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, Update #79 (October 5, 2015)
FEATURED DECISION
D.C. Circuit Denied Stay of Clean Power Plan
The D.C. Circuit Court of Appeals denied emergency petitions for extraordinary writ in which 15 states and Peabody Energy Corporation sought to prevent the United States Environmental Protection Agency (EPA) from moving forward with its Clean Power Plan. In early August, EPA released the prepublication version of the final Clean Power Plan rule, which regulates carbon dioxide emissions from existing power plants. EPA has submitted the final rule for publication in the Federal Registerand believes that it will be published by the end of October. In denying the petitions, the D.C. Circuit said that the petitioners had not satisfied the “stringent standards” for staying agency action. In re West Virginia, No. 15-1277 (D.C. Cir. Sept. 9, 2015): added to the “Challenges to Federal Action” slide.
DECISIONS AND SETTLEMENTS
D.C. Circuit Denied Rehearing of Challenge to Non-Final Clean Power Plan
The D.C. Circuit Court of Appeals denied petitions in which states and other parties opposed to the Clean Power Plan sought rehearing of the court’s June 2015 decision dismissing a challenge to the proposed plan on the ground that it was a non-final agency action. The court also denied the alternative relief sought by the petitioners, a stay of the mandate, which the parties argued would allow the court to vacate the June 2015 decision as “academic” after EPA issues the final Clean Power Plan rule. The petitioners said a stay would be consistent with Judge Henderson’s opinion concurring with the June 2015 decision, in which she said she believed the court could exercise jurisdiction but that the arguments were “all but academic,” given that EPA would soon issue its final rule. In re Murray Energy Corp., No. 14-1112 (D.C. Cir. petitions forrehearing or rehearing en banc denied Sept. 30, 2015): added to the “Challenges to Federal Action” slide.
Oregon Federal Court Dismissed Challenge to Oregon Low Carbon Fuel Mandate
The federal district court for the District of Oregon dismissed a challenge to an Oregon law and its implementing regulations that establish a low carbon transportation fuel mandate. The law requires a 10% decrease over 10 years in lifecycle greenhouse gas emissions from transportation fuels produced in or imported to Oregon. The court noted that the plaintiffs’ dormant Commerce Clause discrimination claims were “largely barred by on-point precedent”—the 2013 decision Rocky Mountain Farmers Union v. Corey, in which the Ninth Circuit rejected dormant Commerce Clause claims against California’s low carbon fuel standard. The Oregon district court nonetheless addressed the discrimination claims and found that the plaintiffs had not stated claims that the Oregon low carbon fuel mandate would facially discriminate or that it would discriminate in purpose or effect against out-of-state fuels. The court also dismissed the claim that the Oregon law was extraterritorial regulation, rejecting plaintiffs’ argument that their claim was different from the unsuccessful extraterritoriality claim in Rocky Mountain Farmers Union because it was independently based on principles of interstate federalism, not just on the dormant Commerce Clause. The court also said that neither the Clean Air Act nor EPA’s Reformulated Gasoline Rule expressly preempted the Oregon law. The court dismissed a conflict preemption claim as well, finding both that plaintiffs did not have prudential standing since they did not intend to produce or sell the type of fuel they alleged the Oregon law would bar and also that the allegations of conflicts with federal programs were implausible. American Fuel & Petrochemical Manufacturers v. O’Keeffe, No. 3:15-cv-00467 (D. Or. Sept. 23, 2015): added to the “Challenges to State Action” slide.
Parties Agreed to Remedy for NEPA Violations in Approval of Mining Plan Modification
On September 14, 2015, the federal district court for the District of Colorado approved a joint proposed remedy submitted by the parties in a case in which WildEarth Guardians successfully alleged violations of the National Environmental Policy Act (NEPA) in connection with approvals of mining plan modifications. The remedy allowed Trapper Mining Inc. to continue mining activities subject to certain restrictions while the Office of Surface Mining Reclamation and Enforcement (OSMRE) conducted a new NEPA analysis. The analysis “will be prospective and will analyze the reasonably foreseeable environmental impacts of currently proposed and future mining activities …, as well as the past, present, and reasonably foreseeable impacts of any other actions or activities as may be appropriate or required by NEPA.” In its May 2015 decision finding that OSMRE had violated NEPA, the court said that the agency was required to consider the impacts of coal combustion. WildEarth Guardians v. United States Office of Surface Mining Reclamation and Enforcement, No. 1:13-cv-00518 (D. Colo. joint proposed remedy Sept. 10, 2015): added to the “Stop Government Action/NEPA” slide.
Federal Court Required NMFS to Explain Conclusion of No Short-Term Climate Impacts on Sea Turtles
The federal district court for the District of Columbia declined to vacate a biological opinion in which the National Marine Fisheries Service (NMFS) determined that the operation of seven fisheries would not jeopardize the continued existence of the Northwest Atlantic distinct population segment of loggerhead sea turtles. The court did, however, remand the matter to NMFS to address various concerns, including the short-term impacts of climate change on the loggerheads. The court said the biological opinion had described “clear evidence that climate change is exerting significant environmental impacts right now,” but had nevertheless concluded that climate change impacts on sea turtles in the short-term future would be negligible. The court required NMFS to provide an explanation of this conclusion. The court rejected most of plaintiff Oceana, Inc.’s other arguments, including the argument that NMFS had failed to consider the long-term effects of climate change on the loggerheads. Oceana, Inc. v. Pritzker, No. 12-cv-0041 (D.D.C. Aug. 31, 2015): added to the “Stop Government Action/Other Statutes” slide.
California Supreme Court to Consider CEQA Claims in Challenge to Los Angeles County Development; Court of Appeal Issued Third Decision Accepting Use of Business-as-Usual Emissions Baseline
In August, the California Supreme Court agreed to hear a challenge to the environmental review and land use approvals for a portion of Newhall Ranch, a major commercial and residential development in Los Angeles County. The court deferred briefing until after it renders a decision in Center for Biological Diversity v. Department of Fish & Wildlife, another case concerning Newhall Ranch in which the court is taking up the question of whether an agency conducting a California Environmental Quality Act (CEQA) review may deviate from the existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher “business-as-usual” baseline. In the instant case, the California Court of Appeal upheld Los Angeles County’s use of the business-as-usual baseline as well as other aspects of the environmental impact report and approvals in April 2015. In late September, the California Court of Appeal affirmed a trial court’s dismissal of claims in connection with environmental approvals for another section of Newhall Ranch known as Mission Village. As in Center for Biological Diversity v. Department of Fish & Wildlife and Friends of the Santa Clara River v. County of Los Angeles, the court was not persuaded by claims that it was legally impermissible for the environmental review to compare the project’s emissions with emissions under a business-as-usual scenario. The petitioners indicated that they would ask the California Supreme Court to hear this case. California Native Plant Society v. County of Los Angeles, No. B258090 (Cal. Ct. App. Sept. 29, 2015); Friends of the Santa Clara River v. County of Los Angeles, No. S226749 (Cal. Aug. 19, 2015): added to the “State NEPAs” slide.
California Appellate Court Upheld San Diego County’s Determination That Wind Energy Program’s Benefits Outweighed Its Impacts
The California Court of Appeal upheld a final environmental impact report and amendments to a general plan and zoning ordinance related to wind turbines in San Diego County. One claim rejected by the court was that the County’s Board of Supervisors had not provided sufficient support for the conclusion that the wind energy project’s benefits would outweigh its significant environmental impacts. The Board identified four categories of benefits in its “statement of overriding considerations,” one of which was energy and greenhouse gas reductions. The petitioners’ claims were primarily focused on other purported benefits; the court found that petitioners’ had failed to show that substantial evidence did not support the Board’s findings regarding the benefits.Backcountry Against Dumps v. San Diego County Board of Supervisors, No. D066135 (Cal. Ct. App. Sept. 16, 2015): added to the “State NEPAs” slide.
EPA Denied Petition for TSCA Regulation of Carbon Dioxide Emissions
EPA denied a rulemaking petition seeking regulation of carbon dioxide emissions under the Toxic Substances Control Act (TSCA). The Center for Biological Diversity and a retired EPA scientist had sought action by EPA, citing harms posed by carbon dioxide emissions, including ocean acidification. EPA acknowledged the impacts of carbon emissions on ocean acidification and marine ecosystems, but found that the petitioners had not supplied sufficient or specific enough information to make the “unreasonable risk” risk finding necessary to regulate under Section 6 of TSCA. In addition, EPA found that addressing carbon dioxide emissions under authorities other than TSCA would be more efficient and effective. EPA also found that there was insufficient information to require testing under TSCA Section 4 to determine whether anthropogenic carbon dioxide emissions present an unreasonable risk. Letter from EPA to Center for Biological Diversity and Donn J. Viviani (Sept. 25, 2015) andPrepublication Copy of Carbon Dioxide Emissions and Ocean Acidification; TSCA Section 21 Petition; Reasons for Agency Response (signed Sept. 25, 2015): added to the “Force Government Action/Other Statutes” slide.
NEW CASES, MOTIONS, AND NOTICES
Oklahoma Withdrew Tenth Circuit Appeal of Dismissal of Clean Power Plan Lawsuit
Oklahoma filed a consent motion in the Tenth Circuit Court of Appeals for voluntary dismissal of its appeal of a federal district court’s dismissal of its challenge to the proposed Clean Power Plan. Oklahoma indicated that because the Tenth Circuit had denied its request for a stay pending appeal, EPA would formally promulgate the final Clean Power Plan in the next several months. Oklahoma said that final promulgation of the rule would deprive the Tenth Circuit of continuing jurisdiction since the Clean Air Act vests exclusive jurisdiction over challenges to final rules in the D.C. Circuit Court of Appeals.Oklahoma v. McCarthy, No. 15-5066 (10th Cir. Sept. 18, 2015): added to the “Challenges to Federal Action” slide.
Manufacturers Challenged New EPA Restrictions on Hydrofluorocarbons
Two chemical manufacturers and a manufacturer of composite preform products used in the marine and transportation industries filed petitions in the D.C. Circuit Court of Appeals seeking review of EPA’s final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) under its Significant New Alternatives Policy program for replacing ozone-depleting substances under Section 612 of the Clean Air Act. The final rule changed the status of certain HFCs and HFC blends for end-uses in the aerosols, foam blowing, and refrigeration and air conditioning sectors based on their high global warming potential. EPA determined that alternatives were available or potentially available that posed a lower overall risk to human health and the environment. On September 23, the D.C. Circuit consolidated the three cases. Compsys, Inc. v. EPA, No. 15-1334 (D.C. Cir., filed Sept. 18, 2015); Arkema Inc. v. EPA, No. 15-1329 (D.C. Cir., filed Sept. 17, 2015); Mexichem Fluor, Inc. v. EPA, No. 15-1328 (D.C. Cir., filed Sept. 17, 2015): added to the “Challenges to Federal Action” slide.
Lawsuit Alleged That Federal Government Should Address Climate Impacts of Coal Mining Plans
WildEarth Guardians filed a lawsuit in the federal district court for the District of Colorado alleging that the federal government improperly approved mining plans for the development of federally owned coal in Colorado, New Mexico, and Wyoming. More generally, WildEarth Guardians accused the Secretary of the Interior, the Department of the Interior, and the Office of Surface Mining, Reclamation and Enforcement of engaging in an “ongoing pattern and practice of uninformed decisionmaking.” The complaint included seven claims for relief under NEPA, including failure to consider direct, indirect, and cumulative climate impacts resulting from mining, burning, and transporting coal, and failure to consider the climate impacts of similar and cumulative actions. WildEarth Guardians contended that the defendants should have used the social cost of carbon protocol to address the costs of reasonably foreseeable carbon dioxide emissions. WildEarth Guardians v. Jewell, No. 1:15-cv-02026 (D. Colo., filed Sept. 15, 2015): added the “Stop Government Action/NEPA” slide.
WildEarth Guardians Challenged Lease Approval for Utah Coal Mine
WildEarth Guardians filed a petition for review in the federal district court for the District of Colorado, seeking to vacate federal approvals of a lease to expand and extend the life of the Skyline Mine, an underground coal mine in Utah. WildEarth Guardians alleged that the United States Bureau of Land Management, which issued the lease, and the United States Forest Service, which consented to the lease’s issuance, had not complied with NEPA or the Mineral Leasing Act. WildEarth Guardians alleged that the agencies’ environmental review relied on an analysis that was 15 years old, and had failed to consider air quality and climate impacts, including climate impacts associated with coal mining, transport, and burning. The organization also alleged that the agencies had failed to consider costs associated with carbon dioxide emissions and had failed to consider cumulative climate impacts of similar mining approvals and proposals. WildEarth Guardians v. Jewell, No. 15-cv-1984 (D. Colo., filed Sept. 11, 2015): added to the “Stop Government Action/NEPA” slide.
Environmental Groups Mounted CEQA Challenge to Logistics Center
Five environmental groups commenced a lawsuit against the City of Moreno Valley, California, alleging that it failed to comply with CEQA when it approved the World Logistics Center Project. The groups alleged that the project would cover 2,610 acres and more than 40 million square feet, which would make the warehouse complex larger than Central Park in New York City. The groups alleged numerous procedural and substantive failures in the City’s CEQA review, including that the final environmental impact report (EIR) failed to analyze and mitigate mobile source greenhouse gas emissions based on the allegedly faulty premise that such emissions are capped by California law. Center for Community Action and Environmental Justice v. City of Moreno Valley, No. RIC1511327 (Cal. Super. Ct., filed Sept. 23, 2015): added to the “State NEPAs” slide.
Plaintiffs Added Climate Change NEPA Claim to Chukchi Sea Lease Sale Challenge
Plaintiffs filed a motion for summary judgment and a supplemental complaint in their challenge in the federal district court for the District of Alaska to the second supplemental environmental impact statement (SEIS) for an oil and gas lease sale in the Chukchi Sea off the Alaskan coast. The plaintiffs, which are environmental groups and Alaskan communities, added a new count alleging that the Bureau of Ocean Energy Management’s (BOEM’s) failure to analyze the climate change effects of the consumption of oil and gas from the lease sale in the second SEIS violated NEPA. In support of their motion for summary judgment, the plaintiffs contended that advances had been made since preparation of earlier environmental analyses that would allow the agency to assess the impacts of oil and gas extraction on climate change based on “an overall atmospheric ‘carbon budget.’” The plaintiffs said that BOEM had improperly concluded that it could not perform an assessment of whether the lease sale would affect energy markets and consumer behavior, and had also improperly concluded that NEPA did not require it to consider climate impacts of burning lease sale fuels.Alaska Wilderness League v. Jewell, No. 1:08-cv-00004 (D. Alaska third supplemental complaint and opening brief Aug. 28, 2015): added to the “Stop Government Action/NEPA” slide.
Environmental Groups Threatened Lawsuit Over Corps of Engineers Permits for Virginia Oil Terminal
The Center for Biological Diversity and Sierra Club sent a request for reevaluation and 60-day notice of intent to sue to the U.S. Army Corps of Engineers (Corps) in connection with permits issued by the Corps for an oil transport facility in Yorktown, Virginia. The letter asked the Corps to reevaluate the granting of permits under the River and Harbors Act and the Clean Water Act. The organizations said that the Corps had failed to consider certain information in its “public interest review,” including threats posed by rising sea levels. The organizations also asserted that the Corps violated the Endangered Species Act by failing to consult with the National Marine Fisheries Service regarding potential effects of the agency action on the endangered Atlantic sturgeon and Kemp’s ridley and loggerhead sea turtles. Letter from Center for Biological Diversity and Sierra Club to U.S. Army Corps of Engineers (Sept. 24, 2015): added to the “Adaptation” slide.
Here are recent additions to the Non-U.S. Climate Litigation Chart.
Court Ruled Against Pakistani Government for Failure to Implement Climate Policy, Created Climate Change Commission
An appellate court in Pakistan granted the claims of Ashgar Leghari, a Pakistani farmer, who had sued the national government for failure to carry out the 2012 National Climate Policy and Framework. On September 4, 2015 the court, citing domestic and international legal principles, determined that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.” As a remedy, the court 1) directed several government ministries to each nominate “a climate change focal person” to help ensure the implementation of the Framework, and to present a list of action points by December 31, 2015; and 2) created a Climate Change Commission with representatives of key ministries, NGOs, and technical experts. On September 14 the court issued a supplemental decision naming 21 individuals to the Commission and vesting it with various powers. Ashgar Leghari v. Federation of Pakistan (Lahore High Court Green Bench, 2015).
Petition Sought Investigation of Major Emitters for Alleged Human Rights Violations
Greenpeace Southeast Asia and numerous other organizations and individuals filed a petition asking the Commission to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” The core factual allegation of the petition draws on research identifying particular entities’ quantum of responsibility for anthropogenic greenhouse gas emissions since 1751. The petition names 50 of those entities, all publicly traded corporations, as respondents. It identifies multiple sources of human rights, but draws most heavily on the UN Human Rights Commission’s Guiding Principles on Business and Human Rights. In re Greenpeace Southeast Asia et al., CHR Case No. 2015-__ (Commission on Human Rights of the Philippines, 2015).
