Climate Litigation Charts: February 2016 Update

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 litigation charts (Update #83).

FEATURED CASE

On January 21, 2016, the D.C. Circuit Court of Appeals denied motions asking for a stay of EPA’s Clean Power Plan. The order stated that the petitioners had not “satisfied the stringent requirements for a stay pending court review.” The court also ordered that consideration of the appeals be expedited. Oral argument was scheduled for June 2, 2016, and the court asked the parties to reserve June 3 in the event that argument did not conclude on the 2nd. The order indicated that the members of the panel that will review the challenge are Judges Judith W. Rogers (appointed by President Bill Clinton), Karen LeCraft Henderson (appointed by President George H.W. Bush) and Sri Srinivasan (appointed by President Barack Obama). On January 28, the court set the briefing schedule, after receiving proposals from the parties. The schedule required submission of petitioners’ briefs by February 19, EPA’s brief byMarch 28, and final briefs by April 22. After the D.C. Circuit denied the stay, a group of 29 states and state agencies led by West Virginia and Texas filed an application for an immediate stay with the Supreme Court. That application was joined by applications from business associations, from the coal industry, from utility and allied parties, and from North Dakota. The applications are directed to Chief Justice John Roberts, who is the circuit justice for the D.C. Circuit. Roberts requested EPA’s response by February 4. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. order denying stay Jan. 21, 2016): added to the “Challenges to Clean Power Plan” slide. [Editor’s Note: The numerous petitions, motions, and other documents filed with respect to the Clean Power Plan are available on pages 15–16 of the chart.]

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Review D.C. Circuit’s Order That Left in Place EPA Regulation of Greenhouse Gas Emissions from “Anyway” Sources 

The United States Supreme Court denied certiorari to the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation, which sought review of the D.C. Circuit’s order governing further proceedings after the Supreme Court’s 2014 decision in Utility Air Regulatory Group v. EPA. In its April 2015 order, the D.C. Circuit did not vacate EPA’s regulations concerning greenhouse gas permitting for stationary sources in their entirety. Instead, the D.C. Circuit ordered EPA to rescind the portions of the regulations that required permits based solely on a source’s greenhouse gas emissions, but left in place regulations that required sources subject to Prevention of Significant Deterioration (PSD) requirements due to other types of emissions (often referred to as “anyway” sources) to use best available control technology to control greenhouse gas emissions. Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. EPA, No. 15-637 (U.S. cert. denied Jan. 19, 2016): added to the “Challenges to Federal Action” slide.

Environmental Defense Center (EDC) and the Center for Biological Diversity (CBD) reached settlement agreements pursuant to which the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE) will prepare a programmatic environmental assessment (EA) to analyze the potential impacts of certain well-stimulation practices including hydraulic fracturing on the Pacific outer continental shelf. The settlement agreements resolved lawsuits brought by EDC and CBD in 2014 and 2015 in which they alleged that the agencies had failed to comply with the National Environmental Policy Act  (NEPA). EDC had cited greenhouse gas emissions as one environmental risk that should have been considered prior to approving drilling permit applications. The agreements required the programmatic EA to be completed by May 28, 2016. Pursuant to the agreements, BSEE must withhold future approvals of drilling permit applications involving well-stimulation techniques while the programmatic EA is prepared. BSEE must provide notice to EDC and CBD of well-stimulation applications it receives for an interim period while BSEE works to establish a system for making information about submitted applications publicly available. Environmental Defense Center v. Bureau of Safety & Environmental Enforcement, No. 2:14-cv-0928 (C.D. Cal. Jan. 29, 2016);Center for Biological Diversity v. Bureau of Ocean Energy Management, No. 2:15-cv-01189 (C.D. Cal. Jan. 29, 2016): added to the “Stop Government Action/NEPA” slide.

The federal district court for the District of Montana ordered the United States Office of Surface Mining, Reclamation and Enforcement (OSMRE) to prepare an updatedenvironmental assessment that considered the direct and indirect effects of a mining plan amendment for expansion of a surface coal mine in Montana. The court adopted the findings and recommendations issued by a magistrate judge in October 2015. The magistrate judge found that OSMRE’s finding of no significant impact (FONSI) was based on a six-year-old environmental assessment that expressly stated that it was not analyzing site-specific plans and contained no explanation of its conclusion that the amendment would have no significant impact on air quality, coal combustion, or reclamation. The court agreed with the magistrate judge that OSMRE had not taken a hard look at environmental impacts and also agreed with the magistrate judge that OSMRE’s failure to provide public notice of the FONSI was not harmless error. The district court deferred vacating the mining plan amendment for 240 days to give OSMRE time to complete the review. WildEarth Guardians v. U.S. Office of Surface Mining, Reclamation & Enforcement, Nos. 14-cv-13, 14-cv-103 (D. Mont. Jan. 21, 2016): added to the “Stop Government Action/NEPA” slide.

The federal district court for the District of Oregon allowed the National Association of Manufacturers (NAM), the American Fuel & Petrochemical Manufacturers (AFPM), and the American Petroleum Institute (API) to intervene as of right in a climate change lawsuit brought by a number of individual plaintiffs aged 19 or younger, an environmental organization, and a plaintiff identified as “Future Generations.” The plaintiffs alleged that the federal government’s actions—and failures to take action—deprived the plaintiffs of constitutionally protected rights by allowing dangerous levels of carbon dioxide to accumulate in the atmosphere. The court found that NAM, AFPM, and API had a “significantly protectable interest” because the relief sought by the plaintiffs would “change the very nature” of their business. The court also said that there was “no question” that the proposed intervenors’ interests would be impaired by any court-mandated regulation to eliminate emissions and that the intervenors’ presence was “necessary to fully and fairly put those issues before the court.” The court was not persuaded by the plaintiffs’ contention that the government was “essentially pro-fossil fuel industry” and would adequately represent the interests of NAM, AFPM, and API. Juliana v. United States, No. 6:15-cv-1517 (D. Or. Jan. 14, 2016): added to the “Common Law Claims” slide.

California Federal Court Found No NEPA Violations in Approval of Introduction of Vehicles to Downtown Fresno’s Fulton Mall

The federal district court for the Eastern District of California ruled against plaintiffs who challenged the approval of the reintroduction of vehicular traffic to the Fulton Mall area in downtown Fresno as part of a revitalization plan. The court upheld the finding of no significant impact for the project issued by the California Department of Transportation on behalf of the Federal Highway Administration, finding that the plaintiffs had failed to raise substantial questions as to whether the project would have significant impacts, including on greenhouse gas emissions. The court found that the environmental assessment considered “the potential traffic-generating effects of the project and accounted for expected future land uses.” The court also found no violations of Section 4(f) of the Department of Transportation Act. Bitters v. Federal Highway Administration, No. 1:14-cv-01646 (E.D. Cal. Jan. 12, 2016): added to the “Stop Government Action/NEPA” slide.

The federal district court for the District of Oregon found that citizen suit defendants who constructed a crude oil transloading terminal in Catskanie, Oregon, had not violated the Clean Air Act. Three environmental organizations had alleged that the terminal’s operation would result in emissions of air pollutants such as volatile organic compounds, nitrogen oxides, greenhouse gases, and hazardous air pollutants, and that the defendants should have obtained a Prevention of Significant Deterioration (PSD) permit. The court found that the plaintiffs had not proven by a preponderance of the evidence that the defendants miscalculated the terminal’s potential to emit and that the terminal’s emissions would exceed the threshold for obtaining a PSD permit.Northwest Environmental Defense Center v. Cascade Kelly Holdings LLC, d/b/a Columbia Pacific Biorefinery, No. 3:14-cv-01059 (D. Or. Dec. 30, 2015): added to the “Regulate Private Conduct” slide.

Maryland Court Upheld Public Service Commission’s Approval of Exelon-Pepco Merger Over Concerns About Impacts on Renewable Energy Market

The Maryland Circuit Court for Queen Anne’s County denied petitions by the Maryland Office of People’s Counsel, Sierra Club, Chesapeake Climate Action Network, and Public Citizen, Inc. for review of the Maryland Public Service Commission’s (PSC’s) approval of a merger between the utility and energy generating businesses, Exelon Corporation and Pepco Holdings, Inc. Among other things, the court found that the PSC had not acted arbitrarily or capriciously when it determined that the petitioners’ allegations that the merger could cause harm to distributed generation and renewable energy markets were speculative and not a basis for disapproval of the merger. At least two of the petitioners appealed the circuit court’s judgment. In re Maryland Office of People’s Counsel, No. 17-C-15-019974 (Md. Cir. Ct. Jan. 8, 2016; ): added to the “Stop Government Action/Other Statutes” slide.

FERC Denied Rehearing of Algonquin Natural Gas Pipeline Project Approval

The Federal Energy Regulatory Commission (FERC) denied requests for rehearing of its order approving an application by Algonquin Gas Transmission, LLC to construct and operate a natural gas pipeline project that would expand capacity in New York, Connecticut, Rhode Island, and Massachusetts. FERC found that two other pipeline projects were not cumulative, connected, or similar action and that its environmental review was not improperly segmented. FERC also rejected the contentions that it should have prepared a programmatic environmental impact statement for natural gas infrastructure projects in the Utica and Marcellus shale formations and that it should have considered the pipeline project’s indirect effects of induced shale gas production, including increased greenhouse gas emissions. FERC also found that the final environmental impact statement properly excluded the impacts of induced production from the Marcellus and Utica shale formations from its cumulative impact analysis. FERC also rejected arguments regarding inadequacies in its analysis of the impacts of greenhouse gas emissions from the pipeline project. In re Algonquin Gas Transmission, LLC, No. CP14-96 (FERC Jan. 28, 2016): added to the “Stop Government Action/NEPA” slide.

TransCanada Keystone Pipeline, LP and TC Oil Pipeline Operations Inc. (TransCanada) filed a complaint in the federal district court for the Southern District of Texas alleging that the president could not prohibit the development of the Keystone XL pipeline based on a belief that approval of the pipeline would undermine U.S. influence in international climate change negotiations. The lawsuit stemmed from the announcement on November 6, 2015 that Secretary of State John F. Kerry had denied a presidential permit to enable the construction of cross-border facilities for the proposed Keystone XL pipeline. The complaint said that the prohibition of the pipeline’s development was unauthorized by statute, was contrary to express congressional actions, and was an unprecedented exercise of unilateral presidential authority to prohibit domestic and foreign commerce transacted through a cross-border facility. TransCanada also contended that the actions unlawfully exceeded the executive’s constitutional powers and encroached on congressional power to regulate foreign and domestic commerce. The complaint alleged that United States’ review of the Keystone XL pipeline had concluded that the pipeline would not increase greenhouse gas emissions, but that the Secretary of State’s November 2015 determinations had “reasoned that the government must ‘prioritize actions that are not perceived as enabling further GHG emissions globally”’ and had relied on the “purely symbolic role a permit denial would play abroad” as the basis for denying the permit.TransCanada Keystone Pipeline, LP v. Kerry, No. 4:16-cv-00036 (S.D. Tex., filed Jan. 6, 2016): added to the “Challenges to Federal Action” slide.

TransCanada Filed Notice of $15 Billion NAFTA Claim

Canadian affiliates of TransCanada filed a notice of intent to submit a claim to arbitration pursuant to the North American Free Trade Agreement (NAFTA). They said they would seek damages of more than $15 billion. The notice asserted that environmental activists had succeeded in turning opposition to the Keystone XL Pipeline into a “litmus test” for politicians, and that the delay in considering the presidential permit and the ultimate denial of the permit were “politically-driven, directly contrary to the findings of the [Obama] Administration’s own studies, and not based on the merits of Keystone’s application.” The notice cited core investment protections that the United States government committed to provide under NAFTA, including national treatment (Article 1102), most-favored-nation treatment (Article 1103), treatment in accordance with international law (Article 1105), and protection against uncompensated expropriations (Article 1110). The notice asserted that the Obama administration’s actions breached its obligations to provide these protections.Notice of Intent to Submit a Claim to Arbitration Under Chapter 11 of the North American Free Trade Agreement, TransCanada Corp. v. Government of the United States of America (Jan. 6, 2016).

Seven petitioners representing the ethanol and biofuel industry asked the D.C. Circuit Court of Appeals to review the final renewable fuel standard rule published in December 2015. The American Fuel & Petrochemical Manufacturers sought leave to intervene as a respondent, citing the rule’s direct regulation of its members and asserting that EPA could not adequately represent its membership’s interests. In the final rule, EPA established percentage standards for blending cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel into motor vehicle gasoline and diesel produced and imported in 2014, 2015, and 2016. Citing “real-world challenges,” the rule set standards that are lower than would be required to meet statutory renewable fuel targets set in the Energy Independence and Security Act of 2007. EPA said it was making use of the statute’s waiver provisions, and also noted that, after failing to meet statutory deadlines for issuing the renewable fuel standards for multiple years, it was returning to the statutory timeline. EPA said that the rule’s final volume requirements exceeded actual renewable fuel use in 2015 and that the required volumes would not result in stagnation in the growth of renewable fuel use. Americans for Clean Energy v. EPA, No. 16-01005 (D.C. Cir., filed Jan. 8, 2016): added to the “Challenges to Federal Action” slide.

On January 29, 2016, WildEarth Guardians and federal defendants filed a joint motion seeking a stay of proceedings in an action where WildEarth Guardians charged that the federal government improperly approved mining plans for the development of federally owned coal in Colorado, New Mexico, and Wyoming. The motion sought a stay until April 1, 2016 so that the parties can conduct settlement negotiations. The motion indicated that the parties would meet in person by March 4, 2016 for settlement discussions after exchanging written term sheets, and then notify the courtwithin two weeks of the meeting regarding whether they had been able to reach a settlement. A motion to sever the action and transfer claims relevant to the New Mexico and Wyoming to the federal courts in those states remained pending, and wasopposed by WildEarth Guardians. WildEarth Guardians v. Jewell, No. 1:15-cv-02026 (D. Colo. Jan. 29, 2016): added to the “Stop Government Action/NEPA” slide.

Four environmental groups filed a complaint in the federal district court for the Central District of California to challenge the Federal Highway Administration’s (FHWA’s) approval of a highway project in Riverside County in California. The plaintiffs alleged that FHWA failed to disclose and evaluate environmental impacts, including increased greenhouse gas emissions. The plaintiffs said that FHWA should have considered greenhouse gas emissions from “all sources,” including building materials, truck hauls, and water trucks. Plaintiffs alleged violations of NEPA, as well as violations of Section 4(f) of the Department of Transportation Act because the project did not avoid certain parks and schools. Center for Biological Diversity v. Federal Highway Administration, No. 5:16-cv-00133 (C.D. Cal., filed Jan. 22, 2016): added to the “Stop Government Action/NEPA” slide.

Three Idaho environmental groups filed a complaint in the federal district court for the District of Idaho alleging that the U.S. Forest Service violated NEPA, the National Forest Management Act, and the Forest Service Organic Act when it approved a mine exploration project in the Boise National Forest. The plaintiffs faulted the Forest Service’s NEPA review for failing to consider the impacts of the project on Sacajawea’s bitterroot. The complaint alleged that the project site was home to the world’s largest populations of this flower and that the flower’s long-term survival was at risk due to climate change and other threats. Idaho Conservation League v. U.S. Forest Service, No. 16-cv-25 (D. Idaho, filed Jan. 15, 2016): added to the “Stop Government Action/NEPA” slide.

The federal district court for the Northern District of West Virginia set July 19, 2016 as the trial date for the lawsuit brought by Murray Energy Corporation and its affiliates (Murray Energy) in which they charge EPA with failing to comply with its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. On January 22, 2016, Murray Energy moved to modify the trial date to avoid a scheduling conflict with the Republican National Convention. The motion said that Robert E. Murray, Murray Energy Corporation’s chief executive officer and board chairman, who is a plaintiffs’ witness and client representative, was a member of the convention’s host committee and had commitments requiring him to be at the convention. OnFebruary 1, 2016, Murray Energy withdrew its motion to modify the trial date, saying that Mr. Murray had been able to resolve the conflict. Murray Energy Corp. v. EPA, No. 5:14-CV-00039 (N.D. W. Va. order Dec. 23, 2015; motion to modify trial date Jan. 22, 2016; withdrawal of motion to modify trial date Feb. 1, 2016): added to the “Challenges to Federal Action” slide.

After the federal district court for the District of Columbia dismissed a lawsuit that asked the court to compel EPA to respond to a petition asking it to regulate ammonia as a criteria pollutant under the Clean Air Act, EPA filed a notice of decision in a related case, asking that it also be dismissed. In the related case, plaintiffs have asked the court to require EPA to respond to a 2009 petition asking it to regulate concentrated animal feeding operations (CAFOs) as a source of air pollution under the Clean Air Act. The plaintiffs alleged that air pollution from CAFOs endangers public health and welfare, including by contributing to climate change due to their emissions of methane and nitrous oxide. In its notice of decision, EPA said that the court’s decision in the first case addressed the same legal issues raised in EPA’s motion to dismiss in this case. In particular, EPA said that, as in the other lawsuit, plaintiffs had failed to provide statutorily-required pre-suit notice. Humane Society of the United States v. McCarthy, No. 1:15-cv-00141 (D.D.C. Dec. 2, 2015): added to the “Force Government to Act/Clean Air Act” slide.

Air Regulator and California Attorney General Joined City and County of Los Angeles in Public Nuisance Actions Stemming from Leak at Southern California Gas Storage Facility

On January 26, 2016, the South Coast Air Quality Management District (SCAQMD) commenced a public nuisance action against Southern California Gas Company (SoCalGas), the owner and operator of the Aliso Canyon Storage Facility, a natural gas storage facility at which a leak was discovered in October 2015. The complaint alleged that odors and adverse health effects had forced people living in the communities near the facility to leave their homes, and that the leak had also contributed to global warming and increased the risks of harm from global warming by emitting billions of cubic feet of methane into the atmosphere. The lawsuit asserted statutory public nuisance claims, claims of statutory violations that caused actual injury, and claims of negligent and knowing emission of air contaminants in violation of statutes. The complaint sought civil penalties. The SCAQMD action came after the City Attorney for the City of Los Angeles filed an action on behalf of the state in December 2015. The County Counsel joined that action in January 2016, and inFebruary 2016, the California Attorney General sought to join the action both in her independent capacity and on behalf of the California Air Resources Board. The causes of action in this action included public nuisance and violation of California’s Unfair Competition Law. The complaint alleged that the release of methane would have detrimental impacts on the state, city, county, environment, and economy due to the exacerbation of climate change impacts. The alleged unfair business practices were also grounded in part in the release of significant quantities of a potent greenhouse gas. The action sought injunctive relief and civil penalties. California ex rel. South Coast Air Quality Management District v. Southern California Gas Co., No. BC608322 (Cal. Super. Ct., filed Jan. 26, 2016); California v. Southern California Gas Co., No. BC602973 (Cal. Super. Ct., filed Dec. 7, 2015; first amended complaint Jan. 8, 2016; stipulation and second amended complaint Feb. 1, 2016): added to the “Regulate Private Conduct” slide.

WildEarth Guardians Asked BLM to Suspend New Oil and Gas Leasing to Prepare Environmental Review of Climate and Non-Climate Impacts

The Environmental Law Clinic at the UC Irvine School of Law filed a petition with the United States Bureau of Land Management (BLM) on behalf of WildEarth Guardians asking BLM to evaluate the direct, indirect, and cumulative impacts on climate change of its oil and gas leasing program. WildEarth Guardians asked BLM to prepare a programmatic environmental impact statement (PEIS) to look at these climate impacts, and also at non-climate impacts associated with oil and gas development. WildEarth Guardians requested a moratorium on new oil and gas leasing and approvals of applications for permits to drill pending preparation of the PEIS. The organization also asked that the Department of the Interior amend its NEPA regulations to incorporate the Council on Environmental Quality’s 2014 revised draft guidance for considering greenhouse gas emissions and climate change in NEPA review. WildEarth Guardians, Petition Requesting a Programmatic Environmental Impact Statement Addressing the Bureau of Land Management’s Oil and Gas Leasing Program and Formal Adoption of the Council on Environmental Quality’s Guidance for Greenhouse Gas Emissions and Climate Change Impacts (Jan. 20, 2016): added to the “Force Government Action/NEPA” slide.

Sierra Club Asked FERC to Reopen Environmental Review of Louisiana LNG Export Project

Sierra Club filed a request for rehearing with the Federal Energy Regulatory Commission (FERC) concerning FERC’s authorization of the siting, construction, and operation of natural gas liquefaction equipment, liquefied natural gas (LNG) export facilities, and related pipeline infrastructure at an existing LNG import facility in Louisiana. Sierra Club asked FERC to withdraw the final environmental impact statement (FEIS) for the proposed projects and to conduct additional environmental review, including review of indirect effects related to supply and consumption of natural gas, consideration of the impacts of greenhouse gas emissions, and review of cumulative impacts of the approved projects with other approved and proposed LNG export projects. In re Trunkline Gas Co., Docket Nos. CP14-119, CP14-120, CP14-122, PF12-8 (FERC, filed Jan. 19, 2016): added to the “Stop Government Action/NEPA” slide.

Here is a recent addition to the Non-U.S. Climate Litigation Chart.

Separation of Powers Dispute Touched on Possible Linkage of EU, Australian Emissions Trading Schemes

This separation of powers case arose from a decision of the EU Council relating to negotiations that the EU Commission would undertake with Australia regarding possible linkage of those jurisdictions’ emissions trading schemes. The Council’s May 2013 decision set out procedures for the negotiation, detailed negotiating positions, and designated the Council’s Working Party on the Environment to assist the Commission throughout the negotiation. The Commission challenged that decision on the grounds that it amounted to the Council assuming authority not granted by the controlling EU treaties, chiefly article 218(2)–(4) of the Treaty on the Functioning of the EU. The EU Parliament and a number of member governments intervened in the case—the Parliament in support of the Commission, most of the national governments in support of the Council. The Court, acknowledging that this was a case of first impression but also the latest in a series of disputes over the scope of authority available to EU bodies, substantially agreed with the Commission and ordered the annulment of several portions of the Council’s May 2013 decision, thereby giving the Commission a freer hand in conducting negotiations with Australia. European Commission v. Council of the European Union (Re EU/Australia Emissions Trading Scheme) (European Parliament and others, intervening) [2016] 1 C.M.L.R. 11

Law Student Sued New Zealand Government for Failure to Undertake More Aggressive Climate Mitigation Efforts

Sarah Thomson, a New Zealand law student, has filed a Statement of Claim against New Zealand’s Minister of Climate Change Issues alleging that the Minister had failed in several respects regarding the setting of greenhouse gas emissions reduction targets required by New Zealand’s Climate Change Response Act of 2002. That Act implements New Zealand’s responsibilities as a ratifying Annex I member of the United Nations Framework Convention on Climate Change (UNFCCC). It requires the Minister to set an emissions reduction target in keeping with the statements of the Intergovernmental Panel on Climate Change (IPCC), and to revise that target as the IPCC issues updated findings. In March 2011, pursuant to the 2002 Act, the Minister set a target of 50% reduction from 1990 emissions levels by 2050. The Minister did not revise that target following the 2014 issuance of the IPCC’s Fifth Assessment Report. In July 2015, in advance of the 21st Conference of the Parties to the UNFCCC in Paris, the Minister submitted New Zealand’s intended nationally determined contribution (INDC) consistent with a “provisional target” of only 30% reduction from 2005 levels by 2030. As Thomson’s Statement of Claim notes, “this equates to a reduction of 11% below New Zealand’s 1990 emission levels by 2030,” and thus “will not, if adopted by other developed countries in combination with appropriate targets set by developing countries, stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” For these reasons, Thomson alleges that the Minister violated the 2002 Act. The case is ongoing. Thomson v. Minister for Climate Change Issues, High Court, Wellington, CIV-2015-__, filed 10 Nov. 2015 (N.Z.)

Jessica Wentz

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