Clean Air Act Climate Litigation EPA NEPA

November 2015 Update to the Climate Litigation Charts

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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 #80 (November 2, 2015)

FEATURED CASE

Opponents of Clean Power Plan Filed Petitions for Review, Asked D.C. Circuit for Stay

After the United States Environmental Protection Agency (EPA) published its final Clean Power Plan rule in the Federal Register, 21 petitions for review were filed in the D.C. Circuit Court of Appeals to challenge the rule, which regulates carbon dioxide emissions from existing power plants. The petitioners included 26 states; a number of utilities, electric cooperatives, and trade associations representing utilities; two unions representing miners and workers in skilled trades such as welding and fabrication of boilers, ships, pipelines, and other industrial facilities; a coal mining company and other organizations representing the coal industry; the National Association of Home Builders; the U.S. Chamber of Commerce; a trade association for railroads; and other organizations representing manufacturing, industrial, and business interests.

The pending petitions, which the D.C. Circuit has consolidated, are as follows:

The states led by West Virginia have asked the D.C. Circuit to stay the rule and to expedite consideration of their petition. In addition, Oklahoma and North Dakota each asked for a stay in their separate proceedings, and three other motions for a stay were filed: one by petitioners representing the coal industry, one by the U.S. Chamber of Commerce and its co-petitioners, and one by utility interests (led by Utility Air Regulatory Group) and the two unions. The American Wind Energy Association, Advanced Energy Economy (“a national organization of businesses dedicated to making the energy we use secure, clean, and affordable”), and nine environmental and public health organizations (led by the American Lung Association) sought to intervene on behalf of EPA, while Peabody Energy Corporation, a coal company, sought to intervene on behalf of the petitioners.

After EPA submitted a motion for a consolidated briefing schedule, the D.C. Circuit issued an order on October 29 that would require any additional motions for a stay to be filed by November 5, though one petitioner, Basic Electric Power Cooperative, has objected to this schedule as unfair and asked for reconsideration. The October 29 order required briefing on the stay motions to be completed on December 23. In addition petitioners were ordered to identify lead or liaison counsel for appropriate groups of petitioners within 10 days. In a separate clerk’s order, deadlines were set for other submissions, including statements of issues to be raised (November 30), procedural motions (November 30), and dispositive motions (December 14). In addition to its petition challenging the existing power plants rule, North Dakota filed a petition for review of EPA’s new source performance standards for greenhouse gas emissions from new, modified, and reconstructed power plants. North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed Oct. 23, 2015): added to the “Challenges to Federal Action” slide.

DECISIONS AND SETTLEMENTS

Sixth Circuit Upheld Kentucky Coal Plant’s Switch to Natural Gas

The Sixth Circuit Court of Appeals affirmed the Tennessee Valley Authority’s (TVA’s) decision to replace coal-fired electric generating units with natural gas-powered units at a Kentucky power plant. The court said that the TVA acted within its discretion when it determined, based on an environmental assessment, that switching to natural gas would not have a significant impact on the environment. The court found that the TVA had taken a hard look at 19 environmental issues, including climate change. The court was not persuaded by arguments made by the plaintiff, Kentucky Coal Association, including a contention that the TVA had not considered the cumulative impacts of building a natural gas pipeline, that the TVA prejudged the switch to natural gas, and that switching to natural gas would have “devastating socioeconomic effects.” The court also said that the TVA’s actions were not arbitrary and did not violate the Tennessee Valley Authority Act. Kentucky Coal Association, Inc. v. Tennessee Valley Authority, No. 15-5163 (6th Cir. Oct. 23, 2015): added to the “Challenges to Federal Action” slide.

Denial of Beluga Whale Import Permit Affirmed by Georgia Federal Court, Decision Mentioned Possible Climate Change Impacts on Whale Population

The Georgia Aquarium lost its appeal of a federal denial of a permit to import 18 beluga whales from Russia for use in a breeding cooperative and for public display. The aquarium applied for the permit under the Marine Mammal Protection Act (MMPA). The National Marine Fisheries Service (NMFS) denied the application on the grounds that the aquarium had not provided sufficient information to demonstrate that MMPA import permit criteria were met, including information to demonstrate that the permit would not have an adverse impact on a beluga whale stock in Russia’s Sea of Okhotsk. NMFS’s findings included that in considering impacts on the whale stock the aquarium should not discount other sources of “human-caused” removal besides intentional live captures—possibly including climate change, though FWS said that predicting the type and magnitude of climate change impacts was “difficult at this time.” The federal district court for the Northern District of Georgia upheld FWS’s findings regarding other potential human-caused removals as a reasonable adoption of a precautionary approach.Georgia Aquarium, Inc. v. Pritzker, No. 1:13-CV-3241-AT (N.D. Ga. Sept. 28, 2015): added to the “Challenges to Federal Action” slide.

Federal Court Vacated Listing of Lesser Prairie Chicken as Threatened, Downplayed Climate Change as Factor for Assessing Conservation Plan

The federal district court for the Western District of Texas vacated the listing of the lesser prairie chicken as a threatened species under the Endangered Species Act. The court said that the United States Fish and Wildlife Service (FWS) had not properly followed its own Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) when it considered a rangewide plan (RWP) implemented by five states to protect the lesser prairie chicken’s habitat and range. Under the plan voluntary private participants, including oil and gas companies, fund conservation efforts. The court said FWS improperly interpreted and applied the PECE “in a cursory and conclusory manner.” One of the numerous findings in which the court grounded its determination that the FWS had acted arbitrarily and capriciously was a finding that FWS made a “critical assumption” that the RWP did not address the threat of drought and climate change, and that this assumption might have tainted FWS’s assessment of whether the RWP described threats to the species and how the conservation plan reduced those threats. The court said that FWS’s assumption “fail[ed] to adequately account for the main function of the RWP: creating additional habitat and access to that habitat (through connectivity zones) to ameliorate the effects of drought and habitat fragmentation.” Permian Basin Petroleum Association v. Department of the Interior, No. 14-cv-50 (W.D. Tex. Sept. 1, 2015): added to the “Challenges to Federal Action” slide.

EPA, Environmental Groups, and Utah Power Plant Operator Agreed to Settlement of Air Permit Appeal

EPA Region 8, Sierra Club, WildEarth Guardians, and Deseret Generation & Transmission Cooperative (Deseret) reached an agreement to settle two appeals of a Title V permit issued for the coal-fired Bonanza Power Plant in Uintah County, Utah. The settlement agreement provided that Deseret would apply for a Minor New Source Review (NSR) permit with specified terms restricting emissions of nitrogen oxides and limiting coal consumption for the remainder of the plant’s coal-fired unit’s operating life to 20 million short tons unless specified pollution control requirements are met. The settlement agreement provided that neither EPA nor the two environmental groups would oppose credit taken by the facility for reductions in carbon dioxide emissions resulting from the reduced coal consumption or from relying on the carbon dioxide reductions to demonstrate compliance with any applicable carbon dioxide standards. In addition to dismissal of the Title V permit appeals, WildEarth Guardians agreed that it would withdraw its lawsuit in the federal district court for the District of Colorado challenging approvals authorizing development of a coal lease for a mine that that was the sole source of fuel for the Deseret power plant (WildEarth Guardians v. United States Bureau of Land Management, No. 1:14-cv-01452 (D. Colo.)). The agreement does not, however, prevent WildEarth Guardians or Sierra Club from opposing any application by Deseret to acquire additional sources of fuel. Deseret agreed that it would withdraw an application to construct a waste coal-fired unit at the plant. A pending Prevention of Significant Deterioration (PSD) permit application and a proposed PSD permit would also be withdrawn. EPA published notice of the proposed settlement in the Federal Register on October 22, 2015, which opened a 30-day period for public comment. In re Deseret Power Electric Cooperative, Bonanza Power Plant, Nos. 15-01, 15-02 (Envtl. Appeals Bd. settlement agreement signed by EPA Oct. 5, 2015, Federal Register notice Oct. 22, 2015): added to the “Challenges to Coal-Fired Power Plants” slide. 

Murray Energy Agreed to Pay Fine for Pro-Coal, Anti-Obama Signs

Murray Energy Corporation (Murray Energy) paid a $5,000 fine to resolve an enforcement case brought by the Federal Election Commission (FEC) involving the company’s campaign spending for yard signs in Ohio and Pennsylvania in 2012 that read “STOP the WAR on COAL—FIRE OBAMA.” The conciliation agreement executed by Murray Energy and the FEC said that the FEC had “found reason to believe” that Murray Energy violated disclosure and reporting requirements for public communications that expressly advocate for the election or defeat of a federal candidate. In re Murray Energy Corp., MUR 6659 (FEC Sept. 15, 2015): added to the “Regulate Private Conduct” slide.

NEW CASES, MOTIONS, AND NOTICES

Environmental Organizations Appealed Dismissal of Case That Sought Updated NEPA Review for Coal Management Program

Western Organization of Resource Council and Friends of the Earth filed a notice of appeal in the D.C. Circuit Court of Appeals on October 27, 2015, two months after the district court for the District of Columbia dismissed their lawsuit that sought to compel an updated environmental review for the federal coal management program. The district court concluded that it lacked authority to require supplemental review under the National Environmental Policy Act (NEPA) because there was no ongoing major federal action. Western Organization of Resource Councils v. Jewell, No. 15-5294 (D.C. Cir. Oct. 27, 2015): added to the “Stop Government Action/NEPA” slide.

Unsuccessful Challengers of Colorado Renewable Energy Standard Asked for Supreme Court Review

On October 9, 2015, the Energy & Environmental Legal Institute (EELI) filed a certiorari petition in the United States Supreme Court seeking review of the Tenth Circuit Court of Appeals decision upholding Colorado’s Renewable Energy Standard (RES). The Tenth Circuit held that the RES did not constitute impermissible extraterritorial regulation and did not violate the Constitution. EELI argued in its petition that the Tenth Circuit too narrowly interpreted Supreme Court precedent regarding the Constitution’s bar on state action regulating extraterritorial conduct. EELI said that the Tenth Circuit fell into the “conceptual trap” of pigeon-holing cases concerning extraterritorial conduct into the dormant Commerce Clause, when the jurisprudence on extraterritoriality “stems … from the structure of our system as a whole.” EELI also asserted that there was a circuit split on the issue of whether the prohibition of extraterritorial regulation of interstate commerce applied exclusively to price control or price affirmation statutes, and that the risks of states “exporting” their regulatory agendas nationwide warranted the Supreme Court’s exercise of supervisory powers. Energy & Environment Legal Institute v. Epel, No. 15-471 (U.S., filed Oct. 9, 2015): added to the “Challenges to State Action” slide.

Environmental Groups Appealed Wyoming Federal Court’s Denial of Their Coal Lease NEPA Claims 

WildEarth Guardians and Sierra Club filed an appeal in the Tenth Circuit Court of Appeals of the decision of the federal district court for the District of Wyoming that upheld federal approvals for coal leases in the Powder River Basin in Wyoming. Among the claims rejected by the district court was a claim that the NEPA review had not given sufficient consideration to climate change impacts, including the effects of carbon dioxide from coal mining and combustion. WildEarth Guardians v. United States Bureau of Land Management, No. 2:13-cv-00042 (D. Wyo. Oct. 7, 2015): added to the “Stop Government Act/NEPA” slide.

Young People Filed Lawsuit in Pennsylvania to Compel Climate Action

Five children and a young adult filed a lawsuit in Pennsylvania Commonwealth Court against Pennsylvania Governor Tom Wolf and six Pennsylvania agencies and the heads of those agencies seeking to compel regulation of carbon dioxide and other greenhouse gas emissions. The plaintiffs claimed that the obligation to regulate arose under the Pennsylvania Constitution’s Environmental Rights Amendment (Article I, Section 27). The plaintiffs asked the court to declare the atmosphere a public trust resource protected by the Environmental Rights Amendment and to declare that the defendants had failed to meet their duties as public trustees. They asked the court to require the defendants to take specific actions, including determining the atmospheric concentration of greenhouse gases that must be achieved to satisfy their constitutional obligations as trustees and to prepare and implement regulations to reduce greenhouse gas emissions to achieve those concentrations. Funk v. Wolf, No. 467 MD 2015 (Pa. Commw. Ct., filed Sept. 16, 2015): added to the “Common Law Claims” slide.

Environmental Groups Asked EPA to Remove More HFCs from List of Acceptable Substitutes for Ozone-Depleting Substances

The Natural Resources Defense Council (NRDC) and the Institute for Governance & Sustainable Development (IGSD) petitioned EPA to remove additional high global warming potential (GWP) chemicals from its list of acceptable substitutes in its Significant New Alternatives Policy Program (SNAP). The SNAP list identifies alternatives to ozone-depleting substances for specified end uses. NRDC and IGSD noted EPA’s delisting of a number of high-GWP chemicals from the SNAP list earlier this year, and urged EPA to continue to remove high-GWP hydrofluorocarbons when lower-GWP alternatives are available. NRDC & IGSD, Petition for Change of Status of HFCs Under Clean Air Act Section 612 (Significant New Alternatives Policy) (Oct. 6, 2015): added to the “Force Government to Act/Clean Air Act” slide.

Here are recent additions to the Non-U.S. Climate Litigation Chart.

UK Planning Inspector Overturned County Council’s Rejection of Proposed Solar Farm

KS SPV35 Ltd. appealed the Monmouthshire County Council’s rejection of its application to install a solar farm near an Area of Outstanding Natural Beauty. The Planning Inspector overturned the Council’s decision after considering arguments that the slightly revised plan for a solar farm would result in a loss of natural green space or harm to the area’s natural character and wildlife. The Inspector conditioned approval of the plan for a solar farm on construction and maintenance of a surrounding boundary hedge of at least three meters in height. KS SPV35 Ltd v. Monmouthshire County Council [2015] P.A.D. 52.

Irish High Court: Peat-Fired Power Plant’s Environmental Review Must Account for Impacts of Peat Extraction

An Taisce and Friends of the Irish Environment, Ltd., challenged the approval granted by An Bord Pleanála, Ireland’s planning board, of Edenderry Power Ltd.’s application to extend operation of its peat- and biomass-burning power plant from 2015 to 2023. Bord Na Móna Allen Peat Limited and others engaged in peat extraction and transport were also parties to the case.  At issue was whether the approval granted to Edenderry had complied with the EU’s Environmental Impact Assessment Directive, which was incorporated into Irish law in 2010. An Taisce argued that the approval had not because it had considered only the impacts of the plant’s operations but not those resulting from the peat extraction and transport involved in supplying the bulk of the plant’s feedstock. Edenderry and the other respondents countered that because neither the peat nor plant operations were contingent upon one another they were unrelated for the purposes of environmental review. The High Court, noting that it was required to base its decision on the “actual reality of the project” at issue, rejected Edenderry’s arguments as theoretical—the permit application, after all, contemplated sourcing from these particular bogs, such that any other approach would constitute a material change to the application. Thus, “[t]here is functional interdependence as the power plant relies for the vast majority of its raw material on the designated bogs.” An Taisce v. An Bord Pleanála [2015] IEHC 633.

Jessica Wentz
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