Update #60 March 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 March additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)
FEATURED DECISION
Washington Environmental Council v. Bellon, No. 12-35323 (9th Cir. Feb. 3, 2014): added to the “Force Government to Act/Clean Air Act” slide. The Ninth Circuit denied rehearing en banc of its October 2013 ruling that plaintiffs seeking to compel the State of Washington to regulate greenhouse gas emissions from oil refineries did not have standing. Judge Ronald M. Gould, joined by two other judges, wrote a dissent from the denial calling the October ruling “overbroad” and warning that it would foreclose climate change-related citizen suits under the Clean Air Act and harm the public. Judge Gould wrote that the Supreme Court’s 2007 opinion in Massachusetts v. EPA, in his view, did not limit standing in environmental lawsuits related to climate change to states. Instead, he wrote: “The Supreme Court’s reasoning endorsed the principle that causation and redressability exist, independent of sovereign status, when some incremental damage is sought to be avoided. Accordingly, Massachusetts v. EPA also confers standing upon individuals seeking to induce state action to protect the environment.” In a concurring opinion, Judge Milan D. Smith, Jr. (author of the October opinion) wrote that the conclusion that plaintiffs lacked standing was compelled by the Supreme Court’s stringent requirements for standing in Lujan v. Defenders of Wildlife, as well as by Massachusetts v. EPA. Judge Smith reiterated the distinction between the instant case, in which private plaintiffs sought to compel promulgation of specific regulations, from Massachusetts v. EPA, in which sovereign states asserted a procedural right. Judge Smith rejected the dissent’s suggestion that the court had erected “new and inappropriate barriers to environmental litigation.” “Not so,” wrote Judge Smith. Rather, “[o]ur decision rests on a straightforward application of Lujan and Mass. v. EPA.”
DECISIONS AND SETTLEMENTS
PT Air Watchers v. Washington, No. 88208-8 (Wash. Feb. 27, 2014): added to the “State NEPAs” slide. The Washington Supreme Court affirmed determinations of the Department of Ecology (WDOE) authorizing the construction of a cogeneration facility at an existing kraft pulp and paper mill in Port Townsend, Washington. In its review under the State Environmental Policy Act (SEPA), WDOE issued a determination of nonsignificance for the project, which would increase the burning of woody biomass and add an electrical turbine to one of the mill’s steam boilers. In determining that greenhouse gas emissions from the project would not have significant adverse impacts, WDOE invoked the preference in state law (RCW 70.235.020(3)) for use of biomass fuel, combustion of which is part of the earth’s carbon cycle. WDOE also projected that by increasing the use of woody biomass, the project would reduce fossil fuel use by 1.8 million gallons each year. The court said that the invocation of the state statute was “a legitimate reference point” for WDOE to consider, and that SEPA did not require a statement regarding the exact amount of carbon dioxide that would be emitted by the project. The court also said that WDOE did not need to calculate the specific greenhouse gas emissions associated with transportation of the biomass to the facility since its estimates of additional truck routes needed to transport the fuel were “sufficient to evaluate the general change in greenhouse gas emissions.”
In re Petition of Footprint Power Salem Harbor Development LP for Approval to Construct a Bulk Generating Facility in the City of Salem, Massachusetts, EFSB 13-1 (Mass. Energy Facilities Siting Bd. final decision Feb. 25, 2014; settlement filed Feb. 18, 2014): added to the “Stop Government Action/Project Challenges” slide. In November 2013, the Conservation Law Foundation initiated several administrative and judicial appeals of approvals granted by the Massachusetts Energy Facilities Siting Board (EFSB) and the Massachusetts Department of Environmental Protection for a 630-MW natural gas-fired electric generation facility, the first generating facility proposal made to the EFSB since enactment of the Massachusetts Global Warming Solutions Act (GWSA) in 2008. After the EFSB issued a tentative decision granting additional approvals necessary for the project on February 4, 2014, the Conservation Law Foundation and the facility’s developer reached a settlement that the parties agreed would establish conditions ensuring compliance with the GWSA’s mandate to reduce greenhouse gas emissions in the state by 80% below 1990 levels by 2050. The conditions include declining annual carbon dioxide emissions limits and a limitation on the useful life of the facility (the facility must cease operations by 2050). In the absence of regulations implementing the GWSA, the settlement’s conditions are intended to serve as parameters for future applications for fossil fuel-fired generation. The EFSB issued a final decision incorporating these conditions on February 25, 2014.
WildEarth Guardians v. U.S. Office of Surface Mining Reclamation and Enforcement, No. 1:13-cv-00518 (D. Colo. Feb. 7, 2014): added to the “Stop Government Action/NEPA” slide. An environmental group commenced this lawsuit in the federal district court for the District of Colorado seeking to invalidate coal mining permits in Colorado, Montana, Wyoming, and New Mexico. Plaintiff alleged violations of the National Environmental Policy Act, including failure to involve the public in the review process and failure to take a hard look at impacts associated with coal transport and combustion. The court—in an opinion by a judge who admitted that he had “a history of granting transfer in environmental administrative cases”—ordered the action to be severed, and transferred the claims involving mining permits in other states to the district courts in those jurisdictions, saying that “[t]he value in having environmental claims litigated where their impacts resonate most deeply eclipses any alleged judicial economy in lumping together in one suit and one venue various locally charged claims.” The court was not swayed by the environmental group’s arguments that their claims protested a “practice or pattern” of not involving the public that should be heard in one action, or that judicial economy, the risk of inconsistent judgments, or prejudice to the plaintiff in the form of inconvenience and increased costs and delay otherwise weighed against severance and transfer.
U.S. v. Alabama Power Co., No. 2:01-CV-152-VEH (N.D. Ala. Feb. 5, 2014): added to the “Challenges to Coal-Fired Power Plants” slide. In 2001, the federal government sued Alabama Power Co. in the federal district court for the Northern District of Alabama for failure to comply with new source review (NSR) permitting requirements at existing coal-fired power plants in Alabama. In 2011, the court granted summary judgment to Alabama Power Co. after finding that expert testimony crucial to the federal government’s ability to establish that the projects undertaken by Alabama Power Co. were major modifications subject to the NSR permitting program was inadmissible. After the Eleventh Circuit ruled that the exclusion of the expert testimony was an abuse of discretion and remanded the action, the district court judge denied a motion by the federal government to recuse herself based on her mother’s ownership of shares in the parent company of the defendant and her own ownership of shares in a utility sector mutual fund that had holdings in the defendant’s parent company.
Utility Reform Network v. Public Utilities Commission, No. A138701; Independent Energy Producers Association v. Public Utilities Commission, No. A139020 (Cal. Ct. App. Feb. 5, 2014): added to the “Stop Government Action/Project Challenges” slide. In 2012, the California Public Utilities Commission (CPUC) approved an application by Pacific Gas and Electric Company (PG&E) to purchase a natural gas-fired power plant in Oakley, California. The administrative law judge in the proceeding had recommended denying the application because she found there was insufficient evidence of “a specific, unique reliability need” for the project. In doing so, she rejected PG&E’s reliance on hearsay evidence, including statements made by the California Independent System Operator (CAISO) regarding the need for flexible generating capacity to meet the state’s renewable energy targets. (CAISO had elected not to become a party to the proceeding, so the statements could not be cross examined.) CPUC instead adopted a proposed decision that relied on such statements as evidence of the potential for a reliability risk as the state moved towards meeting the 33% renewable portfolio standard by 2020. On appeal of CPUC’s decision, the California Court of Appeal annulled the approval, finding a lack of substantial evidence that the project was needed “to meet a specific, unique reliability risk.” The court said that uncorroborated hearsay evidence, while admissible, could not be the sole support for a finding of disputed fact.
Sierra Club v. Tahoe Regional Planning Agency, No. 12-CV-00044 (E.D. Cal. Jan. 31, 2014): added to the “State NEPAs” slide. In January 2013, the federal district court for the Eastern District of California ruled that the Tahoe Regional Planning Agency’s approval of a plan to expand a ski resort failed to adequately assess the economic feasibility of a smaller proposal. Although the court rejected other claims, including allegations of shortcomings in the agency’s analysis of the project’s greenhouse gas emissions, the court stayed construction and remanded for the required economic analysis. In late January 2014, Sierra Club and the developers announced that they had entered into a settlement in which they agreed to a scaled-down version of the project.
Competitive Enterprise Institute v. United States Environmental Protection Agency, Civil Action No. 12-1617 (D.D.C. Jan. 29, 2014): added to the “Force Government to Act/Other Statutes” slide. The Competitive Enterprise Institute (CEI) sought disclosure of e-mails to and from a secondary e-mail account used by the administrator of the United States Environmental Protection Agency (EPA). CEI sought e-mails that included the words “climate,” “endanger” (including, for example, “endangerment”), “coal,” or “MACT.” In late January 2014, the district court for the District of Columbia ruled that EPA—having produced more than 10,000 documents and complied with the court’s orders to prepare sample Vaughn indices detailing the basis for withholding all or portions of documents—had in large part complied with Freedom of Information Act (FOIA), stating: “For the most part, … CEI speaks loudly and carries a small stick. Despite the group’s bold claims, the law and the record show that EPA has almost entirely complied with its obligations under FOIA and that it is entitled to summary judgment on nearly every count. Still, CEI scores a few stray hits, and the Court will require EPA to polish off these last details before it terminates the case.” The “last details” involved providing additional information in two instances regarding e-mail addresses used by former EPA administrator and White House advisor Carol Browner in communications with EPA and providing a justification for withholding one of 25 documents that EPA apparently excluded inadvertently in the preparation of the sample Vaughn indices.
Conservation Law Foundation v. McCarthy, No. 1:11-cv-11657 (D. Mass. stay ordered Jan. 28, 2014; motion to dismiss denied in part Aug. 23, 2013): added to the “Adaptation” slide. Plaintiffs commenced this lawsuit in 2011 (amended complaint filed in 2012) to compel EPA to take steps pursuant to its authorities under the Clean Water Act to address the increasing nitrogen pollution in the embayments of Cape Cod. Plaintiffs’ allegations include that climate change will cause additional strain to coastal ecosystems that has not been considered in water quality management planning. In August 2013, the federal district court for the District of Massachusetts dismissed three of plaintiffs’ four claims, but declined to dismiss plaintiffs’ claim that EPA’s annual reviews of Massachusetts’s use of its State Revolving Fund (SRF) monies—which fund certain types of waste water management projects—were arbitrary, capricious, and contrary to Clean Water Act. Plaintiffs alleged that because Massachusetts had not updated its areawide waste treatment management plan for Cape Cod since 1978 and had therefore not evaluated the impact of climate change on water quality conditions in connection with the state’s water quality management planning, EPA could not lawfully approve the state’s use of SRF funds, which must be consistent with the areawide plan. In September 2013, EPA submitted a proposed plan of action to the court, asking that the action be stayed since the Cape Cod Commission had initiated the preparation of an update to the areawide plan, which, EPA said, was essentially the relief sought by plaintiffs. EPA’s proposed plan indicates that the work plan for the update includes consideration of climate change, sea level rise, and storm surge. In January 2014, the court ordered that the case be stayed until June 1, 2015 while work proceeds on the update; the stay is contingent on plaintiffs’ ongoing satisfaction with adherence to representations made in the September 2013 plan of action. The court also required the parties to report by March 31, 2014 as to whether they had decided to settle the case.
NEW CASES, MOTIONS, AND NOTICES
Utility Air Regulatory Group v. Environmental Protection Agency, No. 121146 (U.S., oral argument Feb. 24, 2014): added to the “Challenges to Federal Action” slide. The Supreme Court held oral argument in the challenge to EPA’s authority to regulate greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration program. The transcript of the oral argument is available here. A sampling of reporting on the oral argument: New York Times, SCOTUSblog, Washington Post, Los Angeles Times, AP.
Monroe Energy, LLC v. U.S. Environmental Protection Agency, No. 13-1265 (D.C. Cir., unopposed motion to sever Feb. 4, 2014): added to the “Challenges to Federal Action” slide. In this proceeding seeking review of EPA’s final rule setting the 2013 renewable fuel standard (RFS), EPA filed a motion to sever and establish a new docket number for issues pertaining to the cellulosic biofuel standard. In the motion to sever, EPA reported that it had agreed to reconsider the 2013 cellulosic biofuel standard based on information received after the rule was finalized from a producer of cellulosic biofuel that it had reduced its 2013 production estimate. EPA indicated that to provide regulatory certainty to parties subject to the RFS it would issue a new direct final rule concerning the cellulosic biofuel standard; to address concerns regarding the timing of the rulemaking process, EPA also proposed to make regular reports on its progress, starting on March 21, 2014. The court has not ruled on this motion. Oral argument is set for April 7, 2014.
Monroe Energy, LLC v. U.S. Environmental Protection Agency, No. 14-1014 (D.C. Cir., filed Jan. 28, 2014): added to the “Challenges to Federal Action” slide. After EPA proposed its 2014 renewable fuel standard, Monroe Energy, LLC petitioned the D.C. Circuit for review of EPA’s 2010 amendment to rules governing the RFS program, and in particular the provision that imposes compliance obligations on refiners and importers of diesel and gasoline fuels rather than on the blenders who produce the finished transportation fuels. Monroe Energy contends that its challenge to the 2010 rule is timely because, due to changed circumstances, EPA in the 2014 RFS proposes to waive the statutory standards for the required quantities of renewable fuels and to establish a new methodology for determining the standards that will increase the regulatory burden created by the 2010 rule for certain refiners and importers.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Macarthur v. Secretary of State for Communities and Local Government (United Kingdom, High Court of Justice Queen’s Bench Division [2013] EWHC 3 (Admin)): Petitioners challenged the local council’s denial of planning applications for the construction of two wind farms on the grounds that the harm from visual and character impacts outweighed the proposals’ modest contribution to climate change mitigation. The Inspector heard the appeals jointly and overturned the council’s decisions. Taking into account recently adopted policy schemes that encouraged renewable energy, especially to address climate change, the Inspector found that the benefits substantially outweighed visual, character, and sound impacts. Informal citizen groups challenged the Inspector’s decisions in the High Court of Justice alleging that the decisions were based on material error of fact and the Inspector’s reasoning was inadequate. The court rejected both arguments and upheld the Inspectors approval of the wind farm. —Added to “Renewable Projects” slide.
Newark & Sherwood District Council v. The Secretary of State for Communities and Local Government (United Kingdom, Queen’s Bench Division, Administrative Court [2013] EWHC 2162): Residents challenged an Inspector decision granting planning permissions for the installation of a wind turbine. The Inspector had found that the benefits of renewable energy production and benefits to the rural economy outweighed the harm of “inappropriate development.” The court upheld the Inspector’s decision, finding that the Inspector’s reasoning was acceptable despite the limited energy generation capacity of the turbine.—Added to “Renewable Projects” slide.
