Update #59 February 2014 
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 February additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)
FEATURED DECISION
Native Village of Point Hope v. Jewell, No. 12-35287 (9th Cir. Jan. 22, 2014): added to the “Stop Government Action/NEPA” slide. The Ninth Circuit reversed a district court’s grant of summary judgment to the federal government in a case challenging the Bureau of Ocean Energy Management’s (BOEM’s) approval of an oil and gas lease sale in the Chukchi Sea off the northwest coast of Alaska. The Ninth Circuit “largely” agreed with the district court that BOEM had not abused its discretion in its handling of missing information in the environmental review under the National Environmental Policy Act. The Ninth Circuit agreed, however, with the plaintiffs-appellants that BOEM had acted arbitrarily in choosing a one billion barrel estimate for the amount of economically recoverable oil from the lease sale, and that BOEM’s environmental review and ultimate decision were therefore based on inadequate information. Evidence in the record showed that BOEM employees, other agencies, and public commentators had expressed concerns about the rationale for the one billion barrel estimate and whether it significantly underestimated the likely amount of recoverable oil. The Ninth Circuit was not persuaded by the government’s argument that any errors in the estimate could be corrected for in site-specific environmental reviews later in the development process because “[i]t is only at the lease sale stage that the agency can adequately consider cumulative effects of the lease sale on the environment, including the overall risk of oil spills and the effects of the sale on climate change.” The Ninth Circuit therefore held that since BOEM had decided oil production was reasonably foreseeable, it should have based its analysis on “the full range of likely production if oil production were to occur.” Judge Rawlinson dissented in part, indicating that he would have deferred to the agency on the issue of the one billion gallon estimate.
DECISIONS AND SETTLEMENTS
Penalties for Violations of California’s Mandatory Greenhouse Gas Emissions Reporting Regulation (Jan. 27, 2014): added to the “Regulate Private Conduct” slide. The California Air Resources Board (CARB) announced that it had fined three companies a total of almost $1 million for violations of California’s greenhouse gas emissions reporting requirements. All of the violations concern 2011 emissions. Chevron U.S.A. Inc. must pay $364,500 for incorrectly reporting emissions from its El Segundo refinery and leaving the data uncorrected for 243 days. Chevron North America Exploration & Production Company must pay $328,500 for reporting emissions associated with the company’s San Joaquin Valley oil fields 219 days late. Southwest Gas Corporation must pay $300,000 for reporting emissions from gas supplied to California 320 days late. This is the second time California has imposed penalties for violations of the reporting requirements, and these penalties are the largest assessed so far. CARB indicated that the three companies had brought the missing reports to CARB’s attention, and that the violations were the companies’ first and had been determined to be inadvertent.
Rocky Mountain Farmers Union v. Corey, Nos. 12-15131, 12-15135 (9th Cir. Jan. 22, 2014). The Ninth Circuit denied the petitions for rehearing en banc of its September 2013 decision reversing the portions of a 2011 district court decision that found California’s low carbon fuel standard (LCFS) to be in violation of the dormant Commerce Clause. The Ninth Circuit denied the petitions over the dissent of seven judges, including the partial dissent of Judge Mary H. Murguia. She joined the portion of the dissent from the denial of rehearing that addressed facial discrimination. The dissent, authored by Judge Milan D. Smith, Jr., pointed to at least three ways in which the court had erred. One, the majority had found “at least facially constitutional a protectionist regulatory scheme that threatens to Balkanize our national economy.” Two, the majority “compound[ed] its error” by finding that the legitimate local concern of combating climate change justified the LCFS ethanol provisions when the state had admitted that they would have little to no effect on climate change. Three, the LCFS ethanol provisions clearly impermissibly sought to control conduct in other states. Although the court denied the petition for rehearing without an opinion, Judge Ronald M. Gould, who wrote the court’s September 2013 majority opinion, wrote a concurrence supporting the September opinion and countering the “overstatements” of the dissent. Of particular note to those who may be wondering what will happen next in this case, Judge Gould stated: “the tone and substance of the dissent is perhaps aimed at encouraging Supreme Court review. A petition for writ of certiorari from the parties who sought rehearing is likely forthcoming, but our court properly declines to give its judicial imprimatur to the dissent’s position. Because Supreme Court review is possible, however, I set forth my own views on that prospect. On the one hand, the Supreme Court’s considered judgment could be helpful to clarify as soon as practical what states may do of their own accord to deter or slow global warming.…On the other hand, the record in this case is incomplete and thus unsuitable for understanding the full scope of the issues presented.… The issues raised by the dissent … may be rendered moot by the district court’s decision [on remand], and in any event there will be a more complete record, including findings on purpose and effect, on which to make a ruling about the controlling legal principles.”
Mann v. National Review (D.C. Super. Ct. Jan. 22, 2014; D.C. Ct. App. Dec. 19, 2013). A District of Columbia Superior Court has again denied motions to dismiss a defamation lawsuit filed by the climatologist Michael Mann against National Review, the Competitive Enterprise Institute (CEI), and individual writers. The motions were directed at an amended complaint filed before the July 2013 decisions that denied motions by National Review and CEI to dismiss the original complaint. The “substantive” difference between the original complaint and the amended complaint was Mann’s assertion of one additional count, libel per se. In denying the motions, the new judge in the case (who replaced the retired Judge Combs Greene) ruled that, “regardless of whether the rulings embodied in the non-final orders of July 19, 2013, should be treated as ‘law of the case,’” he agreed with Judge Combs Greene’s conclusion that Mann had shown sufficient likelihood of success to defeat the special motion to dismiss the six counts in the original complaint under D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act. With respect to the new libel per se count, the court said that while some of defendants’ statements about Mann and his research were protected as “opinions and rhetorical hyperbole,” other statements—such as statements that Mann “molested and tortured data” or statements calling Mann’s work “fraudulent”—were “assertions of fact” that would be defamatory if proven false and would be actionable if made with actual malice. The court found that “[v]iewing the facts in the light most favorable to plaintiff, a reasonable jury is likely to find in favor of the plaintiff.” This Superior Court decision comes a month after the District of Columbia Court of Appeals dismissed the appeals of the court’s earlier decisions as moot, given that Mann had filed the amended complaint and defendants had filed new motions to dismiss. National Review, CEI, and individual defendant Rand Simberg have filed notices of appeal for the January 22 decision.
Svitak v. Washington (Wash. Ct. App. Dec. 16, 2013): added to the “Common Law Claims” slide. The Washington Court of Appeals affirmed the dismissal of a public trust doctrine case brought by minor children and their guardians to force Washington to accelerate its greenhouse gas reductions. The appellate court ruled that the claims presented a political question that must be left to the legislature to address (particularly where, as in this case, the legislature had already addressed greenhouse gas emissions), and that the issue of the state’s alleged inaction was not justiciable because there were no specific alleged constitutional or statutory violations.
Delta Construction Co. v. EPA (D.C. Cir. Dec. 12, 2013): added to the “Challenges to Federal Action” slide. The D.C. Circuit granted petitioner Clean Energy Fuels Corp.’s unopposed motion to dismiss it from consolidated proceedings challenging the U.S. Environmental Protection Agency’s (EPA’s) September 2011 rule establishing greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles. Clean Energy Fuels, which was described in the proceedings as “the leading provider of natural gas for transportation in North America,” had objected to the use of a higher global warming potential (GWP) for methane from mobile sources than for methane from stationary sources. This discrepancy was rectified in EPA’s November 2013 amendment to the Greenhouse Gas Reporting Rule (see discussion of Waste Management, Inc. v. EPA, below). Other parties continue to challenge the medium- and heavy-duty vehicle standards on other grounds. In November 2013, the parties submitted a joint motion seeking to sever the challenges that are dependent on the Supreme Court’s determination in Utility Air Regulatory Group v. EPA regarding stationary source greenhouse gas permitting and to proceed with a briefing schedule for the remainder of the challenges to the rule and related cases.
NEW CASES, MOTIONS, AND NOTICES
Waste Management, Inc. v. EPA (D.C. Cir., filed Jan. 28, 2014): added to the “Challenges to Federal Action/GHG Reporting Rule” slide. Waste Management, Inc. and three affiliates filed a petition in the D.C. Circuit seeking review of EPA’s November 2013 amendment of the Greenhouse Gas Reporting Rule (40 C.F.R. part 98). The November 2013 amendment revised the global warming potentials (GWPs) of certain greenhouse gases to make them consistent with the GWPs used in the UN Intergovernmental Panel on Climate Change’s Fourth Assessment Report. The GWP for methane was increased to 25 from 21. In comments on the proposed rule, Waste Management expressed a number of concerns, including concerns about the rule’s retroactive application, concerns regarding the increased number of landfills that would be subject to the reporting requirements due to the increase in methane’s GWP, and concerns over the effect of the GWP revisions on the applicability of Title V and prevention of significant deterioration (PSD) permitting programs.
Murray Energy Corp., 60-Day Notice of Intent to File Clean Air Act Citizen Suit (Jan. 21, 2014): added to the “Challenges to Federal Action/Other Rules” slide. Characterizing EPA’s administration and enforcement of the Clean Air Act (CAA) over the past five years as a “war on coal,” Murray Energy Corporation and certain subsidiaries and affiliates sent a letter to EPA on January 21, 2014 notifying the agency of its intent to file a citizen suit challenging EPA’s failure to fulfill a nondiscretionary duty under section 321 of the CAA to conduct continuing evaluations of potential loss or shifts of employment that may result from administration or enforcement of the CAA. The letter described EPA actions, including the development of proposed regulations for greenhouse gas emissions from power plants, that place “immense pressure” on the electric generating sector and other industries that traditionally burn coal, and said that “EPA has taken these actions to discourage the use and production of coal without adequate evaluation and consideration of their implications for the jobs of many thousands of employees in the coal sector and many other dependent industries. This is the very reason why Congress enacted CAA § 321(a), which expressly requires EPA to continuously evaluate the employment effects of these Agency actions.” The letter cited the EPA Administrator’s responses to questions from members of Congress as indicating that EPA has never conducted the evaluation required by section 321 and that it is not likely to do so in the future without judicial intervention.
Nebraska v. EPA (D. Neb., filed Jan. 15, 2014): added to the “Challenges to Federal Action/Other Rules” slide. A week after EPA proposed new source performance standards for greenhouse gas emissions from power plants, the State of Nebraska commenced a lawsuit seeking an order enjoining EPA’s work on the rulemaking and requiring withdrawal of the proposed rule. Nebraska alleges that the proposed rule violates the Energy Policy Act of 2005, which provides that EPA may not base required technologies or emissions reductions levels under section 111 of the CAA solely on the use of technologies by facilities receiving assistance under the Energy Policy Act. Nebraska’s complaint seeks a declaration that the proposed rule’s consideration of the federally financed deployment of carbon capture and sequestration (CCS) to support the finding that CCS is “adequately demonstrated” for section 111 purposes is unlawful.
Stevenson v. Delaware Department of Natural Resources and Environmental Control (Del. Super. Ct., filed Dec. 30, 2013): added to the “Challenges to State Action” slide. Individuals commenced a challenge in Delaware Superior Court to regulations published in December 2013 implementing changes to the Regional Greenhouse Gas Initiative (RGGI), including a reduction in the carbon dioxide emissions cap. Plaintiffs allege that the December 2013 regulations illegally decrease the cap below the level provided for in the original RGGI memorandum of understanding (MOU) that Delaware’s governor signed in 2005. They contend that Delaware statutory law expressly constrains the Secretary of the Department of Natural Resources and Environmental Control to regulate within the parameters of the 2005 MOU. Plaintiffs also contend that the regulations increase RGGI program fees in contravention of the Delaware constitution, which would require fee increases to be approved by a three-fifths majority of the Delaware General Assembly. A former Delaware state deputy attorney general is pursuing a parallel challenge to the regulations at the Delaware Environmental Appeals Board (In re 7 Del. Admin. Code 1147, CO2 Budget Trading Program).
In re ExxonMobil Chemical Company Baytown Olefins Plant, No. 13-11 (EAB, filed Dec. 26, 2013): added to the “Stop Government Action/Project Challenges” slide. The Sierra Club petitioned the Environmental Appeals Board (EAB) for review of the conditions in the prevention of significant deterioration (PSD) permit issued by EPA Region 6 for the addition of an ethylene production unit at an existing major source at the Baytown Olefins Plant in Harris County, Texas. Sierra Club said that facilities in Texas such as the Baytown Olefins Plant have a “unique opportunity” to consider deployment of CCS and development of carbon storage resources to reduce greenhouse gas emissions. (The petition notes a U.S. Geological Survey study that concluded that the Gulf Coast has 65% of the country’s estimated accessible carbon storage resources.) Sierra Club said that the Baytown facility’s PSD permit “exemplified the Region’s inadequate implementation of the PSD permitting program in general for [greenhouse gases]” and asked the EAB to remand the permit to Region 6 and require a “full and appropriate analysis” of CCS in the best available control technology analysis.
Conservation Law Foundation v. Broadrock Gas Services, LLC, No. 13-777 (D.R.I., filed Dec. 16, 2013): added to the “Regulate Private Conduct” slide. The Conservation Law Foundation (CLF) filed a CAA citizen suit against the owners and operators of the Central Landfill in Johnston, Rhode Island “for releasing polluted landfill gas into Rhode Island’s air.” All municipal solid waste generated in the state of Rhode Island is disposed of at the Central Landfill. In the complaint, which alleged violations of the new source performance standards, PSD, and Title V programs, CLF contended that pollutants emitted from the landfill “pose risks to human health, cause foul odors in areas surrounding the Landfill, and contribute to climate change.” CLF seeks penalties and declaratory and injunctive relief.
Cleveland National Forest Foundation v. California Department of Transportation (Cal. Super. Ct., filed Dec. 4, 2013): added to the “State NEPAs” slide. The Cleveland National Forest Foundation commenced a California Environmental Quality Act challenge to the approval of a project that would widen a 27-mile stretch of Interstate 5 in southern California, citing an “enormous surge in greenhouse gas emissions as compared to existing conditions” as one of the project’s potential adverse impacts. The petition for a writ of mandamus alleged that the conclusion in the environmental impact report (EIR) that the highway project “will actually help reduce greenhouse gas emissions … is wholly without foundation,” and that the EIR “not only fails to measure all types of greenhouse gases, but it also uses legally improper metrics to analyze the significance of the Project’s climate impacts.”
Mississippi Insurance Department v. U.S. Department of Homeland Security (S.D. Miss. Nov. 18, 2013): added to the “Adaptation” slide. The United States filed a motion to dismiss for lack of subject matter jurisdiction the Mississippi Insurance Department’s (MID’s) lawsuit seeking to enjoin or stay rate increases for the National Flood Insurance Program and to compel the completion of certain studies, including an affordability study, required by the Biggert-Waters Flood Insurance Reform and Modernization Act of 2012 (BW-12). The U.S. argued that MID had no standing as a state agency and that it could not bring claims on behalf of Mississippi citizens. The U.S. also said that an order from the court would not redress the alleged injuries because the relief sought was only available from Congress; that the actions MID sought to require did not constitute reviewable “agency action”; and that claims as to portions of BW-12 that the government did not intend to implement for at least a year were not ripe.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Newton and Anor v Great Lakes Council (Australia, New South Wales Land and Environment Court [2013] NSWLEC 1248, December 20, 2013): A landowner challenged a local council decision to grant a planning permit to build a house on two conditions: (1) the development consent would only last for twenty years, and (2) the house must be designed to withstand 2033 sea level rise conditions. The Australian state court found in part for the landowner, rejecting the first condition but allowing the second. The court found the time limit imposed under the first condition was unreasonable, especially given the presence of the second condition. —Added to “Climate Adaptation” slide.
Smith v. Pittwater Council (Australia Land and Environment Court of New South Wales [2013] NSWLEC 1145, May 21, 2013): A landowner appealed a local council’s refusal of a planning permit in Australian state court. The council had found that the proposed development would not ensure adequate safety from flood risks given increased flood levels from climate change. Allowing the use of more conservative risk estimates than those employed by the council, the court found that the risk was not sufficient to warrant rejection as long as the permit was subject to certain flood planning conditions. —Added to “Climate Adaptation” slide.
R. on the application of Corbett v. Cornwall Council (The High Court of Justice [2013] EWHC 3958, December 12, 2013): Local council granted approval for the construction of a wind farm despite visual landscape impacts because of the need for renewable energy sources to reduce greenhouse gas emissions. Local residents and others challenged the permit alleging that revocation of a policy document required the local council to reconsider its approval. The court dismissed the appeal finding that the planning policy changes did not warrant reconsideration of the proposal and that all procedural requirements were fulfilled. —Added to “Renewables Projects” slide.
