Climate Law Blog

By Romany Webb and Lauren Kurtz

As of August 14, the federal government has attempted to censor, misrepresent, and otherwise stifle science over 150 times. We know this because, in January, the Sabin Center and Climate Science Legal Defense Fund launched the Silencing Science Tracker (SST). As its name suggests, the SST records federal government action to “silence science,” for example by restricting scientific research or the publication of scientific information, since the November 2016 election. When the SST was launched, we had 96 entries, meaning that there had been almost two attempts to silence science each week during the fourteen months after President Trump was elected. Since then, the Trump administration’s attacks on science have accelerated, with the SST now containing 155 entries.

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By Jose F. Pinto-Bazurco*

Last month the United Nations Security Council (UNSC) met to discuss the implications that climate change has on peace and security, marking the third time the Council convened to formally discuss this issue. (Similar discussions took place in 2007 and 2011.) I was fortunate to attend last month’s session.

As a general matter, members of the Security Council agree that climate change presents significant threats to global peace and security – in particular relating to impacts associated with sea-level rise, drought, food and water security. The July meeting featured several invited speakers who highlighted the security threats climate change poses to people in the developing world, in particular in the Lake Chad Basin, West Africa, the Sahel and the Horn of Africa. (Interestingly enough, the U.S. representative, consistent with the Trump administration’s current policy stance, mentioned the consequences of climate change but did not recognize the concept of climate change itself.) However, though they agree on the threat the nations can’t seem to agree whether the topic of climate change lies within the competencies of the Security Council. Read more »

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 # 112.

FEATURED CASE

Supreme Court, Ninth Circuit Declined Federal Government’s Requests to Halt Kids’ Climate Lawsuit

On July 30, 2018, the U.S. Supreme Court denied the federal government’s application for a stay of the young people’s climate change lawsuit pending in the federal district court for the District of Oregon, which is scheduled for trial beginning on October 29, 2018. The federal government filed its stay application after the Ninth Circuit Court of Appeals denied the government’s emergency motion for a stay pending consideration of a second petition for a writ of mandamus filed by the government on July 5, 2018. The federal government asked the Supreme Court for a stay pending the Ninth Circuit’s consideration of the mandamus petition and any further proceedings in the Supreme Court, and also requested an administrative stay pending the Court’s ruling on the stay application. Alternatively, the federal government suggested that the Supreme Court could construe its application as a petition for writ of mandamus or petition for writ of certiorari from the Ninth Circuit’s March 2018 decision denying mandamus and directly order dismissal of the action or a stay pending the resolution of the federal government’s pending dispositive motions. After the Ninth Circuit denied the government’s second mandamus petition on July 20, the federal government indicated in a letter to the Supreme Court that this alternative course of action was “even more warranted” because “nothing relevant remains to be done in the lower courts.”

The Supreme Court’s order denying the stay application said the request for relief was premature and denied the request without prejudice. The Court also noted that “[t]he breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion.” The Court said the district court “should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.” After the Supreme Court denied the stay, the government filed a notice with the district court suggesting that the Court’s order had two implications for the case. First, the government said the Court’s order was relevant to its requests that the district court certify for interlocutory appeal any denial of its dispositive motions because the Court’s order indicated that the “substantial grounds for difference of opinion” factor for interlocutory appeal was met. Second, the government said the district court should make the “prompt ruling” on the dispositive motions to which the Supreme Court referred. United States v. U.S. District Court for the District of Oregon, No. 18A65 (U.S. July 30, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. notice filed Aug. 1, 2018).

In its opinion denying the second petition for writ of mandamus without prejudice, the Ninth Circuit found that no new circumstances justified the second petition. The Ninth Circuit said the government had not satisfied the five factors for mandamus at this stage of the proceedings, and stated: “It remains the case that the issues that the government raises in its petition are better addressed through the ordinary course of litigation.” The Ninth Circuit rejected, among other arguments, the government’s contention that it would be prejudiced in a way not correctable on appeal because agency officials would have to answer questions on the topic of climate change. The Ninth Circuit characterized the government as arguing that answering such questions could constitute “agency decisionmaking,” which would require adherence to the requirements of the Administrative Procedure Act (APA). The Ninth Circuit said the government “cites no authority for the proposition that agency officials’ routine responses to discovery requests in civil litigation can constitute agency decisionmaking that would be subject to the APA.” The Ninth Circuit also again rejected the argument that proceeding with discovery and trial would violate separation of powers. The Ninth Circuit indicated that the federal government could challenge “any specific discovery order that it believes would be unduly burdensome or would threaten the separation of powers” but that “[p]reemptively seeking a broad protective order barring all discovery does not exhaust the government’s avenues of relief.” United States v. U.S. District Court for the District of Oregon, No. 18-71928 (9th Cir. emergency stay denied July 16, 2018; mandamus denied July 20, 2018).

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By Romany Webb

On Thursday, August 2, the U.S. Environmental Protection Agency (EPA) and Department of Transportation (DOT) jointly issued the Safer Affordable Fuel-Efficient Vehicle Rule (SAFE Vehicle Rule). The SAFE Vehicle Rule proposes changes to EPA’s greenhouse gas emissions standards and DOT’s Corporate Average Fuel Economy (CAFE) standards for light duty vehicles in model years (MY) 2021 through 2025. In short, whereas both EPA and DOT had previously adopted standards that would become more stringent over time, they are now proposing to freeze their standards after MY2020. (Other proposals have also been put forward, but this is the agencies’ preferred approach).

The SAFE Vehicle Rule has, unsurprisingly, generated a lot of controversy. To inform the ongoing debate about the rule, this blog discusses five key points relating to its operation and likely effect.

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By Romany Webb

The U.S. is currently in the midst of a natural gas boom, with production growing dramatically in recent years. The resulting glut of natural gas has led to a decline in prices which has, in turn, prompted increased gas use in electricity generation and other applications. Many see this as a positive development because the combustion of natural gas results in fewer climate-damaging greenhouse gas emissions than coal and oil (per unit of energy produced). Others, however, have expressed concern about emission during natural gas production. Recent studies indicate that natural gas production emits significant methane, which is a highly potent greenhouse gas, with approximately eighty-four times the climate impacts of carbon dioxide (on a pound-for-pound basis, over a twenty-year time horizon). Achieving long-term climate change goals may, therefore, require the phasing out of natural gas use.

A new Sabin Center working paper, published online today, explores how technology can be used to promote more efficient natural gas use. The focus is on advanced metering infrastructure (AMI), consisting of state-of-the-art gas meters capable of recording natural gas use hourly or daily, and transmitting the data to customers in real-time via a wireless network. This is likely to encourage customers to conserve natural gas, with research suggesting that residential and commercial gas use could decline by up to four percent, leading to a reduction in greenhouse gas emissions. Further emissions reductions may also occur due to improved management of the natural gas pipeline system. For example, the wireless communication networks deployed with AMI can be used to collect data from methane and other pipeline sensors, enabling natural gas leaks to be detected and repaired more quickly.

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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 # 111.

FEATURED CASE

California Federal Court Dismissed Oakland and San Francisco’s Climate Change Nuisance Lawsuits

On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court—which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law—rejected the cities’ attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in American Electric Power Co. v. Connecticut (AEP)) and Ninth Circuit (in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina)). The district court held that AEP and Kivalina’s displacement rule would apply to the cities’ claims even though the claims were based not on the defendants’ own greenhouse gas emissions but on their  sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori they cannot be sued for someone else’s.” The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in AEPand Kivalina—that the defendants’ actions and the resulting emissions occurred outside the U.S.—placed the cities’ claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs’ claims, such nuisance claims were “foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The court stated: “This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”  In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

The district court issued its order dismissing the cases after three of the defendants and the plaintiffs reached agreements to avoid the jurisdictional discovery ordered by the court in May. After dismissing the cases, the court issued a request that the parties submit a joint statement regarding whether it was still necessary to address the recently narrowed personal jurisdiction motions to dismiss. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. June 25, 2018).

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by Jessica Wentz

On October 9, 2017, the Tubbs Fire ripped through Sonoma County, California, destroying nearly 5,000 homes and killing 22 people. It was the most destructive wildfire in California’s history and the largest urban conflagration in the United States since the 1906 San Francisco earthquake fires. And it was only one of approximately 250 wildfires that sparked that same night in Northern California, causing a total of 44 fatalities and more than $9.4 billion in economic damages.

Now, nine months later, the process of reconstruction has begun. Some of the first homes have gone up on burned lots. Many of these lots are located in the “wildland-urban interface” – rural, forested areas on the outskirts of cities that are much more prone to wildfires. Commenters have questioned the prudency of rebuilding in these areas in light of existing fire hazard and predictions of how the warming climate will fuel more frequent and severe wildfires in the western United States.  But there are social and economic factors which are driving reconstruction despite the risk – specifically, the emotional attachment of many property owners to the place they call “home” and the fact that property values in the areas remain extremely high (with some lots listed at over $1,000,000).

     Construction begins on a house in Coffee Park (credit: Chad Surmick / Press Democrat)

The availability of insurance is a critical factor for rebuilding. But many areas prone to wildfire are becoming too risky to insure. As noted in a 2017 report from the California Department of Insurance, premiums and wildfire surcharges have increased significantly in the wildland-urban interface, and several major insurers have stopped writing new policies and renewing plans in areas with high wildfire risk. As insurers begin to account for climate change in their wildfire risk models, they will likely become even less willing to issue and renew policies in these areas.

At this time, insurance is still available to property owners who are rebuilding their homes in the aftermath of the fires. This may be due, in large part, to a California law which prohibits insurance companies from cancelling a policy while a primary residence is being reconstructed after a covered disaster, and requires them to renew the policy at least once following a total loss caused by a disaster (Cal. INS § 675.1). The law provides short-term protection for property owners affected by the fires, but it does not guarantee that insurance will be available in the long run. Most homeowners’ insurance policies are written for a term of only 12 months, and there are no laws in California which prohibit an insurer from refusing to renew a homeowner’s policy (apart from the one exception noted above). The bottom line is that thousands of homes may be reconstructed due to the short-term availability of insurance, only to become uninsurable in the near future.

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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 at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 110.

FEATURED CASE

Magistrate Denied Federal Government’s Motion to Stay Discovery in Young People’s Constitutional Climate Case; Government Defendants Filed Objections to Denial and Sought Judgment on Pleadings and Summary Judgment

On May 25, 2018, a magistrate judge in the federal district court for the District of Oregon denied the defendants’ motion for a protective order precluding discovery in the lawsuit against the United States, the president, and other federal defendants in which young plaintiffs assert constitutional claims based on climate change impacts. The defendants had moved for a protective order and to put a hold on discovery on the grounds that the lawsuit must necessarily proceed under the Administrative Procedure Act (APA) and therefore must be heard on the administrative record. The defendants also argued that separation of powers made discovery inappropriate. In addition, the defendants asked that the lawsuit be stayed while their motions for judgment on the pleadings and summary judgment were pending.

In the order denying the protective order, the magistrate judge said the plaintiffs’ complaint did not contain an APA claim and that the defendants “have no ability to edit the complaint to cobble the claim into one [of] their choosing to derail discovery.” The magistrate judge also characterized the motion as a recasting of the defendants’ unsuccessful motion to dismiss. The magistrate judge indicated that he was “not at all persuaded” that the plaintiffs were limited to bringing an APA-based claim and noted that the district court had already rejected this argument when it denied the motion to dismiss. The magistrate judge also rejected the argument that separation of powers barred all discovery, saying that to broadly preclude discovery on such grounds would allow the government to avoid discovery “simply by asserting hypothetical discovery requests that a litigant might make during the litigation.” The magistrate judge indicated that the defendants could, however, seek a protective order should specific discovery requests arise that implicate claims of privilege.

On June 1, the defendants filed objections asking for the district court’s “immediate intervention.” The defendants said the magistrate judge had failed to “substantively engag[e]” with any of their arguments and that his order was contrary to law and clearly erroneous. The defendants also asked the magistrate judge for a stay pending the resolution of their objections. On June 4, the defendants filed another motion for a protective order, this one targeting deposition notices served on the Departments of the Interior, Agriculture, and Transportation as well as requests for admissions. The defendants also asked that a protective order at least be granted while their objections to the denial of the earlier motion for a protective order of all discovery were pending.

In their motion for judgment on the pleadings, filed on May 9, the defendants argued that the court lacked jurisdiction over claims against the president because separation of powers principles bar federal courts from ordering injunctive relief against the president for official acts. The defendants also asserted that the plaintiffs’ first amended complaint otherwise failed to state valid claims or stated claims that were barred by separation of powers principles. In particular, the defendants argued that the APA provided the “sole mechanism” for the plaintiffs to make their claims, and that all but one of the plaintiffs’ claims made no effort to challenge “circumscribed, discrete” final agency action as required by the APA. The defendants also reasserted the arguments for dismissal from their November 2015 motion to dismiss, including lack of standing and failure to state a claim. The plaintiffs were allowed until June 15 to respond to the motion, with the defendants’ reply due on June 29. Oral argument is scheduled for July 18. (The plaintiffs urged the court to defer resolution of this motion until trial, and had even asked that briefing on the motion be deferred. They argued that the motion was another dilatory tactic on the part of the defendants and said they had already devoted substantial time to informal discovery and had served 17 expert reports and requests for admissions. They also contended that further delay would significantly prejudice them, given the “urgency of the climate emergency.” The defendants responded that deferring resolution of the threshold issues raised by their motion would severely prejudice them and potentially waste “vast amounts” of judicial and litigation resources.)

In their motion for summary judgment, filed on May 22, the defendants indicated that they were following the direction of the Ninth Circuit. The defendants argued that the Ninth Circuit, in denying their request for mandamus, had “observed that Plaintiffs’ claims in this case may be too ‘broad to be legally sustainable,’ and that ‘some of the remedies the plaintiffs seek may not be available as redress.’” The defendants also noted that the Ninth Circuit had said the defendants could reassert challenges to standing, seek summary judgment, and ask for interlocutory appeal. The defendants’ May 22 motion therefore sought summary judgment on “three threshold grounds”: plaintiffs’ lack of Article III standing; plaintiffs’ failure to comply with the requirements of the APA or identify another valid cause of action; and the absence of authority for the court to grant the relief sought by the plaintiffs. With respect to standing, the defendants argued that even if the plaintiffs’ standing allegations were sufficient under a motion-to-dismiss standard, the plaintiffs subsequently had failed to set forth specific facts supporting the existence of a concrete and particularized injury that was traceable to the defendants’ actions and redressable by the court. The defendants also argued that they were entitled to summary judgment because the plaintiffs’ due process and public trust claims failed as a matter of law. In addition, the defendants requested that any denial of the motion be certified for interlocutory appeal.

On May 24, the defendants filed notice of their application to the U.S. Supreme Court for an extension of the time in which they may file a petition for writ of certiorari seeking review of the Ninth Circuit’s denial of their petition for writ of mandamus. The defendants sought an extension of 30 days, to July 5, to allow the solicitor general to continue to consult with federal agencies to determine what course of action to take. Justice Kennedy granted the application on May 29. Juliana v. United States, No. 6:15-cv-01517 (D. Or.).
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By Michael Burger

Climate change nuisance litigation is entering a new and dynamic phase. Tomorrow, Thursday, May 24, Judge William H. Alsup in the federal district court in San Francisco will hear oral argument on motions to dismiss filed in City of Oakland v. BP P.L.C., a consolidated case in which Oakland and San Francisco claim that five fossil fuel companies’ production and promotion of fossil fuels constitutes a public nuisance under federal and California common law. Three weeks later, on June 13, Judge John F. Keenan of the Southern District of New York will hear oral argument on the motions to dismiss filed in City of New York v. BP P.L.C., a case in which New York City alleges these same companies’ same activities constitute a public nuisance and trespass under New York State law. The decisions on these motions could influence pending and future litigation in the same vein – lawsuits seeking damages, compensation or abatement funds to alleviate the costs borne by local governments to adapt to climate change impacts.

At the moment, it’s pretty messy out there. There are eight other climate change tort cases pending: six alleging nuisance and a variety of other state common law violations in California courts, one claiming state public nuisance along with other state common law and statutory violations in Colorado, and one claiming state public nuisance and trespass in Washington. One set of California cases – filed by San Mateo County, Marin County and Imperial City – was removed by defendants to federal court, then remanded to state court, based on Judge Vince C. Chhabria’s conclusion that federal common law has been displaced and that state law should govern the cases – a conclusion opposite to that previously reached by Judge Alsup in a decision preserving the removal of the Oakland/San Francisco case. Judge Chhabria then certified his decision for interlocutory appeal to the Ninth Circuit, and in March defendants filed their petition. Late yesterday, May 22, the Ninth Circuit panel denied the petition for interlocutory appeal. A separate appeal, challenging Judge Chhabria’s decision that the federal officer statute does not require removal, is pending, with briefing scheduled to take place over the summer. Meanwhile, a second set of cases – filed by Santa Cruz County, the City of Santa Cruz, and the City of Richmond – have also been removed to federal court and assigned to Judge Chhabria. A motion for remand has been briefed. The cases filed by the City and County of Boulder, Colorado, and by King County, Washington are still young, and defendants have not yet responded to the complaints. Read more »

By Dena Adler

Meeting in the Chamber Hall at the World Conference Center Bonn.

Thousands of country delegates, NGO representatives, citizens, researchers, and members of the private sector converged in Bonn, Germany for two weeks of meetings to advance global climate change negotiations, ending on May 10. While the annual international climate summit, called the Conference of the Parties or “COP,” attracts greater media attention, “intersessionals” like the recent Bonn meetings, along with remote work throughout the year, are when parties do the real work to hash out the details of COP decisions.

The recent Bonn negotiations sought to advance progress on a “Paris Rulebook” which will set out guidelines for how countries should implement their pledges for climate action—known as “nationally determined contributions” (NDCs)—under the Paris Agreement. When the Paris Agreement was negotiated, countries largely expected it would enter force no earlier than 2020, leaving them several years to lay out the rules of the road for implementation. However, the Paris Agreement entered into force unexpectedly quickly in November 2016. This has in turn pressured parties to speed up production of implementation guidelines for their climate action pledges.  Parties have now set a deadline to produce the Paris Rulebook by the upcoming COP 24, to be held in December 2018 in Katowice, Poland. Read more »