New updates from October to the Center for Climate Change Law and Arnold & Porter Climate Case Chart. Find the complete chart here.
FEATURED DECISION
Native Village of Kivalina v. ExxonMobil Corp. (9th Cir. Sept. 21, 2012): added to the “common law claims” slide. The Ninth Circuit affirmed the dismissal of a lawsuit by Inupiat Native Alaskans seeking to recover money damages from a number of energy companies for GHG emissions from the companies’ products that plaintiffs alleged eroded sea ice where the village is located. The appeals court held that plaintiffs could not sue under a theory of public nuisance given that it had been displaced by the Clean Air Act. The district court had dismissed the case for lack of subject matter jurisdiction, holding that the question of how best to address climate change is a political question not appropriate for a federal trial court to decide. The court also held that the plaintiffs could not demonstrate that the companies had caused them injury. The lawsuit alleged that as a result of climate change, the Arctic sea ice that protects the Kivalina coast from storms has been diminished and that resulting erosion will require relocation of the residents at a cost of between $95 and $400 million.
DECISIONS AND SETTLEMENTS
Aranow v. State of Minnesota (Minn. Ct. of Appeals Oct. 1, 2012): added to the “common law claims” under the “public trust doctrine” subsection. Our Children’s Trust, an environmental group, filed dozens of lawsuits in federal court and several states asserting that the federal government and state governments have an obligation under the public trust doctrine to regulate GHG emissions. In Minnesota, the group filed a lawsuit against the governor and the Minnesota Pollution Control Agency, which moved to dismiss. A state trial court granted the motion, holding first that the governor was not a proper party because he had no legislative authority to implement the policies sought by the plaintiff. Turning to the merits, the court held that that the public trust doctrine only applies to navigable waters, not the atmosphere. In addition, the court held that the plaintiff had no viable claim under the Minnesota Environmental Rights Act given that he had not given the requisite notice and had not sued on behalf of the state, as the statute required. On appeal, a state appellate court affirmed the decision, agreeing with the lower court that the doctrine only applied to navigable waters and did not apply to the atmosphere.
American Tradition Institute v. Rector and Visitors of the University of Virginia (Va. Cir. Ct. Sept. 17, 2012): added to the “climate change protestors and scientists” slide. A conservative legal foundation filed a lawsuit under the Virginia Freedom of Information Act seeking documents related to the work of former professor Michael Mann, who was involved in the so-called “climategate” email controversy. In a decision from the bench, the court held that the email correspondence was exempt from disclosure under the Virginia Freedom of Information Act. In particular, the court held that although the emails qualified as public records, they were exempt from disclosure under an exclusion concerning information produced by facility or staff of public institutions of higher education as a result of study or research on medical, scientific, technical or scholarly issues where such data has not been publicly released.
United States v. DeChristopher (10th Cir. Sept. 14, 2012): added to the “climate change protestors and scientists” slide. An individual was indicted for submitting several bids for oil and gas drilling leases on federal land that he did not intend to pay for. He argued that he did so to prevent the leases from being used in a way that would worsen the effects of climate change. After determining that the individual was not allowed to present the “necessity defense” in explaining his actions, the court sentenced him to 24 months in prison and three years of supervised release. On appeal, the 10th Circuit upheld the conviction, holding that the evidence was sufficient to sustain the conviction and that the district court did not err in disallowing the individual from presenting the necessity defense, holding that the first prong, that there was no legal alternative to violating the law, was not present given that the individual could have taken other steps, such as filing a lawsuit to stop the issuance of the leases.
NEW CASES, MOTIONS AND NOTICES
American Petroleum Institute v. EPA (D.C. Cir. Sept. 18, 2012): added to the “challenges to federal action” slide. A coalition of industry groups filed a lawsuit challenging EPA’s 2012 cellulosic ethanol requirements set under the renewable fuel program. The petitioners allege that the agency’s projections for cellulosic biofuels are unrealistic, as they require refiners to blend 8.65 million gallons of such fuel into the national gasoline supply this year even though only a little over 20,000 gallons have thus far been produced. Refiners will be required to pay penalties for not purchasing the biofuel even if it is not commercially viable.
Luminant Generation Co. LLC v. EPA (5th Cir., filed Sept. 11, 2012): added to the “challenges to coal-fired power plants” slide. The owner of two power plants in Texas filed a petition with the Fifth Circuit seeking a review of an EPA finding that the power plants violated Texas’s clean air plan. EPA’s review alleged that the company modified the two plants without obtaining appropriate permits under the Texas Title V permit process. EPA also alleged that the company failed to use best available control technology at the plants and that its actions resulted in significant emissions of sulfur dioxide and nitrogen oxides at the two facilities.
American Petroleum Institute v. EPA (D.C. Cir. Sept. 10, 2012): added to the “challenges to federal action” slide. A coalition of industry groups filed a lawsuit challenging an EPA rule that maintains the existing GHG emissions permitting thresholds concerning the agency’s tailoring rule, which limits GHG permitting to the largest industrial sources. On July 12, EPA issued the third step of the tailoring rule, retaining the existing permitting thresholds of Title V and prevention of significant deterioration emissions permits. New facilities that emit 100,000 tons per year of carbon-dioxide equivalent and existing facilities that increase their emissions by 75,000 tons per year of carbon-dioxide equivalent will be required to obtain prevention of significant deterioration and Clean Air Act Title V operating permits. According to EPA, it is retaining those existing permitting thresholds because state permitting authorities need more time to develop the infrastructure necessary to issue GHG permits.
