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 # 146.
FEATURED CASE
In Baltimore’s Climate Case Against Fossil Fuel Companies, Supreme Court Held that Appellate Review of Remand Order Extends to All Grounds for Removal
In a 7-1 decision, the U.S. Supreme Court held that the Fourth Circuit Court of Appeals erred when it concluded that its review of the remand order in Baltimore’s climate change case against fossil fuel companies was limited to determining whether the defendants properly removed the case under the federal officer removal statute. The Court declined to review the companies’ other grounds for removal, finding that the “wiser course” was to allow the Fourth Circuit to address them in the first instance. The Court’s decision concerned the interpretation of 28 U.S.C. § 1447(d), which provides that “an order remanding a case to the State court from which it was removed pursuant to section 1442 [the federal officer removal statute] or 1443 [removal statute for civil rights cases] of this title shall be reviewable by appeal.” The Court concluded that the ordinary meaning of “order” in Section 1447(d) would include “the whole of a district court’s ‘order,’ not just some of its parts or pieces.” The Court was not persuaded by arguments that exceptions to the general bar on appellate review of remand orders should be construed narrowly or that Congress would have expressly directed that appellate courts should review all aspects of remand orders had that been its intention. In addition, the Court cited its decision in Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U. S. 199 (1996)—which concerned the scope of appellate review of orders certified for appeal by district courts—as its “most analogous precedent.” The Court found that Yamaha resolved any doubts about Section 1447(d)’s interpretation with its holding that appellate courts could address any questions contained in a district court order certified for appeal. The Court said other precedents cited by Baltimore “were driven by concerns unique to their statutory contexts.” Nor was the Court persuaded by the argument that Congress ratified lower appellate court interpretations limiting the scope of review for remand orders cases removed under Section 1443 when it enacted the exception for the federal officer removal statute. The Court stated that “[i]t seems most unlikely to us that a smattering of lower court opinions could ever represent the sort of ‘judicial consensus so broad and unquestioned that we must presume Congress knew of and endorsed it.’” Responding to policy concerns regarding efficiency raised by Baltimore, the Court first noted that policy arguments could not prevail over “a clear statutory directive” and found, moreover, that Section 1447(d) “tempers its obvious concern with efficiency” by providing for the exceptions to the bar on appellate review in the first place. The Court also suggested that a “fuller form of appellate review” could serve the cause of efficiency. In response to the concern that its interpretation would “invite gamesmanship,” the Court again said policy concerns could not override plain meaning and also noted that in any event Congress had addressed this policy concern by allowing courts to sanction frivolous arguments. Justice Sotomayor dissented, writing that she believed the Court’s interpretation would allow defendants to “sidestep” the general bar on appellate review by “shoehorning” a civil rights or federal officer removal argument into their case for removal. She also was persuaded that Congress had ratified the lower appellate court decisions holding that there was a narrower scope of review. Justice Alito did not take part in the case. On May 28, the Maryland state court hearing Baltimore’s case stayed the proceedings pending the Fourth Circuit’ review of the defendants’ other grounds for appeal. BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. May 17, 2021).
In three other cases brought by local and state governments against fossil fuel companies, the Supreme Court granted petitions for writ of certiorari seeking review of decisions affirming remand orders. The Court vacated the judgments in the three cases and remanded them for further consideration in light of its decision in BP p.l.c. v. Mayor & City Council of Baltimore. Justice Alito did not take part in the consideration of these cases. Chevron Corp. v. County of San Mateo, No. 20-884 (U.S. May 24, 2021); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 20-783 (U.S. May 24, 2021); Shell Oil Products Co., L.L.C. v. Rhode Island, No. 20-900 (U.S. May 24, 2021).
Connecticut Federal Court Granted State’s Motion to Remand Unfair Trade Practices Lawsuit Against Exxon
The federal district court for the District of Connecticut granted the State of Connecticut’s motion to remand its lawsuit against Exxon Mobil Corporation (Exxon) in which the State asserts claims under the Connecticut Unfair Trade Practices Act (CUTPA) arising from Exxon’s alleged false or misleading statements about connections between its products and climate change, as well as alleged interference with the marketplace for renewable energy and alleged “greenwashing.” Citing the well-pleaded complaint rule, the court characterized Connecticut’s claims as alleging that Exxon “lied to Connecticut consumers and that these lies affected the behavior of those consumers”; the court said that “[t]he fact that the alleged lies were about the impacts of fossil fuels on the Earth’s climate does not empower the court to rewrite the Complaint and substitute other claims” such as the common law nuisance and trespass claims asserted against fossil fuel companies in other cases. The court then concluded that none of the exceptions to the well-pleaded complaint rule applied. First, the court found that Exxon failed to show that federal common law justified removal, even if it might provide a defense. Second, the court concluded that CUTPA claims did not “necessarily raise” federal issues, as would be required for the Grable exception to the well-pleaded complaint rule. In addition, the court found that neither the federal officer removal statute, the Outer Continental Shelf Lands Act, federal enclave jurisdiction, nor diversity jurisdiction provided grounds for removal. The court denied, however, Connecticut’s motion for costs and fees, noting that several issues raised by Exxon were novel in the Second Circuit and that many relevant portions of district court rulings in other circuits had not been subject to appellate review until the Supreme Court’s recent decision in the Baltimore case. Connecticut v. Exxon Mobil Corp., No. 3:20-cv-01555 (D. Conn. June 2, 2021).
District Court Stayed Briefing of Motion to Remand in Annapolis’s Climate Case
After the Supreme Court’s decision in BP p.l.c. v. Mayor & City Council of Baltimore, the federal district court for the District of Maryland stayed proceedings in a case brought by the City of Annapolis against fossil fuel companies and a trade association. The fossil fuel companies removed the case in March 2021, citing five grounds for removal, including the federal officer removal statute. The City filed a motion to remand on April 23, 2021, and the defendants had not yet filed their response when the court stayed the proceedings. The court noted that it was undisputed that the Fourth Circuit’s determination regarding the fossil fuel companies’ remaining jurisdictional claims in the Baltimore case would have a “direct bearing” on the defendants’ arguments in this case; the district court also said the Fourth Circuit’s decision on these remaining issues “is not a foregone conclusion” since some of the jurisdictional arguments raise “novel questions of law.” Regarding prejudice to the parties, the district court wrote that “the outcome of this lawsuit cannot turn back the clock on the atmospheric and ecological processes that defendants’ activities have allegedly helped set in motion” and that “[t]he urgency of the threat of climate change writ large is distinct from plaintiff’s interest in a speedy determination of federal jurisdiction in this suit.” The court concluded that the guidance the Fourth Circuit would “surely provide” would be “worth the wait.” City of Annapolis v. BP p.l.c., No. 21-cv-772 (D. Md. May 19, 2021).
Ninth Circuit Sent Decision that Pacific Walrus No Longer Qualified as Threatened Back to Agency
The Ninth Circuit Court of Appeals found that the U.S. Fish and Wildlife Service (FWS) did not sufficiently explain why it reversed a previous determination that the Pacific walrus qualified for listing as endangered or threatened under the Endangered Species Act. The Ninth Circuit therefore reversed a district court judgment upholding the FWS’s reversal and directed the district court to remand to the FWS “to provide a sufficient explanation of its new position.” After concluding in 2011 that listing of the Pacific walrus was warranted due to threats that included sea-ice loss through 2100, the FWS issued a final decision in October 2017 that the Pacific walrus no longer qualified as a threatened species. The 2017 decision found that although there would be a reduction in sea ice, there was not “reliable information showing that the magnitude of this change could be sufficient to put the subspecies in danger of extinction now or in the foreseeable future.” The FWS also recharacterized the scope of “foreseeable future,” finding that “beyond 2060 the conclusions concerning the impacts of the effects of climate change and other stressors on the Pacific walrus population are based on speculation, rather than reliable prediction.” The Ninth Circuit said the “essential flaw” in the 2017 decision—which it characterized as a “spartan document” in contrast to the 2011 decision, which was “45 pages in length, contained specific findings, replete with citations to scientific studies and data”—was the “failure offer more than a cursory explanation of why the findings underlying its 2011 Decision no longer apply.” Although the 2017 decision incorporated a final species status assessment that contained new information, the Ninth Circuit found that the “actual decision document does not explain why this new information resulted in an about-face” on whether the Pacific walrus met statutory listing criteria. The Ninth Circuit also found that the 2017 decision did not provide an explanation for decision to recharacterize the “foreseeable future.” Center for Biological Diversity v. Haaland, No. 19-35981 (9th Cir. June 3, 2021).
Courts Dismissed Challenges to Small Refinery Exemptions from Renewable Fuel Standard Requirements After EPA Obtained Vacatur and Voluntary Remand
After the Tenth Circuit Court of Appeals vacated and remanded three small refinery exemption extensions from Renewable Fuel Standard requirements granted by the U.S. Environmental Protection Agency on January 19, 2021, Renewable Fuels Association moved to voluntarily dismiss its petitions for review challenging the exemptions in the Tenth Circuit and the D.C. Circuit. The Tenth Circuit granted the motion on May 25, 2021, and the D.C. Circuit granted the motion on May 26, 2021. The Tenth Circuit vacated and remanded the exemptions after EPA moved for vacatur and voluntary remand, conceding that it did not analyze determinative legal questions regarding the refineries’ eligibility for the extensions. Renewable Fuels Association v. EPA, No. 21-9518 (10th Cir. May 25, 2021); Renewable Fuels Association v. EPA, No. 21-1032 (D.C. Cir. May 26, 2021).
Second Circuit Declined to Stay Department of Energy Rule Creating New Product Classes for Short-Cycle for Washers and Dryers
The Second Circuit Court of Appeals denied a motion to stay a U.S. Department of Energy (DOE) rule adopted in December 2020 that created new product classes for short-cycle washers and dryers in the energy conservation program. The court found that the petitioners—who had argued that excessive consumption of energy and water by short-cycle washers and dryers sold due to the rule would constitute substantial and irreparable harm—did not make a sufficient showing of irreparable injury absent a stay. The Second Circuit also granted the petitioners’ motion to stay briefing until October 1, 2021 to allow DOE to proceed with reconsideration of the rule. DOE represented that it expected to complete reconsideration by the end of 2021. California v. U.S. Department of Energy, Nos. 21-108, 21-428, 21-564 (2d Cir. May 18, 2021).
First Circuit Declined to Bar Construction of Power Line in Maine
The First Circuit Court of Appeals affirmed the denial of a preliminary injunction to block construction of a segment of an electric transmission power corridor in Maine that would be part of a project to carry electricity from Quebec to Massachusetts, including electricity generated by hydropower. The First Circuit found that the plaintiffs did not show a likelihood of success on the merits of any of their claims under the National Environmental Policy Act (NEPA), including their claim that the U.S. Army Corps of Engineers acted arbitrarily and capriciously when it concluded that the overall project was not a “major federal action” pursuant to NEPA. Because the First Circuit rejected the plaintiffs’ arguments regarding the scope of the NEPA review, the court also concluded that the plaintiffs’ contention that the greenhouse gas reductions from the overall project were overstated did not show “controversy” that would require the Corps to prepare an environmental impact statement. Sierra Club v. U.S. Army Corps of Engineers, No. 20-2195 (1st Cir. May 13, 2021).
Montana Federal Court Declined to Stay Proceedings in Environmental Groups and States’ Challenge to Lifting of Moratorium on Federal Coal Leasing
The federal district court for the District of Montana denied federal defendants’ request for a 90-day stay in proceedings challenging the Trump administration’s lifting of the Obama administration’s moratorium on federal coal leasing. Briefing is currently underway on summary judgment motions regarding the adequacy of the U.S. Bureau of Land Management’s (BLM’s) environmental assessment (EA) and finding of no significant impact (FONSI) for the lifting of the moratorium. BLM issued the EA and FONSI in response to the court’s 2019 decision finding that the lifting of the moratorium was a “major federal action” requiring review under NEPA. In April 2021, Secretary of the Interior Deb Haaland issued Secretarial Order 3398, which revoked former Secretary Ryan Zinke’s order that lifted the moratorium. Secretary Haaland’s order directed agencies to prepare a report with a plan for reversing, amending, or updating the policies implementing the Zinke order. The court found, however, that there was a “fair possibility” that previous and ongoing implementation of the Zinke order’s policies would cause damage to the plaintiffs’ interests in air quality, water quality, wildlife habitat, cultural sites, and mitigation of climate change impacts. The court further found that the federal defendants failed to establish that they would suffer hardship if the case proceeded and that “the orderly course of justice further weighs in favor of the Court maintaining the current schedule” since it “remains doubtful that Federal Defendants can complete their agency review and related policy change within a reasonable time.” Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-00030 (D. Mont. June 3, 2021).
Montana Federal Court Said Biden Revocation of Keystone XL Permit Did Not Moot Pipeline Challenge; Parties in Separate Case Agreed to Dismissal of Challenge to Permit
In the lawsuit challenging President Trump’s 2019 issuance of a presidential permit for the U.S.-Canada border segment of the Keystone XL pipeline, the federal district court for the District of Montana concluded that President Biden’s revocation of the permit did not render the plaintiffs’ claims moot. First, the court concluded that the case presented a live controversy because the court could order removal of the pipeline segment. In addition, the court found that the exception to mootness for voluntary cessation of unlawful activity would apply because the court could prevent President Biden or a future president from unilaterally issuing another permit. The court said it would issue an order on pending summary judgment motions “in due course.” Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. May 28, 2021).
In a separate lawsuit challenging the 2019 presidential permit, the parties jointly submitted a stipulation of dismissal without prejudice. The parties—which included the plaintiffs (Rosebud Sioux Tribe and Fort Belknap Indian Community), the defendant agencies and officials, and the pipeline developers—agreed that President Biden’s revocation of the permit made the case moot. The court ordered the case dismissed on May 17, 2021. Rosebud Sioux Tribe v. Biden, No. 4:18-cv-00118 (D. Mont. May 17, 2021).
Challenge to Biological Opinion for Oil and Gas Activity in Gulf of Mexico Will Remain in Maryland Federal Court
In a lawsuit challenging the National Marine Fisheries Service’s 2020 biological opinion concerning oil and gas activities on the outer continental shelf in the Gulf of Mexico, the federal district court for the District of Maryland denied a motion to transfer venue to the Eastern District of Louisiana or the Southern District of Texas. One of the four failings alleged by the plaintiffs was failure to consider the compounding effects of climate-related population shifts on threats to endangered species posed by leasing activity. Although the court found that either proposed transferee district would be a proper venue, it concluded that the defendants failed to demonstrate that either district would provide “a more convenient or equitable stage for litigating this matter.” Sierra Club v. National Marine Fisheries Service, No. 20-cv-3060 (D. Md. May 24, 2021).
Federal Court Upheld Environmental Review for Forest Thinning Project
The federal district court for the Eastern District of California rejected challenges to the NEPA review for a forest thinning project. The court found that the U.S. Forest Service took a hard look at the project’s probable environmental consequences. Among the arguments rejected by the court were claims that the Forest Service’s consideration of the project’s greenhouse gas effects in the final environmental impact statement (EIS) was deficient. The court ruled that the plaintiffs were precluded from raising this argument because they did not raise greenhouse gas issues during the administrative process. The court also found that the plaintiffs failed to show that the Forest Service’s updated guidance for assessing greenhouse gas emissions constituted new information that affected the final EIS’s assessment of greenhouse gas emissions and therefore did not show that a supplemental EIS was required. The court also rejected claims under the National Forest Management Act, the Healthy Forest Restoration Act, and the Endangered Species Act. Conservation Congress v. U.S. Forest Service, 2:13-cv-00934 (E.D. Cal. May 17, 2021).
Wyoming Federal Court Allowed Conservation Groups and Business Coalition to Intervene in Cases Challenging Suspension of Oil and Gas Leasing
The federal district court for the District of Wyoming granted motions by conservation groups and a business coalition to intervene as respondents in the lawsuits challenging the Biden administration’s pause on new oil and gas leasing on public lands. The business coalition is made up of ski resort companies, a hunting and fishing apparel and education business, a biking outfitter, a ranch, and a farm. The court also consolidated the two lawsuits challenging the leasing suspension, one brought by the State of Wyoming and the other brought by the Western Energy Alliance. Briefing on preliminary injunction motions is scheduled to be completed on June 17, 2021. Western Energy Alliance v. Biden, Nos. 0:21-cv-00013, 0:21-cv-00056 (D. Wyo. May 12, 2021).
Louisiana Federal Court Denied Conservation Groups’ Motion to Intervene and Government’s Motion to Transfer in Challenge to Pause on Oil and Gas Leasing
On May 10, 2021, the federal district court for the Western District of Louisiana denied conservations groups’ motion to intervene in a lawsuit challenging the Biden administration’s suspension of oil and gas lease sales on public lands and offshore. With respect to intervention as of right, the court found that the conservation groups did not overcome the presumption that the government defendants’ representation of their interests would be adequate. The court said the government and the groups shared the “same ultimate objective,” which in this case was about the government’s “constitutional and statutory authority, not about climate policy.” In denying permissive intervention, the court again cited the government’s adequate representation of the groups and also said allowing the groups to intervene “could expand the case to issues not before this Court” that were not necessary to decide. The court invited the conservation groups to seek amicus curiae status. Also on May 10, the court denied the government defendants’ motion to transfer the case to the District of Wyoming pursuant to the first-to-file rule. The court concluded that although there was “some overlap” between the two cases, there was not “substantial overlap.” The court noted that the federal agencies and the statutory authority were not the same, with the Wyoming suit being a “much narrower challenge to one agency decision, while the Louisiana suit is a much broader claim against several agencies, and President Biden.” In the absence of complete overlap, the court concluded that factors such as the plaintiff states’ interests in having the suits heard in a forum that handles both the Mineral Leasing Act and the Outer Continental Shelf Lands Act, the states’ “substantial financial interest,” and the potential burden to the District of Wyoming all weighed in favor of denying the motion to transfer. The court also declined to sever and transfer the land-based portion of the lawsuit. Briefing on the plaintiffs’ motion for a preliminary injunction was completed on May 28. The conservation groups submitted an amicus brief opposing the motion; counties in Utah and Colorado submitted an amicus brief in support of the motion. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La. May 10, 2021).
Louisiana Federal Court Allowed Pipeline Protesters to Proceed with Constitutional Challenge to Critical Infrastructure Statute
In a lawsuit challenging the constitutionality of a Louisiana criminal statute that identified pipelines as critical infrastructure, the federal district court for the Western District of Louisiana ruled that organizational and landowner plaintiffs lacked standing but allowed plaintiffs who had been arrested while protesting construction of the Bayou Bridge Pipeline to proceed with their claims. Although the court found that at least some of the organizational plaintiffs had alleged injury-in-fact with allegations that included specific examples of members being charged with misdemeanors or threatened while protesting near pipelines as well as allegations of the organizations’ involvement in organizing pipeline protests, the court concluded that none of the organizations or their members had alleged causation or redressability since the alleged injuries did not pertain to protest activities under the enforcement and prosecutorial authority of the remaining two defendants. With respect to the landowner plaintiffs, who had granted permission for the arrestee plaintiffs to protest on their property, the court found that neither the landowners’ allegations regarding their concern about environmental and health impacts in communities affected by the Bayou Bridge Pipeline and about threats posed by climate change nor their allegations that the law limited their use and enjoyment of their property satisfied the injury-in-fact standard. The court also ruled that the claims against the former sheriff of St. Martin Parish were not mooted by the fact that he no longer held the office; instead, since he was sued in his official capacity, his successor should be substituted. The court also concluded that the Younger abstention doctrine did not apply because there was no ongoing state proceeding in which the arrestee plaintiffs could challenge their prosecution. White Hat v. Landry, No. 6:20-cv-00983 (W.D. La. May 5, 2021).
Hawai‘i Supreme Court Again Returned Biomass Power Purchase Agreement to Public Utilities Commission for Consideration of Greenhouse Gas Emissions
On May 24, 2021, the Hawai‘i Supreme Court vacated the Hawai‘i Public Utilities Commission’s (PUC’s) purported denial of a competitive bidding waiver to a utility. The PUC denied the waiver after the Supreme Court issued a decision in 2019 that vacated the PUC’s decision and order approving the utility’s amended power purchase agreement (PPA) for construction and operation of a biomass power facility. The Supreme Court found that the PUC failed to expressly consider greenhouse gas emissions and had denied an environmental organization due process. In its 2021 decision, the Supreme Court indicated that the PUC misread its 2019 decision as having an impact on the competitive bidding waiver issued by the PUC in 2017. The Supreme Court remanded to the PUC for a hearing on the amended PPA that included the express consideration of greenhouse gas emissions and afforded the environmental organization an opportunity to address the amended PPA’s impacts on the organization’s right to a clean and healthful environment. In re Hawai‘i Electric Light Co., No. (Haw. May 24, 2021).
Florida Appellate Court Affirmed Dismissal of Young People’s Climate Case
The Florida Court of Appeal affirmed the dismissal of a lawsuit brought by eight young people alleging that the State of Florida and state officials and agencies violated their fundamental rights to a stable climate system under Florida common law and the Florida constitution. The appellate court agreed with the court below that the lawsuit raised nonjusticiable political questions. Reynolds v. State, No. 1D20-2036 (Fla. Ct. App. May 18, 2021).
NEW CASES, MOTIONS, AND OTHER FILINGS
Supreme Court to Consider Whether to Grant Certiorari in Oakland and San Francisco Climate Cases; Fossil Companies Removed New York City and Maryland County Cases
In addition to the Supreme Court’s decision in BP p.l.c. v. Mayor & City of Baltimore on the scope of appellate review of remand orders and the other decisions discussed above, the following developments have occurred in the past month in climate change cases brought by local and state governments against fossil fuel companies:
- In Oakland and San Francisco’s case, briefing was completed on the fossil fuel companies’ petition for writ of certiorari, and briefs were distributed for the justices’ June 10, 2021 conference. In their brief opposing certiorari, the cities framed the questions presented as “[w]hether a California state law public nuisance claim alleging wrongful and deceptive promotion of hazardous consumer goods ‘arises under’ a congressionally displaced body of federal common law regarding interstate air pollution for purposes of removal jurisdiction” and “[w]hether respondents waived their right to appeal an erroneously denied remand motion by filing an amended complaint to conform to that erroneous ruling while expressly preserving their appellate rights, and then opposing petitioners’ motion to dismiss that amended complaint.” The cities argued that no existing federal common law “governs” their claims under the California representative public nuisance law, and that the Ninth Circuit’s application of the well-pleaded complaint rule did not warrant review. The cities also contended that the Ninth Circuit’s application of the Court’s precedent concerning whether post-removal amendment of complaints waived objections did not warrant review. In addition, the cities argued that the questions were not “certworthy” because they “arise in only a tiny category of cases” and because the petition was a “poor vehicle” to review the questions since there had been no final determination on the jurisdictional issue raised. Chevron Corp. v. City of Oakland, No. 20-1089 (U.S.).
- On May 24, 2021, the mandate issued for the Second Circuit’s judgment affirming dismissal of New York City’s tort law-based case against fossil fuel companies. City of New York v. Chevron Corp., No. 18-2188 (2d Cir. May 24, 2021).
- Exxon Mobil Corporation and ExxonMobil Oil Corporation removed New York City’s case under the City’s consumer protection law to federal court. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. May 28, 2021).
- The Ninth Circuit granted fossil fuel companies’ motion to extend their time for filing opening briefs in their appeals of remand orders in cases brought by the County of Maui and the City and County of Honolulu. The parties agreed that the deadline for opening briefs should be extended to July 19, 2021 because the Supreme Court’s decision in Baltimore would determine the scope of issues before the Ninth Circuit. County of Maui v. Chevron USA Inc., No. 21-15318 (9th Cir.); City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir.).
- In the State of Minnesota’s case, the Eighth Circuit also extended the fossil fuel industry appellants’ time to file their opening brief in their appeal of the district court’s remand order to take into account the Supreme Court’s decision in Baltimore. The opening brief is due June 16. Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir.).
- On May 27, the federal district court for the District of South Carolina stayed proceedings in the City of Charleston’s lawsuit against fossil fuel companies pending the Fourth Circuit’s decision on remand in the Baltimore case. Briefing on the City of Charleston’s motion to remand was completed earlier in May. As set forth in a joint stipulation filed by the parties on May 25, the court directed them to file a joint submission regarding the next steps in the case within 14 days of the Fourth Circuit’s decision on remand. City of Charleston v. Brabham Oil Co., No. 2:20-cv-03579 (D.S.C. May 27, 2021).
- On May 27, Chevron Corporation and Chevron U.S.A. Inc. removed Anne Arundel County’s case to the federal district court for the District of Maryland. On June 1, 2021, the district court so-ordered the parties’ stipulation to a stay of the proceedings pending the Fourth Circuit’s decision on remand in the Baltimore case. Anne Arundel County v. BP p.l.c., No. 1:21-cv-01323 (D. Md.).
- On May 19, 2021, the federal district court for the District of Delaware heard oral argument on Delaware’s motion to remand. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. May 19, 2021).
Parties Filed Briefs Supporting Supreme Court Review of D.C. Circuit Decision on Affordable Clean Energy Rule
In late May and early June 2021, five responses and briefs were filed in support of certiorari petitions 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 D.C. Circuit held that the Trump administration’s Affordable Clean Energy Rule (ACE Rule) rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. Three of the responses and briefs supporting certiorari were filed by parties that intervened to defend the ACE Rule in the D.C. Circuit: National Mining Association; Basin Electric Power Cooperative, a not-for-profit regional wholesale electric generation and transmission cooperative; and America’s Power, a trade association comprising companies involved in the production of electricity from coal. In addition, two amicus briefs were filed, one by the Commonwealth of Kentucky and the other by New England Legal Foundation, a nonprofit law firm with a mission of “promoting balanced economic growth in New England and the nation, protecting the free-enterprise system, and defending individual economic rights and the rights of private property.” The federal government’s response is due by July 6. West Virginia v. EPA, No. 20-1530 (U.S.).
U.S. Recommended Denial of Montana and Wyoming’s Motion to File Bill of Complaint Against Washington for Blocking Coal Exports
The Acting Solicitor General filed a brief in the Supreme Court expressing the United States’ view that the Court should deny Montana and Wyoming’s motion for leave to file a bill of complaint against the State of Washington for allegedly unconstitutional actions blocking export of coal mined in Montana and Wyoming from Washington ports. The U.S. contended that because the developer of the proposed coal export terminal at issue in the case had filed for bankruptcy and would not be building the terminal, this proceeding would not redress Montana and Wyoming’s asserted injury and there was therefore no Article III case or controversy. Montana v. Washington, No. 22O152 (U.S. May 25, 2021).
Federal Government Defended Review of Willow Project in National Petroleum Reserve
On May 26, 2021, the federal government and the oil and gas company developing the Willow Master Development Plan Project in the National Petroleum Reserve in Alaska filed briefs opposing the plaintiffs’ motions for summary judgment on claims that project approvals violated the Clean Water Act, NEPA, and the Endangered Species Act. With respect to climate change, the federal defendants argued that the U.S. Bureau of Land Management’s analysis of lifecycle greenhouse gas emissions associated with the project had adequately explained why the agency “lacked the data necessary for a reliable quantitative estimate of downstream emissions in foreign countries,” and therefore did not suffer from inadequacies identified by the Ninth Circuit it its December 2020 decision in Center for Biological Diversity v. Bernhardt. Other climate change-related arguments included that the EIS had adequately analyzed the project’s cumulative effects on fish and polar bears when combined with impacts resulting from climate change and other factors. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:20-cv-00290 (D. Alaska May 26, 2021).
Oregon Federal Court Ordered Settlement Negotiations Between Federal Government and Juliana Plaintiffs
At a telephonic status conference on May 13, 2021, the federal district court for the District of Oregon scheduled oral argument on the Juliana plaintiffs’ motion to amend their complaint for June 25 but also referred the matter to a magistrate judge for a settlement conference, which was scheduled for June 23, with settlement documents due on June 18. The district court judge stated at the status conference that the case was “in a position, given many things that have intervened in the year[s] that this case was on appeal and changes that have taken [place] legally and in the world, that it’s a moment in time that I think people should take advantage of.” She urged the parties to “take a look at what this case is about and … the best way to move it forward and how to take advantage of a couple of branches of government—maybe all three—working together to resolve disputes” and to take “this opportunity to look globally at how this case may be resolved that moves forward” to address “a crisis” and to “make progress that will best address the rights that have been acknowledged in the Ninth Circuit’s opinion.” She indicated that she would be willing to “bump” the oral argument to allow continuing negotiations. The plaintiffs’ attorneys stated that they intended to request a 60-day extension of the July 12 deadline for filing a petition for writ of certiorari in the Supreme Court and that they would keep the district court informed about that application. Juliana v. United States, No. 6:15-cv-01517 (D. Or. May 13, 2021). [Editor’s Note: Due to a technical issue, recent updates for Juliana v. United States are currently not available on the website.]
Lawsuit Challenged Master Development Plan for Oil and Gas Development in Colorado
Five environmental groups filed a lawsuit in the federal district court for the District of Colorado challenging federal defendants’ approval of the North Fork Mancos Master Development Plan (MDP), which allowed drilling of 35 horizontal gas wells in an area on the Western Slope of the Rocky Mountains. The groups alleged that “[t]here remains a fundamental disconnect between public land management for energy production, particularly in the West, … and the scientific consensus on the climate crisis and what must be done in the near future to mitigate its worst effects.” They asserted that the federal defendants failed to take a hard look at greenhouse gas emissions, including downstream indirect impacts, cumulative impacts of project emissions, and the context and intensity of emissions. The plaintiffs said the defendants should have employed the Social Cost of Greenhouse Gases or carbon budgeting to evaluate the impacts of greenhouse gas emissions. The plaintiffs also alleged a failure to take a hard look at methane waste, including by using an outdated global warming potential for methane. In addition, the plaintiffs alleged that the defendants did not consider alternatives or conditions to reduce impacts such as methane reduction technologies or best management practices. Citizens for a Healthy Community v. U.S. Department of Interior, No. 1:21-cv-01268 (D. Colo., filed May 10, 2021).
Conservation Groups Challenged Corps of Engineers’ Approvals for Midwest Transmission Line
National Wildlife Refuge Association and three other conservation groups filed a lawsuit in the federal district court for the Western District of Wisconsin challenging U.S. Army Corps of Engineers actions in connection with approvals for a 101-mile high-voltage transmission line running from Iowa to a substation in Wisconsin. The Corps used general permits rather than individual permits for the project. The conservation groups asserted claims under NEPA, the Clean Water Act, and Endangered Species Act, and the Administrative Procedure Act. Under NEPA, the plaintiffs alleged, among other things, that the final EIS for transmission line did not adequately analyze additional greenhouse gas emissions and climate impacts that would be attributable to the line’s construction and the electricity it would carry. National Wildlife Refuge Association v. U.S. Army Corps of Engineers, No. 3:21-cv-00306 (W.D. Wis. May 5, 2021).
Lawsuit Sought Protection for 10 Species Under Endangered Species Act
Center for Biological Diversity filed a lawsuit in federal district court in the District of Columbia requesting that the court order the U.S. Fish and Wildlife Service to publish proposed rules to list 10 species as endangered or threatened. The FWS previously determined that listing of each species was “warranted but precluded.” For two of the species, the plaintiff’s allegations include that climate change is one of the factors imperiling the species. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:21-cv-00884 (D.D.C., filed Apr. 1, 2021).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Hague District Court Ordered Shell to Reduce Its Emissions 45% by 2030
In April 2019, the environmental group Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations.
On May 26, 2021, the Hague District Court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019, across all activities including both its own emissions and end-use emissions. The Court wrote that it “orders [Royal Dutch Shell (RDS)], both directly and via the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels.” The Court made its decision provisionally enforceable, meaning Shell will be required to meet its reduction obligations even as the case is appealed.
The Court wrote “RDS’ reduction obligation ensues from the unwritten standard of care laid down in Book 6 Section 162 Dutch Civil Code, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful.” Plaintiffs had argued that, stemming from this standard of care, Shell had an obligation to prevent dangerous climate change through its policies, and the Court applied the standard of care to the company’s policies, emissions, consequences of its emissions, and its human rights and international and regional legal obligations. The Court concluded that the standard of care included the need for companies to take responsibility for Scope 3 emissions, especially “where these emissions form the majority of a company’s CO2 emissions, as is the case for companies that produce and sell fossil fuels.”
The Court rejected arguments by Shell that the EU Emissions Trading System (ETS) preempted further emissions cuts ordered by the court, and arguments that the reduction obligation would have no effect. The Court rejected the ETS argument on the grounds that the ETS only applies to some of the emissions in Europe Shell is responsible for, and the ETS does not cover emissions outside the EU. The standard of care, on the other hand, requires Shell to reduce all global emissions that will harm Dutch citizens. Further, the Court rejected the claim that a reduction obligation would have no effect because such emissions would be substituted by other companies. The Court wrote that it remains to be seen whether other companies will substitute Shell production in the face of Paris Agreement obligations and noted the causal relationship between production limitation and emissions reduction. The Court wrote, “The court acknowledges that RDS cannot solve this global problem on its own. However, this does not absolve RDS of its individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence.” Milieudefensie et al. v. Royal Dutch Shell plc (The Hague District Court).
Federal Court of Australia Established a New Duty of Care to Avoid Causing Personal Harm to Children from Climate Change
On September 8, 2020, eight young people filed a putative class action in Australia’s Federal Court to block a coal project. The lawsuit sought an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claimed to represent all people under 18, and argued that Federal Minister Sussan Ley has a common law duty of care for young people. They further asserted that digging up and burning coal will exacerbate climate change and harm young people in the future.
On May 27, 2021, the Federal Court of Australia established a new duty of care to avoid causing personal harm to children but declined to issue an injunction to force the Minister to block the coal mine extension. The Court concluded that “the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under s 130 and s 133 of the [Environment Protection and Biodiversity Conservation] Act, to approve or not approve the Extension Project.” In establishing the duty of care, the Court found that the foreseeable harm from the project, if the risks were to come true, would be “catastrophic,” and therefore children should be considered persons who would be so directly affected that the Minister ought to consider their interests when making the approval decision. In declining to issue an injunction, the Court found that the plaintiffs had not established that it is probable that the Minister would breach the duty of care in making the approval decision, and had not established that they will have no further opportunity to apply for an injunction. Sharma and others v. Minister for the Environment (Federal Court of Australia).
Guyanese Citizens Filed Suit Alleging that Oil Exploration Licenses Violated Constitutional Rights
Two Guyanese citizens filed suit on May 21, 2021 alleging that Guyana violated their constitutional rights by approving oil exploration licenses to an ExxonMobil-led group. Plaintiffs are Quadad de Freitas, an Indigenous youth, and Dr. Troy Thomas, a scientist and university lecturer. According to media reports, plaintiffs allege that the constitutional rights to a healthy environment, sustainable development, and the rights of future generations require the government to stop issuing licenses to activities that will exacerbate climate change. They point to evidence that the licenses could lead to billions of tonnes of CO2 emissions, which would imperil the coastal nation. Thomas & De Freitas v. Guyana (Guyana Supreme Court).
Environmental Groups in South Africa Filed Case Seeking to Set Aside Natural Gas Power Plant Approval
On April 8, 2021, two environmental groups filed a petition for review of South Africa’s Department of Forestry, Fisheries and the Environment’s authorization of the Richards Bay 3000MW gas-fired power plant. Plaintiffs are the South Durban Community Environmental Alliance (SDCEA) and groundWork. They allege that the Environmental Impact Assessment of the project included an inadequate assessment of its climate impacts, in that it failed to account for the full life-cycle emissions of natural gas. Plaintiffs allege that the greenhouse gas footprint of natural gas is worse than coal and oil on a climate-relevant 20-year timescale, and that alternatives like renewable energy were not given adequate consideration. They seek a court decision setting aside government approvals of the power plant. SDCEA & groundWork v. Minister of Forestry, Fisheries, and the Environment (South Africa High Court).
