petition for permission to appeal pursuant to the Class Action Fairness Act from the district court order remanding the nonprofit organization Beyond Pesticides’ lawsuit alleging Exxon violated the District of Columbia Consumer Protection Procedures Act by falsely marketing and advertising its products as clean energy. The D.C. Circuit found that it was “unclear as a matter of District of Columbia law” whether Beyond Pesticides’ action was required to be litigated as a class action and that District of Columbia courts should determine how the action should proceed. In re Exxon Mobil Corp., No. 21-8001 (D.C. Cir. Apr. 23, 2021).
Ninth Circuit Granted Voluntary Dismissal of Remaining Appeal of Order Vacating Negative Jurisdictional Determination for Salt Ponds on San Francisco Bay
Seven weeks after the U.S. Environmental Protection Agency (EPA) withdrew its appeal of a district court’s order that vacated a negative jurisdictional determination under the Clean Water Act for the Redwood City Salt Ponds along San Francisco Bay, the Ninth Circuit Court of Appeals granted a motion for voluntary dismissal filed by the limited liability company that requested the jurisdictional determination. San Francisco Baykeeper and other plaintiffs’ complaint alleged that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California’s ability to mitigate sea level rise impacts, though the district court’s decision did not address this issue, focusing instead on EPA’s determination that the salt ponds had been transformed into “fast land” prior to enactment of the Clean Water Act. San Francisco Baykeeper v. EPA, No. 20-17367 (9th Cir. Apr. 19, 2021).
United States Agreed to Dismissal of Appeal in Unsuccessful Trump-Era Challenge to California-Quebec Cap-and-Trade Linkage
The United States, the State of California, and other defendants and intervenor-defendants stipulated and agreed to the voluntary dismissal of the United States’ appeal of a California federal court’s judgment in favor of California and the other defendants in the U.S.’s challenge to the constitutionality of the linkage between California’s greenhouse gas emissions cap-and-trade program and Quebec trading program. United States v. California, No. 20-16789 (9th Cir. Apr. 21, 2021).
Ninth Circuit Said Biden Action Mooted Case Challenging Trump Revocation of Withdrawal of Oceans Lands from Oil and Gas Leasing
The Ninth Circuit Court of Appeals vacated the judgment of an Alaska federal district court that held that President Trump exceeded presidential authority granted by the Outer Continental Shelf Lands Act when he issued an executive order revoking President Obama’s withdrawals of certain areas in the Arctic and Atlantic Oceans from oil and gas leasing. The Ninth Circuit agreed with the parties that President Biden’s revocation of President Trump’s executive order rendered the case moot. The Ninth Circuit directed the district court to dismiss the case without prejudice. League of Conservation Voters v. Biden, No. 19-35460 (9th Cir. Apr. 13, 2021).
D.C. Federal Court Allowed Trade Group and Wyoming to Intervene in Challenge to Oil and Gas Leases
The federal district court for the District of Columbia allowed American Petroleum Institute and the State of Wyoming to intervene as defendants in a lawsuit filed earlier in 2021 in which environmental groups challenge BLM’s approval of 1,153 oil and gas leases on public lands in Colorado, New Mexico, Utah, and Wyoming. The court found that both parties were entitled to intervene as of right. WildEarth Guardians v. Haaland, No. 1:21-cv-00175 (D.D.C. Apr. 20, 2021).
Montana Federal Court Vacated Approvals for Mining Project
The federal district court for the District of Montana held that it was arbitrary and capricious for federal agencies not to consider the environmental effects of Phase II of a mine project in northwest Montana in connection with the approval of Phase I of the project, or to adequately explain why they could omit the effects of Phase II. The plaintiffs asserted Endangered Species Act claims, focusing on the federal agencies’ consideration of impacts on grizzly bears and bull trout; the plaintiffs alleged that bull trout are “particularly vulnerable” to climate change because they require cold water to spawn and rear. The court vacated and remanded the approvals for the project. Ksanka Kupaqa Xaʾⱡȼin v. U.S. Fish & Wildlife Service, No. 9:19-cv-00020 (D. Mont. Apr. 14, 2021).
Fish and Wildlife Service Agreed to Deadline for Response to Request for New Critical Habitat for Mount Graham Red Squirrel
The U.S. Fish and Wildlife Service, the Secretary of the Interior, and two environmental groups agreed to a settlement resolving the groups’ lawsuit to compel a 12-month finding on their petition to revise the Mount Graham red squirrel’s critical habitat. The FWS agreed to submit a 12-month finding for publication in the Federal Register by July 29, 2021. The finding must indicate how the FWS intends to proceed with the requested revision of the critical habitat designation. The plaintiffs alleged that the squirrel’s currently designated critical habitat had been degraded or destroyed by climate change-influenced factors such as wildfire and drought, and that revision of the designation to include lower-elevation areas was essential to the squirrel’s survival. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:20-cv-00525 (D. Ariz. Apr. 12, 2021).
Arizona Federal Court Declined to Put Challenge to Trump “Waters of the United States” Rule on Hold
The federal district court for the District of Arizona denied EPA and the U.S. Army Corps of Engineers’ motion to hold in abeyance a case challenging the Trump administration’s rules defining “waters of the United States” under the Clean Water Act. The court was persuaded by the plaintiffs’ arguments that ongoing implementation of the Trump administration’s 2020 rule defining “waters of the United States” would cause damage to the plaintiffs “with an interest in the integrity of the nation’s waters” and that the federal defendants failed to establish “a clear case of hardship or inequity in being required to go forward.” Therefore, “[b]ecause an abeyance of this litigation may result in damage to Plaintiffs or others and there is no indication that agency review of the challenged rule will be completed within a reasonable time, the Court does not find that an abeyance is appropriate.” Pasqua Yaqui Tribe v. EPA, No. 4:20-cv-00266 (D. Ariz. Apr. 12, 2021).
Challenge to Previous Summer Flounder Quota Dismissed; Summary Judgment Motions Pending in Challenges to Revised Quota Rules
The federal district court for the Southern District of New York ruled that a lawsuit brought in 2019 by the New York State Department of Environmental Conservation and its Commissioner (NYSDEC) to challenge the National Marine Fisheries Services’ rules establishing summer flounder quotas were made moot by subsequent rules that revised the rules at issue. The court declined NYSDEC’s request for administratively closure instead of dismissal of the case to allow for reopening if the challenged rules were reinstated, finding that the federal defendants’ power to reenact the original rules was “not enough to keep this controversy alive.” The court noted that the plaintiffs were not without recourse since they had already filed a suit challenging the revised rules. Briefing on summary judgment motions in the case challenging the revised rules was completed on April 30. In both cases, the New York plaintiffs argue that the allocation of the summer flounder quota is based on obsolete data that does not reflect the fishery’s northeast shift, which may be due in part to ocean warming. Seggos v. Raimondo, No. 1:19-cv-09380 (S.D.N.Y. Apr. 9, 2021); New York v. Raimondo, No. 1:21-cv-00304 (S.D.N.Y.).
Environmental Review Not Required for Approval of Minnesota Utility’s Agreements to Purchase Power from New Subsidiary-Owned Gas Plant in Wisconsin
Reversing an intermediate appellate court’s decision, the Minnesota Supreme Court held that the Minnesota Public Utilities Commission’s consideration of affiliated-interest agreements governing construction and operation of a natural gas power plant in Wisconsin by a Minnesota utility’s affiliate did not require review under the Minnesota Environmental Policy Act (MEPA). Under the utility’s agreements with the affiliate—which owned half of the Wisconsin power plant and half of the power generated by the plant—the affiliate agreed to sell 48% of capacity produced by the plant to the utility. First, the Supreme Court concluded that the statute requiring Commission approval of affiliated-interest agreement did not require environmental review. The court acknowledged that the Commission’s determination of whether an affiliated-interest agreement was “reasonable and consistent with the public interest” could take environmental impacts into account, but the court found that this “focused consideration” was “narrower than the broad consideration of the environmental impact of a utility action” in an environmental review under MEPA. Second, the Supreme Court rejected the intermediate appellate court’s conclusion that the Commission’s approval of the agreements was an “indirect cause” of the physical activities of constructing and operating the power plant and therefore a “project” under MEPA. The Minnesota Supreme Court adopted the U.S. Supreme Court’s causation standard for the National Environmental Policy Act in Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), and concluded that “in light of the informational role served by MEPA review, the line that must be drawn requires a ‘reasonably close causal relationship’ between the environmental effect and the alleged cause.” In this case, the Minnesota Supreme Court found that MEPA review did not apply to the Commission’s decision because it did not have the authority to permit construction and operation of the power plant, which the utility said would be built and run without the Commission’s approval. The court remanded for the Court of Appeals to determine whether the Commission’s approval of the affiliated-interest agreements was supported by substantial evidence because the Court of Appeals had not yet addressed that issue. A dissenting justice would have held that MEPA’s plain language encompassed the Commission’s approval of the agreements and that application of MEPA would not regulate interstate commerce in violation of the Commerce Clause. In re Minnesota Power’s Petition for Approval of EnergyForward Resource Package, Nos. A19-0688 & A19-0704 (Minn. Apr. 21, 2021).
Minnesota Court Said City Failed to Consider Cumulative Climate Change Effects in Review of Motorsports Park
The Minnesota Court of Appeals reversed the City of Eagle Lake’s determination that a proposed motorsports park did not require an environmental impact statement (EIS) under the Minnesota Environmental Policy Act. The court found that the City failed to address agency and county concerns about potential cumulative effects from greenhouse gas emissions and did not rely on substantial evidence with respect to the action’s potential effects on wildlife. With respect to climate change, both the Minnesota Department of Natural Resources and the Blue Earth County Property and Environmental Resources Department commented regarding the absence of consideration of potential climate change effects and that the City failed to respond substantively. The court rejected other arguments related to noise impacts, waste storage and disposal, land alterations, wetlands, and procedure. The court remanded for a new determination of whether an EIS was required. In re Determination of the Need for an Environmental Impact Statement for the Mankato Motorsports Park, No. A20-0952 (Minn. Ct. App. Apr. 26, 2021).
Developers of Southern California Warehouse Project Agreed to Greenhouse Gas Mitigation Measures to Resolve CEQA Claims
Environmental groups and the developer of a 2,610-acre warehouse project in the City of Moreno Valley in southern California reached an agreement that resolves pending California Environmental Quality Act (CEQA) claims of the environmental groups. Claims brought by other parties are still pending, but the environmental groups agreed not to oppose the project should the courts require reconsideration of its approvals. The settlement agreement requires the developer to ensure that specified actions to address greenhouse gas emissions and air quality are carried out, as well as actions related to biological resources and community benefits. The greenhouse gas emissions and air quality measures include grant programs for electric trucks and cars; on-site solar generation commitments; contributions to a solar advocacy fund; on-site electric vehicle chargers; electrification of equipment; and provision of lower-carbon hydrogen to tenants if available under commercially reasonable terms. Center for Community Action & Environmental Justice v. City of Moreno Valley, No. RIC1511327 (Cal. Super. Ct.).
California Dismissed Challenges to Transit-Oriented Development Plans in San Diego
A California Superior Court dismissed two lawsuits challenging the City of San Diego’s approvals of two land use plans—the Morena Corridor Specific Plan, which addressed approximately 280 acres and was intended to create a “pedestrian-oriented village” and increase housing near transportation facilities, and the Balboa Avenue Station Area Specific Plan, which affects approximately 210 acres and also was intended to provide a framework for transit-oriented development. The court rejected neighborhood groups’ claims that the City failed to comply with the California Environmental Quality Act and that the plans violated the City’s General Plan and Climate Action Plan as well as community plans. Morena United v. City of San Diego, No. 37-2019-00053964-CU-TT-CTL (Cal. Super. Ct. Apr. 9, 2021); Friends of Rose Creek v. City of San Diego, No. 37-2019-00053679-CU-TT-CTL (Cal. Super. Ct. Apr. 9, 2021).
NEW CASES, MOTIONS, AND OTHER NOTICES
New York City Filed Consumer Protection Lawsuit Against Oil and Gas Companies and Trade Group
New York City filed a lawsuit in New York State Supreme Court against three oil and gas companies and American Petroleum Institute alleging that the defendants violated the City’s Consumer Protection Law (CPL) by systematically and intentionally misleading New York City consumers about their products’ role in causing climate change. The City’s complaint alleged that the companies violated the CPL by “affirmatively misrepresenting the environmental benefits of various fossil fuel products sold at their gasoline stations in New York City” in advertisements and promotional materials by portraying the products as good for the climate and environment without disclosing the products’ impacts on greenhouse gas emissions levels and climate change. The City also alleged that the companies engaged in a “greenwashing” campaign by creating misleading impressions of the role of renewable energy in the companies’ businesses and of their efforts to reduce their carbon footprints. In addition, the City alleged that American Petroleum Institute engaged in greenwashing by exaggerating and misrepresenting the environmental benefits of its members’ products and by misrepresenting its members’ investments in clean energy as well as oil and gas’s role in combatting climate change. The City sought injunctive relief, civil penalties ($350 for each violation or $500 for each knowing violation), and attorney fees and costs. City of New York v. Exxon Mobil Corp., No. 451071/2021 (N.Y. Sup. Ct., filed Apr. 22, 2021).
Maryland County Filed Climate Change Lawsuit Against Fossil Fuel Companies and Trade Group
Anne Arundel County, Maryland filed a lawsuit in state court against fossil fuel companies and American Petroleum Institute seeking to hold them liable for the physical, environmental, social, and economic consequences of climate change in Anne Arundel County. (Annapolis, a city in the county, previously filed a separate lawsuit against fossil fuel companies.) In its lawsuit, the County asserted claims of public nuisance, private nuisance, strict liability for failure to warn, negligent failure to warn, trespass, and violations of the Maryland Consumer Protection Act. The County alleged that the defendants, despite knowing for more than 50 years that greenhouse gas emissions from their fossil fuel products would have significant adverse impacts on climate and sea levels, concealed the risks of climate change and promoted false and misleading information, including campaigns targeted at County residents to create doubts regarding the impacts of fossil fuels. The County asserted that the defendants were “directly responsible for a substantial portion of the climate crisis-related impacts in Anne Arundel County,” including sea level rise, storm surge, and flooding, as well as more frequent, longer-lasting, and more severe extreme weather events. The County seeks compensatory and punitive damages, equitable relief, attorney fees and costs of suit, and disgorgement of profits, as well as recovery for injury or loss sustained as a result of practices barred by the Consumer Protection Act. Anne Arundel County v. BP p.l.c., No. C-02-CV-21-000565 (Md. Cir. Ct., filed Apr. 26, 2021).
Other developments in climate change cases brought by local and state governments in the past month include:
- Fossil fuel companies appealing the District of Hawaii’s remand order in cases brought by the City and County of Honolulu and the County of Maui asked the Ninth Circuit for a 60-day extension of time in which to file their opening brief. They sought the extension to allow them to address the Supreme Court’s forthcoming decision in BP p.l.c. v. Mayor & City Council of Baltimore, which the companies said would determine whether the defendants were limited to contesting only the district court’s rejection of jurisdiction under the federal-officer removal statute. Maui and Honolulu oppose the extension request. County of Maui v. Chevron USA Inc., No. 21-15318 (9th Cir. Apr. 30, 2021); City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir. Apr. 30, 2021).
- In Minnesota’s case against American Petroleum Institute and fossil fuel companies, briefing was completed on April 14, 2021 for the defendants’ motion to stay execution of the remand order pending appeal. A temporary stay remained in place. On April 15, Minnesota filed a motion for costs and expenses, including attorney fees, incurred as a result of defendants’ “improper removal.” Minnesota v. American Petroleum Institute, No. 20-cv-1636 (D. Minn.).
- The federal district court for the District of Delaware scheduled oral argument on Delaware’s motion to remand on May 19, 2021, allocating each side up to 75 minutes for its arguments. On April 13, 2021, the defendants wrote to inform the court of the Second Circuit’s decision affirming dismissal of New York City’s climate change case against fossil fuel companies. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del.).
- Fossil fuel company defendants also filed notices about the Second Circuit decision in other cases where motions to remand are pending, including in cases brought by the District of Columbia, City of Hoboken, City of Oakland, and City and County of San Francisco. The defendants argued that the Second Circuit’s decision confirmed that the plaintiff’s claims necessarily arise under federal law. The defendants also argued that the decision supported their other grounds for federal jurisdiction, including the federal officer removal statute, the Outer Continental Shelf Lands Act, federal enclave jurisdiction, and Grable jurisdiction. In Oakland and San Francisco’s case, the defendants also argued that the Second Circuit’s decision made it more likely that the Supreme Court would grant certiorari. In response, Oakland and San Francisco argued that the Second Circuit opinion did not address removal jurisdiction and that the Second Circuit’s preemption analysis was not relevant to the claims in these cases, which the plaintiffs characterized as based on allegations of “wrongful promotion” of fossil fuels. In Hoboken’s case, the City argued that the Second Circuit itself had said that it was addressing a different question than the removability question at issue in a motion for remand. Hoboken also noted the district court’s decision in Minnesota v. American Petroleum Institute and a decision by the Central District of California as recent cases that had recently joined “the ever-growing chorus of courts” rejecting the defendants’ arguments for removal. The District of Columbia argued that the Second Circuit’s opinion addressed a different issue than the issue before the court; that the Second Circuit expressly distinguished the “fleet” of climate cases in which federal courts had granted remand; and that D.C.’s case would be distinguishable in any event because it was based on a statutory consumer protection claim. District of Columbia v. Exxon Mobil Corp., No. 1:20-cv-01932 (D.D.C.); City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J.); City of Oakland v. BP p.l.c., 3:17-cv-06011 (N.D. Cal.).
- In King County’s case, the federal district court for the Western District of Washington accepted the parties’ joint proposal that the stay of the action continue pending the resolution of the petition for writ of certiorari filed in the Supreme Court in Chevron Corp. v. City of Oakland. The defendants subsequently filed a notice about the Second Circuit’s opinion in City of New York v. BP p.l.c., stating that they intended to request supplemental briefing to address the case once the stay was lifted. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash.).
Oregon LNG Project Developers Sought Abeyance to Reassess After Unfavorable Regulatory Determinations
On April 22, 2021, the developers of the Jordan Cove Liquefied Natural Gas (LNG) Project moved to suspend merits briefing and hold cases challenging the Federal Energy Regulatory Commission’s (FERC) authorization of the project in abeyance. The developers argued that abeyance was warranted to allow the developers to assess the impact of recent regulatory decisions under the Clean Water Act and Coastal Zone Management Act that would prevent the project from commencing. Also on April 22, FERC filed its merits brief, arguing that it had complied with the National Environmental Policy Act, including with respect to the analysis of greenhouse gas emissions. FERC also argued that the petitioners did not have standing and that the challenges were not ripe for review since it was not clear the project would proceed. FERC also argued that it appropriately found that the pipeline portion of the project would service the public convenience and necessity under Section 7 of the Natural Gas Act and that its conditional authorizations for the project were lawful. Evans v. Federal Energy Regulatory Commission, No. 20-1161 (D.C. Cir. Apr. 22, 2021).
Lawsuit Challenged 2021 Reissuance of Nationwide Permit for Oil and Gas Projects
Center for Biological Diversity and four other environmental groups filed a lawsuit in the federal district court for the District of Montana challenging the 2021 reissuance of Nationwide Permit (NWP) 12, a general permit covering oil and gas pipeline projects under Section 404(e) of the Clean Water Act. The groups alleged that the U.S. Army Corps of Engineers did not comply with the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, or the Administrative Procedure Act, including because the Corps failed to adequately evaluate pipeline projects’ contribution to climate change. In particular, the groups alleged that the Corps failed to consider potential increased greenhouse gas emissions caused by pipeline construction and lifecycle emissions associated with oil and gas transported by pipeline projects. The court previously ruled that the 2017 issuance of NWP 12 violated the Endangered Species Act because the Corps failed to undertake Section 7 consultation. In the appeal of that earlier series of decisions, the Corps and other federal appellants have asked the Ninth Circuit to vacate the district court’s decisions because the case is now moot due to the reissuance of NWP 12 and President Biden’s revocation of the presidential permit for the Keystone XL pipeline—the focal point of the earlier litigation. Keystone XL was authorized under the 2017 NWP 12. Center for Biological Diversity v. Scott, No. 4:21-cv-00047 (D. Mont., filed May 3, 2021); Northern Plains Resource Council v. U.S. Army Corps of Engineers, Nos. 20-35412, 20-35414, 20-35415, 20-35432 (9th Cir.).
Lawsuit Cited Forest Service’s Failure to Contend with Recent Climate Change Studies in Approvals of Logging Projects
A lawsuit filed in the federal district court for the District of Idaho asserted that the U.S. Forest Service’s approvals of two “massive” logging projects in the Nez Perce-Clearwater National Forests violated the National Environmental Policy Act (NEPA), the National Forest Management Act, the Endangered Species Act, and the Administrative Procedure Act. Under NEPA, the plaintiff alleged that the Forest Service failed to address “mounting scientific evidence” that undermined the agency’s assumptions about logging, forest health, fire, and climate change. According to the complaint, a purpose of the projects was to improve resilience so as to better address climate change, but the plaintiff alleged it had submitted numerous studies that questioned the Forest Service’s rationale for the logging, especially logging in old growth, which the plaintiff alleged was particularly important for resilience. The plaintiff contended that an environmental impact statement should be required to address “[t]he highly controversial, unknown, and/or uncertain direct, indirect, and cumulative impacts of approved logging and other activities on wildfire risk, forest health, and climate change.” Friends of the Clearwater v. Probert, No. 3:21-cv-189 (D. Idaho, filed Apr. 28, 2021).
States Sought to Block Use of Interim Values for Social Cost of Greenhouse Gases
Missouri and 12 other states filed a motion for a preliminary injunction in the federal district court for the Eastern District of Missouri seeking to block the Biden administration from using the social cost of greenhouse gases released in February 2021 by the Interagency Working Group on Social Cost of Greenhouse Gases. The Working Group was created by President Biden’s Executive Order 13990, which also directed the Working Group to issue an interim social cost of greenhouse gases for use by federal agencies in their rulemaking and other agency actions until final values are issued. The states argued they were likely to succeed on their separation of powers and Administrative Procedure Act claims. They also argued that use of the interim values for social cost of carbon would irreparably injure them, including by depriving them of the opportunity to participate in notice-and-comment rulemaking and by injuring their sovereign interests by compelling them to use the social cost of greenhouse gases in their implementation of cooperative-federalism programs. Missouri v. Biden, No. 4:21-cv-00287 (E.D. Mo. May 3, 2021).
More States Challenged Interim Estimates for Social Cost of Greenhouse Gases
In a lawsuit filed in the federal district court for the Western District of Louisiana, Louisiana and nine other states asked the court to hold that interim estimates for the social cost of greenhouse gases released by the Interagency Working Group on Social Cost of Greenhouse Gases in February 2021 are invalid, arbitrary and capricious, and contrary to law, and to bar federal agencies from using the interim estimates. The states asserted counts under the Administrative Procedure Act and of ultra vires action. The allegations include that the interim estimates contravene federal statutes—the Energy Policy and Conservation Act, the Clean Air Act, NEPA, the Mineral Leasing Act, and the Outer Continental Shelf Lands Act—by directing agencies to consider global effects of greenhouse gases. The states also alleged that no statute authorized a global-effects measure or discount rates that deviated from “the standard 3 percent and 7 percent.” They contended the interim estimates ignored positive externalities of energy production, and that the interim estimates were substantive rules that required notice and comment. Louisiana v. Biden, No. 2:21-cv-01074 (W.D. La., filed Apr. 22, 2021).
Wyoming Asked Court to Restart Federal Oil and Gas Leasing; Federal Defendants Sought to Move Louisiana Case to Wyoming
On May 3, 2021, Wyoming filed a motion in the federal district court for the District of Wyoming seeking a preliminary injunction to enjoin the Biden administration’s suspension of new oil and gas leasing on public lands and in offshore waters while agencies review leasing practices. Wyoming argued it was likely to succeed on the merits of its claims under the Federal Land Planning and Management Act, the Mineral Leasing Act, the Administrative Procedure Act, and the National Environmental Policy Act. Wyoming also contended it would suffer irreparable harm on four fronts: loss of revenue from federal lease sales, los of revenue from minerals Wyoming cannot recover, environmental consequences such as increased emissions from less efficient environmental controls, and procedural injury. Wyoming argued that the “purported unsubstantiated greenhouse gas benefits do not outweigh the public interest in ensuring compliance with federal law which, in turn, generates substantial revenue for the federal government.” In April, conservation groups filed a motion to intervene on behalf of the defendants. Wyoming v. U.S. Department of Interior, No. 0:21-cv-00056 (D. Wyo.).
In a separate case brought in the Western District of Louisiana challenging the alleged moratorium on federal oil and gas leasing, the defendants asked the court to transfer the case to the District of Wyoming under the Fifth Circuit’s first-to-file rule, which the defendants said was applicable given the “potential significant overlap” between the two cases. Alternatively, the defendants asked the court to consider severing and transferring the claims concerning onshore leasing while allowing the offshore leasing claims to remain in the Louisiana federal court. The plaintiffs—Louisiana and other states—opposed the motion to transfer. They also opposed a motion by conservation groups to intervene in the case. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La.).
Lawsuit Sought to Compel Response to Petition for Reconsideration of 2009 Greenhouse Gas Endangerment Finding
Four California businesses, a trade association, and an individual business owner filed a lawsuit in the federal district court for the Eastern District of California to compel EPA to respond to their 2017 Petition to Reconsider Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15,2 2009). EPA denied the petition on January 19, 2021, but on March 23, 2021, EPA withdrew the denial. EPA stated that the January denial did not provide an adequate justification for denial and that it intended to reassess the petition. Liberty Packing Co. v. EPA, No. 2:21-cv-00724 (E.D. Cal., filed Apr. 22, 2021).
Center for Biological Diversity Sought Action on Climate Change-Threatened Species
Center for Biological Diversity filed an Endangered Species Act lawsuit in federal court in the District of Columbia to compel the U.S. Fish and Wildlife Service to classify nine species as endangered or threatened and to designate critical habitat for 10 listed species. The complaint alleged that the 19 species (five insects, 11 plants, a mammal, and two aquatic species) “are at risk of extinction due to habitat degradation and destruction, climate change, and other threats.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:21-cv-01045 (D.D.C., filed Apr. 15, 2021).
Challenge to Federal Approvals of Obama Presidential Center Alleged Violations in Connection with Modifications to Resilience Project
Two not-for-profit organizations and five individuals filed a lawsuit in the federal district court for the Northern District of Illinois asserting that federal approvals of the construction of the Obama Presidential Center in Jackson Park in Chicago failed to comply with “the letter and spirit” of federal statutes, including Section 4(f) of the Department of Transportation Act, Section 106 of the National Historic Preservation Act, the Urban Park and Recreation Recovery Act, and the National Environmental Policy Act. The plaintiffs’ allegations also included that the Obama Presidential Center would have significant and permanent impacts on the Great Lakes Fishery and Ecosystem Restoration Project at Jackson Park, a large project led by the U.S. Army Corps of Engineers and designed to address climate change’s impacts on the South Side of Chicago, among other environmental functions. The plaintiffs asserted that the Corps’ approval of modifications to the project violated the Rivers and Harbors Act and the Clean Water Act. Protect Our Parks, Inc. v. Buttigieg, No. 1:21-cv-02006 (N.D. Ill., filed Apr. 14, 2021).
Lawsuit Challenging High-Speed Rail Rule Cited Failure to Consider Impacts Associated with Increasing Rainfall
In a lawsuit challenging the Federal Railroad Administration’s (FRA’s) approval of a “Rule of Particular Applicability” for a high-speed rail technology proposed for use in Texas, the plaintiffs included a claim under the National Environmental Policy Act that alleges that the defendants failed to consider how the potential rail project’s design would account for increasing rainfall levels resulting from climate change. The plaintiffs alleged that “every flood plain crossing, wetland area, creek crossing, and drainage swell” would be affected by increased rainfall events and that despite the project being “essentially a levee extending across 240 miles of rural countryside,” the FRA failed to disclose hydrologic impacts on properties along the route. Texas Against High-Speed Rail, Inc. v. U.S. Department of Transportation, No. 6:21-cv-00365 (W.D. Tex., filed Apr. 14, 2021).
Arizona Alleged that Halting Border Wall Construction and Ending “Remain in Mexico” Program Required NEPA Review
The State of Arizona filed a lawsuit in federal court in Arizona asserting that federal defendants should have complied with the National Environmental Policy Act before they changed course on immigration policies such as the border wall and halting the “Remain in Mexico” program. The State alleged that the policy changes would result in additional migrants entering the United States and Arizona, which would have a “direct and substantial impact on the environment in Arizona,” including increases in “the release of pollutants, carbon dioxide, and other greenhouse gases into the atmosphere, which directly affects air quality.” The State contended that population grown was a reasonably foreseeable consequence of the defendants’ actions and that the actions therefore should be held unlawful for failure to comply with NEPA. Arizona v. Mayorkas, No. 2:21-cv-00617 (D. Ariz., filed Apr. 11, 2021).
Challenge to Utah Oil and Gas Leases Raised Issue of Climate Change Impacts on Cultural Resources
A conservation nonprofit organization filed a lawsuit in the federal district court for the District of Columbia alleging that federal defendants’ approval of oil and gas leases in southeastern Utah failed to comply with the National Historic Preservation Act, NEPA, the Administrative Procedure Act, and the Endangered Species Act. The organization’s NEPA allegations included that the U.S. Bureau of Land Management “utterly ignored the cumulative impacts of climate change on cultural resource degradation,” citing public comments, including by the plaintiff, that “climate change trends will impact both exposed and buried cultural resources by increasing erosion, flooding, dust deposition, wildfire, and thermal stress—all of which are known to deteriorate cultural resources.” The complaint alleged that BLM failed to acknowledge or study these impacts in either a March 2018 environmental assessment (EA) or a 2021 supplemental EA prepared in response to a July 2019 court decision finding that BLM did not adequately consider greenhouse gas impacts in its review of oil and gas leases in Wyoming. Friends of Cedar Mesa v. Department of the Interior, No. 21-cv-971 (D.D.C., filed Apr. 8, 2021).
Challenge to Portland Highway Project Contended that Environmental Impact Statement Should Have Been Prepared Due to Greenhouse Gas Impacts and Other Factors
A lawsuit filed in the federal district court for the District of Oregon asserted that the U.S. Department of Transportation and the Federal Highway Administration and its administrator violated NEPA, Section 4(f) of the Department of Transportation Act, and the Administrative Procedure Act in connection with their approval a highway project in Portland. Among other things, the plaintiffs contended that the project should have been found significant under NEPA because it would result in increased congestion and increased greenhouse gases and because its impacts on the environment were “highly uncertain” because conclusions regarding a number of impact areas, including “climate emissions,” were contingent on transportation modeling that had not been disclosed. The plaintiffs alleged that the defendants’ environmental assessment understated traffic levels as well as carbon emissions. No More Freeways v. U.S. Department of Transportation, No. 3:21-cv-00498 (D. Or., filed Apr. 2, 2021).
Lawsuit Challenged Environmental Review for Air Permit for Gas Facility Expansion in Brooklyn
Petitioners challenged the New York State Department of Environmental Conservation’s (NYSDEC’s) issuance of a negative declaration finding that an air permit application for expansion of the Greenpoint Energy Center facility in Brooklyn, a provider of gas service, would not have significant environmental impacts. The expansion project involved two new LNG vaporizers. The petition alleged that NYSDEC segmented its State Environmental Quality Review Act review by failing to examine related projects such as a gas transmission pipeline, a new LNG truck station, and LNG trucking operations. The petition’s allegations also included that the negative declaration was not consistent with the greenhouse gas emissions reduction mandates of the Climate Leadership and Community Protection Act. Sane Energy Project v. New York State Department of Environmental Conservation, No. 706273/2021 (N.Y. Sup. Ct., filed Mar. 18, 2021).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
German Constitutional Court Struck Down Parts of 2019 Climate Law as Insufficient to Protect Fundamental Rights
In February 2020, a group of German youth filed a legal challenge to Germany’s Federal Climate Protection Act (“Bundesklimaschutzgesetz” or “KSG”), arguing that the KSG’s target of reducing GHGs 55% by 2030 from 1990 levels was insufficient. The complainants alleged that the KSG therefore violated their human rights as protected by the Basic Law, Germany’s constitution.
On April 29, 2021, the Federal Constitutional Court struck down parts of the KSG as incompatible with fundamental rights for failing to set sufficient provisions for emissions cuts beyond 2030. The Court found that Article 20a of the Basic Law, which protects the natural foundations of life and responsibility toward future generations, obliges the legislature to protect the climate and aim towards achieving climate neutrality. Further, the Court stated that Article 20a “is a justiciable legal norm that is intended to bind the political process in favour of ecological concerns, also with a view to the future generations that are particularly affected.” Accepting arguments that the legislature must follow a carbon budget approach to limit warming to well below 2°C and, if possible, to 1.5°C, the Court found that that legislature had not proportionally distributed the budget between current and future generations, writing “one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden … and expose their lives to serious losses of freedom.” The Court ordered the legislature to set clear provisions for reduction targets from 2031 onward by the end of 2022. According to news reports, the German government announced on April 30, 2021 that it would move quickly to adjust its climate law in response to the decision. Neubauer, et al. v. Germany (German Constitutional Court).
Supreme Court of Pakistan Upheld Decision Barring the Construction of Cement Plants in Environmentally Fragile Zones
On April 15, 2021, the Supreme Court of Pakistan upheld a Notification by the Provincial government of Punjab barring the construction of new cement plants or the expansion of existing cement plants in environmentally fragile zones called “Negative Areas.” A cement company owner challenged the Notification on the grounds that it violated their constitutional right to freedom of trade, business, and profession under Article 18 of the Constitution, and that the government acted in undue haste by issuing the regulation without full consideration of scientific impacts. The Supreme Court rejected the challenges and upheld as proper the government’s consideration, based on a consultant report, that new or expanded cement plants could cause further depletion of groundwater and other harmful environmental impacts. As part of its consideration, the Court emphasized the need for consideration of climate change in government decisions and the impact of climate change on water resources. The Court wrote, “[o]nly by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country …. The Notification, in the current facts of the case, is a climate resilient measure and in step with the National Climate Change Policy and the Constitution.”
Further, the Court emphasized the need to consider intergenerational justice in climate cases like this one: “This Court and the Courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come. Through our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times.” D. G. Khan Cement Company v. Government of Punjab (Supreme Court of Pakistan).
French Court Partially Invalidated Total’s Permit to Operate a Biorefinery in France
The Administrative Court of Marseille partially invalidated Total’s permit to operate a biorefinery in France and directed the company to study the climate impacts of imported palm oil in a decision on April 1, 2021. NGO plaintiffs alleged that the Prefect of Bouches-du-Rhône, in authorizing the continued operation of the refinery, failed to take into account the climate and other environmental impacts of palm oil production and use. The Court agreed that the decision authorizing the operation of the plant relied on insufficient information on climate impacts, and ordered a new study on the cumulative direct and indirect climate effects of the biorefinery project. Friends of the Earth et al. v. Prefect of Bouches-du-Rhône and Total (Administrative Court of Marseille).
MS Patient Sued Austrian Government for Human Rights Violations of Its Climate Inaction
On March 25, 2021, an Austrian citizen with a temperature-dependent form of multiple sclerosis (MS) filed a case against the Austrian government for violations of his human rights for failing to more quickly and effectively combat climate change. In the filing, the petitioner alleges facts, including that the majority of MS patients suffer from Uhthoff’s syndrome, which is a temperature-dependent sensitivity. The sensitivity causes patients like the petitioner to lose more muscular control as temperatures go up. The petitioner alleges that through inaction on the climate crisis, the Austrian government has violated his constitutional right to family and private life under Article 8 of the European Convention on Human Rights. Mex M. v. Austria (European Court of Human Rights).
Brazilian Youth Filed Suit Alleging Government Used Accounting Trick in Its NDC to Pollute More
On April 13, 2021, six young climate activists filed suit alleging that the government of Brazil, by using a carbon trick maneuver in its updated Nationally Determined Contribution (NDC) to the Paris Agreement, violated obligations under the Paris Agreement and Brazilian law. Brazil submitted an updated NDC in 2020 that maintains a 43% emissions cut by 2030 goal, but raises Brazil’s estimated baseline emissions from 2005. In effect, plaintiffs allege, this would allow Brazil to emit 400 million more tonnes by 2030. Plaintiffs allege that this accounting maneuver violates the Paris Agreement obligation to increase ambition in updated NDCs, violates Brazil’s obligation to safeguard the right to an ecologically balanced environment under Article 225 of the constitution, and violates Brazil’s National Policy on Climate Change. Six Youths v. Minister of Environment and Others (14th Federal Civil Court of Sao Paulo).
ClientEarth Sued Belgian National Bank for Financing Fossil Fuels in Violation of EU and Human Rights Law
ClientEarth filed suit against the Belgian National Bank on April 13, 2021 for failing to meet environmental, climate, and human rights requirements when purchasing bonds from fossil fuel and other greenhouse-gas intensive companies. The Belgian National Bank has participated in the European Central Bank’s Corporate Sector Purchase Program (CSPP), in which six national central banks purchase bonds from eligible companies to improve financing conditions by lowering debt costs. ClientEarth alleges that over half of bonds purchased under the CSPP were issued by greenhouse-gas intensive sectors, and that the program therefore exacerbates the climate crisis. ClientEarth alleges that the Belgian National Bank’s participation in the CSPP, by not taking into account climate, environment, and human rights impacts, violated Article 11 of the Treaty on the Functioning of the EU and Article 37 of the EU Charter of Fundamental Rights (both of which concern the obligation to integrate environmental protection into EU policies). As part of its case, ClientEarth seeks a preliminary reference to the European Court of Justice to determine whether the decision to establish the CSPP was lawful. ClientEarth v. Belgian National Bank (Brussels Court of First Instance).
Czech Citizens Sued Government for Climate Inaction and Human Rights Harms
On April 21, 2021, a group of Czech citizens filed suit against the government of the Czech Republic for its inaction on climate change and the human rights harms this inaction is causing. Plaintiffs include climate action NGO Klimatická žaloba ČR, a municipality (Svatý Jan pod Skalou), and four individuals, and defendants named are the Ministry of the Environment, the Ministry of Industry and Trade, the Ministry of Agriculture, the Ministry of Transport, and the Government of the Czech Republic. Plaintiffs allege that the government, by failing to adequately address climate change, is violating Czech citizens’ rights to life, health, environment, and others that are guaranteed by the Czech constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights. Plaintiffs plan to present evidence that the country has a limited carbon budget in order to meet its constitutional and Paris Agreement obligations, and that the government’s Climate Protection Policy allows for emissions 2.5 times higher than the carbon budget allows. Plaintiffs seek a court order for the government to take necessary measures to maintain a carbon budget of 800 Mt CO2 from January 2021 until the end of the century, and to take necessary measures to adapt to climate change. Klimatická žaloba ČR v. Czech Republic (Prague Municipal Court).
Plan B Earth Sued UK Government for Human Rights Harms Stemming from Failure to Meet Paris Agreement Commitments
Plan B Earth and three young people filed a petition for judicial review on May 1, 2021 alleging that the UK government violated human rights by failing to implement effective measures to uphold its Paris Agreement commitments. Plaintiffs allege that while the UK government has pledged itself to net zero emissions by 2050, it has undercut this commitment by supporting coal and aviation, granting oil and gas leases, investing more than 25 billion pounds in roads, and financing fossil fuel projects overseas. According to the petition, these policies expose plaintiffs to gross violations of their rights to life, private and family life, and protection from discrimination guaranteed by Articles 2, 8, and 14 of the European Convention on Human Rights, as implemented into UK law by the Human Rights Act 1998. Plaintiffs seek a court order that the UK government must urgently implement a legislative and administrative framework sufficient to uphold its Paris Agreement commitments. Plan B Earth and Others v. Prime Minister (High Court of Justice, Queen’s Bench Division).
