Climate Change Litigation: November 2013 Update (Update #56 November 4, 2013)
Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-US climate litigation charts. The November 2013 additions are listed below.
Coalition for Responsible Regulation v. EPA (U.S., cert. granted Oct. 15, 2013): added to the “Challenges to Federal Action” slide. On October 15, 2013, the U.S. Supreme Court granted certiorari with respect to six petitions seeking review of Coalition for Responsible Regulation v. Environmental Protection Agency, in which the D.C. Circuit upheld the authority of the United States Environmental Protection Agency (EPA) to regulate greenhouse gases under the Clean Air Act. The Supreme Court’s grant of certiorari is limited to one question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” Certiorari was denied with respect to other questions raised in petitions challenging the D.C. Circuit’s decision, including issues relating to EPA’s endangerment finding and tailpipe emissions standards.
DECISIONS AND SETTLEMENTS . . .
Washington Environmental Council v. Bellon (9th Cir. Oct. 17, 2013): added to the “Force Government to Act/Clean Air Act” slide. The Ninth Circuit dismissed on standing grounds a citizen suit brought by two environmental groups to compel the Washington Department of Ecology and two regional clean air agencies to regulate oil refineries under the Clean Air Act. The environmental groups alleged that the agencies’ failure to define “reasonably available control technology” (RACT) greenhouse gas emissions limits violated Washington’s State Implementation Plan. The district court for the Western District of Washington in 2011 ordered the agencies to complete the RACT process for refineries. On appeal, defendant-intervenor Western States Petroleum Association argued for the first time that plaintiffs lacked Article III standing, and in a decision issued on October 17, 2013, the Ninth Circuit agreed. The Ninth Circuit held that even assuming that plaintiffs established injury in fact resulting from climate changes, they had not provided evidence sufficient to establish the causality or redressability elements of standing at the summary judgment stage. The court assumed without deciding that “that man-made sources of [greenhouse gas] emissions are causally linked to global warming and detrimental climate change” but held that plaintiffs’ “vague, conclusory statements” connecting the failure to set RACT standards to their injuries failed to satisfy their evidentiary burden. The Ninth Circuit further noted that establishing “a causal nexus” might be “a particularly challenging task” because “there is limited scientific capability in assessing, detecting, or measuring the relationship between a certain [greenhouse gas] emission source and localized climate impacts in a given region.” The court rejected plaintiffs’ argument that the causal link should be inferred because they were seeking to enforce a regulatory obligation; the court noted that plaintiffs could not benefit from the relaxed standing rule for sovereign states carved out by the Supreme Court in Massachusetts v. EPA. In concluding that plaintiffs had also failed to establishing the redressability element of standing, the Ninth Circuit pointed to the absence of evidence in the record that RACT standards would reduce the pollution causing plaintiffs’ injuries.
Latinos Unidos de Napa v. City of Napa (Cal. Ct. App. Oct. 10, 2013): added to the “State NEPAs” slide. An affordable housing advocacy organization challenged the City of Napa’s failure to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) for revisions to housing elements of the City’s general plan and related actions. The City determined that the actions would not result in any new significant environmental effects not identified and mitigated in the EIR for the 1998 general plan. The California Court of Appeal affirmed the trial court’s denial of the challenge. Citing substantial evidence in the administrative record that the actions would not have any new significant impacts, the Court of Appeal rejected petitioner’s contention that the City had failed to disclose the actions’ impacts and cumulative impacts on greenhouse gas emissions.
Safari Club International v. Jewell (U.S. cert. denied Oct. 7, 2013): added to the “Endangered Species Act” slide. On October 7, 2013, the Supreme Court denied Safari Club International’s petition for writ of certiorari in the case challenging the designation of polar bears as a threatened species under the Endangered Species Act.
Sierra Club v. Moser (Kan. Oct. 4, 2013): added to the “Challenges to Coal-Fired Power Plants” slide. The Kansas Supreme Court granted in part the Sierra Club’s petition for judicial review of the issuance of an air emissions source construction permit for an 895-megawatt coal-fired power plant in Holcomb, Kansas. The court remanded the proceeding on the ground that the Kansas Department of Health and Environment should have applied EPA regulations regarding one-hour emission limits for nitrogen dioxide and sulfur dioxide that became effective before the permit was issued.
Save the Plastic Bag Coalition v. County of Marin (Cal. review denied Oct. 2, 2013): added to the “State NEPAs” slide. On October 2, 2013, the California Supreme Court declined to review the California Court of Appeals decision upholding Marin County’s ordinance banning plastic bags. Plaintiff had alleged that increased paper bag use might increase greenhouse gas emissions.
Shurtleff v. EPA (D.D.C. Sept. 30, 2013): added to the “Climate Protesters and Scientists” slide. The Attorney General of Utah commenced a lawsuit against EPA pursuant to the Freedom of Information Act (FOIA) seeking documents concerning the “endangerment” finding that provided a basis for regulating greenhouse gases under the Clean Air Act. In September 2012, a magistrate judge recommended that the motion be granted in part, holding that the agency adequately conducted a search of relevant documents concerning the FOIA request, but that certain documents withheld pursuant to the attorney-client privilege should be disclosed. In September 2013, the district court accepted in large part the recommendations of the magistrate judge but rejected the conclusion that EPA’s search of relevant documents had been adequate for all portions of the FOIA request. The court found that EPA had not included some portions of the request in one of the three “phases” into which it had divided most of the request, and that for those undesignated portions it had not provided detail about the types of searches, search terms, methods or processes used. The court ordered EPA to perform new searches for responsive documents or to provide proof that its earlier search had met the adequacy standard. The court otherwise rejected plaintiff’s arguments that any delay in response constituted a basis for denying EPA summary judgment and that EPA should have searched files of additional employees and offices where EPA explained its basis for limiting its search. The court also denied plaintiff’s motion to supplement the record with correspondence between EPA and Congress regarding the EPA administrator’s use of “alias email accounts,” citing EPA’s statement that the FOIA search had encompassed documents in both the administrator’s official and internal e-mail accounts. The court also declined to order the disclosure of the internal e-mail address or the e-mail addresses of employees in the Executive Office of the President. The court accepted the recommendation that for 17 documents withheld under the claim of attorney-client privilege, EPA must either disclose such documents or submit supplemental materials explaining in sufficient detail why such documents are subject to the privilege. On the other hand, the court found that EPA had adequately supported the withholding of attorney comments and edits on EPA’s response to comments under the work product doctrine where EPA had received “a flood of comments” attacking its proposed endangerment finding, indicating the likelihood of litigation. The court also agreed with the magistrate judge that EPA fulfilled its FOIA obligations by directing plaintiff to publicly available documents and was not required to identify specific responsive documents.
California Clean Energy Committee v. City of San Jose (Cal. Ct. App. Sept. 30, 2013): added to the “State NEPAs” slide. In an unpublished opinion, the California Court of Appeal reversed the decision of the trial court dismissing plaintiff’s challenge to the City of San Jose’s compliance with CEQA in conjunction with its approval of an update to the City’s general plan entitled “Envision San Jose 2040 General Plan.” The appellate court disagreed with the trial court’s conclusion that plaintiff had failed to exhaust its administrative remedies, noting that plaintiff had submitted comments critical of the draft EIR (including comments critical of the draft EIR’s analysis of greenhouse gas emissions). The appellate court held that because the City Council had improperly delegated the duty to certify the EIR as complete to the planning commission, no administrative appeal was available to plaintiff, and plaintiff’s comment letter on the draft EIR sufficed to exhaust its administrative remedies.
SSHI LLC dba DR Horton v. City of Olympia (Wash. Ct. App. Sept. 24, 2013): added to the “Stop Government Action/Other Statutes” slide. Developer DR Horton challenged the City of Olympia’s denial of its master plan application for an 80-acre “neighborhood village.” In its challenge under the Washington Land Use Petition Act, DR Horton claimed, among other things, that the City Council erred in denying the application for failure to satisfy public transit requirements. In an unpublished opinion, the Washington Court of Appeals affirmed the trial court’s orders dismissing the petition. With respect to the public transit requirements, the appellate court held that the Council had not erred in concluding that the proposed master plan failed to satisfy transit requirements. The court also concluded that the public transit requirement did not violate the developer’s substantive due process rights because it was grounded in the legitimate public purpose of reducing greenhouse gases.
NEW CASES, MOTIONS, AND NOTICES
Conservation Law Foundation, Inc. v. Dominion Energy Brayton Point, LLC (D. Mass., voluntary motion to dismiss filed Oct. 22, 2013): added to the “Challenges to Coal-Fired Power Plants” slide. Three environmental groups filed a voluntary motion to dismiss with prejudice their citizen suit against the owner and operator of the Brayton Point Station, a coal-, natural gas-, and oil-fired electricity generating station in Somerset, Massachusetts. The groups indicated that they had reached a settlement with the defendant. The terms of the settlement were not filed with the court, but news reports indicated that the owners had agreed to remediate emissions violations and report on their efforts, install soot monitoring equipment, and pay $76,000 in civil penalties, $65,000 of which would fund projects in Somerset. Earlier in October a new owner of the power plant announced its intent to close the plant as of June 2017.
American Petroleum Institute, Notice of Intent to File Citizen Suit (Oct. 17, 2013): added to the “Challenges to Federal Action” slide. On October 17, 2013, the American Petroleum Institute submitted a 60-day notice of intent to sue to EPA Administrator Gina McCarthy. The notice letter asserted EPA failures, and anticipated failures, to comply with statutory deadlines for setting biomass-based diesel and renewable fuel requirements for 2014. The notice letter cataloged EPA’s “habitual, historical delays” in promulgating the annual renewable fuel standards and asserted that “EPA’s continual tardiness has real, adverse effects on industry.”
Center for Biological Diversity v. EPA (W.D. Wash, filed Oct. 16, 2013): added to the “Stop Government Action/Other Statutes” slide. On October 16, 2013, the Center for Biological Diversity (CBD) commenced a lawsuit in the district court for the Western District of Washington challenging EPA’s approvals of Oregon’s and Washington’s lists of impaired waters. CBD alleged that the approvals were arbitrary and capricious and in violation of the Clean Water Act because of EPA’s longstanding acknowledgment that “as a result of absorbing large quantities of human-made carbon dioxide emissions, ocean chemistry is changing, and this is likely to negatively affect marine ecosystems and species including coral reefs, shellfish, and fisheries.” CBD further alleged that EPA had before it “substantial evidence” that oyster production problems in Oregon and Washington stemmed from acidification. CBD submitted a letter to EPA in July 2013 asking it to reconsider the approvals.
American Fuel & Petrochemical Manufacturers v. EPA, No. 13-1268 (D.C. Cir., filed Oct. 10, 2013); American Petroleum Institute v. EPA, No. 13-1267 (D.C. Cir., filed Oct. 8, 2013): added to the “Challenges to Federal Action” slide. The American Petroleum Institute and American Fuel & Petrochemical Manufacturers filed petitions in the D.C. Circuit for review of EPA’s final rule setting the 2013 renewable fuel standards. In the final rule, EPA concluded that available fuels would be available to meet the statutory volumes of 2.75 billion gallons for advanced biofuels and 16.55 billion gallons for total renewable fuels. EPA reduced the cellulosic biofuel volume for 2013 from the statutory volume of 1.0 billion gallons to 6 million gallons.
Rocky Mountain Farmers Union v. Corey (9th Cir., petitions for rehearing en banc (RMFU, AFPM) filed Oct. 2, 2013): added to the “Challenges to State Action” slide. On October 2, 2013, two separate petitions for rehearing en banc were filed in the case challenging California’s low carbon fuel standard (LCFS). The Rocky Mountain Farmers Union plaintiffs—representing farming and ethanol interests—filed one petition, in which they argued that the Ninth Circuit had contravened Supreme Court precedent by “invok[ing] the state’s purported nondiscriminatory purposes to avoid strict scrutiny of a facially discriminatory regulatory regime” and that the court “also failed to recognize that the LCFS by design impermissibly regulates conduct occurring in other states.” Similarly, the American Fuels & Petrochemical Manufacturers Association (AFPM) plaintiffs—representing petrochemical, energy, and trucking industry groups—argued in their petition that the Ninth Circuit had impermissibly abandoned the strict scrutiny framework for assessing “regulations that, on their face, impose discriminatory burdens on imported products based on ‘state boundaries’” and that the LCFS’s lifecycle analysis regulated “interstate and foreign commerce—the production and transportation of fuels—occurring wholly outside of California.” The AFPM plaintiffs also argued that the Ninth Circuit’s conclusion that the LCFS’s crude oil provisions did not violate the dormant Commerce Clause was in conflict with Supreme Court and other federal circuit court precedents. The AFPM plaintiffs contended that the crude oil provisions, which benefited a certain California crude oil while burdening imported and Alaskan crude oils, were not immune from challenge merely because they also burdened other California crude oils.
American Tradition Institute v. University of Arizona (Ariz. Super. Ct., filed Sept. 6, 2013): added to the “Climate Protestors and Scientists” slide. The American Tradition Institute, now known as the Energy and Environment Legal Institute, announced on September 10, 2013 that it had filed a lawsuit challenging the University of Arizona’s compliance with Arizona’s Public Records Act. The plaintiff contends that the University failed either to produce responsive records or to provide adequate detail about certain records it withheld regarding “the notorious global warming ‘Hockey Stick’, and the group that made it famous, the Intergovernmental Panel on Climate Change.”
Communities for a Better Environment v. EPA (D.C. Cir., filed Oct. 31, 2011; oral argument Sept. 26, 2013): added to the “Force Government to Act” slide. In October 2011, petitioners challenged EPA’s final rule entitled “Review of National Ambient Air Quality Standards for Carbon Monoxide.” Among other things, petitioners challenged EPA’s decision not to set a secondary standard for carbon monoxide (CO) based on its climate-related effects. EPA had concluded that there was “insufficient information at this time to support the consideration of a secondary standard based on CO effects on climate processes.” The oral argument on September 26, 2013 addressed the issue of EPA’s obligation under Massachusetts v. EPA to regulate pollutants that cause climate change.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Nucifora v. Valuer-General (Australia, Queensland Land Court  QLC 19, 6 May 2013): Nucifora appealed a land valuation in an Australia state court asserting that the land was overvalued because it did not take into account permanent changes in weather patterns due to climate change. The judge dismissed the appeal, finding that Nucifora had failed show that the farm was permanently devalued as a result of climate change. In its reasoning, the court noted that “climate change is “still a subject of considerable public debate.” —Added to “Climate Adaptation” slide.
Industrie de bois de Vielsalm & Cie v. Region Wallone (European Court of Justice  C-195/12 Judgment of the General Court, Sept. 26, 2013): European Union adopted Directive 2004/8/EC to promote high-efficiency cogeneration and reduce greenhouse gas emissions. Under the Directive, Member States are to adopt certain support mechanisms to encourage cogeneration. In implementing the Directive, Walloon decided to exclude biomass from wood, because of the potentially negative environmental consequences. Industrie de bois de Vielsalm (IBV), which operates a cogeneration plant from sawmill waste, applied to the Walloon Government for green certificates under the support mechanism and was rejected. IBV challenged the refusal arguing that the exclusion of biomass from wood (1) was inconsistent with the Directive and (2) violated the EU Charter of Fundamental Rights. The Constitutional Court of Belgium referred these issues to the EU Court of Justice. The Court of Justice found Walloon’s interpretation of biomass was permissible under the Directive given its purpose. Furthermore, the Court found that while Member States were subject to the equal treatment and non-discrimination clauses of EU’s Charter of Fundamental Rights in implementing the cogeneration support mechanism, the Walloon Government did not defy those clauses when it excluded wood and wood waste from its biomass support scheme. —Added to “EU Emissions Trading Scheme” slide.
Commission v. Latvia (European Court of Justice  C-267/11, Judgment of the General Court, 3 Oct. 2013): Latvia brought an action for annulment of the contested decision of its national allocation plan (NAP) for the 2008-2012 period arguing that the Commission’s request for further information was not timely under Art 9.3 Directive 2003/87. The General Court annulled the contested decision, and the Commission appealed. The court upheld the annulment. —Added to “EU Emissions Trading Scheme” slide.
West Coast Ent. Inc. v Buller Coal Ltd (Supreme Court of New Zealand  NZSC 87, 19 Sept. 2013): Buller Coal Ltd and Solid Energy Ltd both applied to West Coast Regional Council and the Buller District Council for resource consents under the Resource Management Act of 1991 to mine coal for export purposes. At issue was whether the High Court wrongly upheld a declaration that the end use of the coal was irrelevant to the resource consents required under the act. The Supreme Court dismissed the appeal, finding that the purpose of the 2004 Amendment Act precluded consent authorities from taking into account indirect discharges of greenhouse gases in considering applications for resource consents. —Added to “Extraction of Natural Resources” slide.