Climate Litigation Chart Updates – December 2016

Posted on December 12th, 2016 by Jessica Wentz

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.



Oregon Federal Court Said Young People Could Pursue Constitutional Claims to Compel Federal Climate Action

In an action seeking to compel federal action to reduce carbon dioxide emissions, the federal district court for the District of Oregon denied motions to dismiss public trust and due process claims against the United States and federal officials and agencies. The plaintiffs—young people who alleged that excessive carbon emissions were threatening their future, a non-profit group, and “Future Generations” represented by a climate scientist—alleged that the defendants had known for decades of the dangers of carbon dioxide pollution and had nonetheless take actions that increased emissions. The court held that the action did not raise a nonjusticiable political question because it asked the court to determine whether defendants had violated the plaintiffs’ constitutional rights, a question “squarely within the purview of the judiciary.” The court also concluded that the plaintiffs had adequately alleged standing to sue. In determining that the plaintiffs had adequately alleged a due process claim, the court said that the plaintiffs had asserted a fundamental right “to a climate system capable of sustaining human life” and that the plaintiffs’ allegations regarding the defendants’ role in creating the climate crisis, the defendants’ knowledge of the consequences of their actions, and the defendants’ deliberate indifference in failing to act to prevent the harm were sufficient to state a “danger-creation” due process claim. In finding that the plaintiffs had adequately stated a public trust claim, the court said that it was not necessary to determine whether the atmosphere was a public trust asset because the plaintiffs had also alleged the claim in connection with the territorial sea, to which the Supreme Court had said “[t]ime and again” that the public trust doctrine applies. The court also rejected the arguments that the public trust doctrine does not apply to the federal government and that federal environmental statutes displaced public trust claims. The court also was not persuaded that plaintiffs lacked a cause of action to enforce public trust obligations, concluding that the public trust claims were substantive due process claims and that the Fifth Amendment provided a right of action. Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Nov. 10, 2016).


D.C. Circuit Stayed Challenge to Aircraft Endangerment Finding to Permit Attempt at Administrative Resolution of Biogenic Issue

The D.C. Circuit Court of Appeals stayed a proceeding brought by Biogenic CO2 Coalition challenging the United States Environmental Protection Agency’s (EPA’s) endangerment finding for greenhouse gas emissions from commercial aircraft. In a consent motion requesting that the case be held in abeyance, the Coalition said that a stay would allow it to attempt to administratively resolve discrete issues with EPA concerning regulation of biogenic emissions. The Biogenic CO2 Coalition represents a cross-section of agricultural stakeholder interests, including producers of biomass feedstocks. The Coalition objects to EPA’s failure to distinguish between biogenic and fossil fuel emissions, and has challenged the Clean Power Plan and the new source performance standards for greenhouse gas emissions on similar grounds. In those two proceedings, the D.C. Circuit has agreed to consider biogenic issues separately from other claims, and is also holding the biogenic claims in abeyance. Environmental Defense Fund moved for leave to intervene on EPA’s behalf in the proceeding, as did Center for Biological Diversity, Friends of the Earth, and Sierra Club. Biogenic CO2 Coalition v. EPA, No. 16-1358 (D.C. Cir. Nov. 16, 2016).

D.C. Circuit Denied Another LNG Facility NEPA Challenge

In a two-page unpublished judgment, the D.C. Circuit Court of Appeals denied Sierra Club’s petition for review challenging the Federal Energy Regulatory Commission’s (FERC’s) environmental review for a liquefied natural gas (LNG) project in Corpus Christi, Texas. The court said that it had explicitly rejected Sierra Club’s arguments regarding consideration of indirect and cumulative effects in its earlier opinion in Sierra Club v. FERC, No. 14-1275 (D.C. Cir. 2016), another challenge by Sierra Club to the National Environmental Policy Act (NEPA) review for an LNG project. The court also said it had already rejected Sierra Club’s arguments regarding the social cost of carbon and regarding use of projects’ consistency with federal greenhouse gas emission reduction goals as a tool. Sierra Club v. Federal Energy Regulatory Commission, No. 15-1133 (D.C. Cir. Nov. 4, 2016).

Texas Federal Court Allowed Exxon to Add New York Attorney General as Defendant in Challenge to Climate Change Investigations and Ordered Attorneys General to Appear in Texas for Depositions

On November 17, 2016, the federal district court for the Northern District of Texas ordered Massachusetts Attorney General Maura Healey to appear for a deposition in Texas on December 13 in Exxon Mobil Corporation’s action against Healey and New York Attorney General Eric Schneiderman challenging the states’ climate change investigations. A week earlier, the court granted Exxon leave to add Schneiderman as a defendant over Healey’s objections; Exxon’s amended complaint also added a conspiracy claim and a claim that federal law requiring disclosures to investors preempted the states’ investigations. The court’s deposition order also advised that Schneiderman should be available for deposition in Texas on December 13 but said that it would wait to enter an order until after Schneiderman filed an answer to the first amended complaint. On November 26, Healey filed a motion to vacate both the court’s deposition order and an earlier jurisdictional discovery order in which the court expressed concern that Healey had commenced the Massachusetts investigation in “bad faith,” based in part on Healey’s participation in a press conference with other state attorneys general and climate change advocates. Healey also asked the court to stay discovery until it had ruled on Healey’s motion to dismiss the amended complaint, which was filed on November 28, and to issue a protective order prohibiting Exxon from taking her deposition. Healey also said the court should defer all activity in the case while a Massachusetts Superior Court considered Exxon’s motion to set aside the civil investigative demand (CID). Healey argued that the court had abused its discretion by ordering discovery and issuing the deposition order where the court lacked personal jurisdiction, the action was unripe, and venue was improper. In addition, Healey argued that circumstances did not warrant deposition of a top executive department official or discovery in a collateral action challenging a lawful CID, and that the court’s concerns regarding Healey’s “bad faith” in commencing the Exxon climate change investigation would not justify discovery because the concerns would not trigger the bad faith exception to abstention under the Younger doctrine. Healey also argued that it was common for state attorneys general to coordinate and to make public statements regarding coordinated investigations. Exxon opposed Healey’s motion to vacate the deposition and discovery orders, arguing that the motion was improper and that the court had acted within its discretion to order jurisdictional discovery and Healey’s deposition. In other developments in the case, Exxon issued a subpoena to Union of Concerned Scientists, seeking documents and other materials related to communications with state attorneys general, including materials related to the press conference involving the state attorneys general, and certain materials related to other events regarding climate change litigation against fossil fuel companies, to political fundraising, and to Exxon and other fossil fuel companies. Exxon Mobil Corp. v. Schneiderman, No. 4:16-cv-00469-K (N.D. Tex.).

Federal Court Allowed Oil and Gas Trade Groups to Intervene in NEPA Challenge to Leases

The federal district court for the District of Columbia allowed three oil and gas trade associations to intervene in a challenge to federal approvals of oil and gas leases on public lands in Colorado, Utah, and Wyoming. WildEarth Guardians and Physicians for Social Responsibility argued that the federal defendants had not complied with their obligations under the National Environmental Policy Act (NEPA) in approving the leases because the environmental review had not analyzed direct, indirect, and cumulative climate effects associated with the specific leasing authorizations challenged in this case as well as with federal oil and gas leasing at a programmatic level. The court said that the trade associations were entitled to intervene as of right because their members, who held leases challenged in the litigation, had legally protectable interests that might be impaired by the litigation. The court also said that the federal defendants did not adequately represent the intervenors’ interests. The court declined to limit the associations’ participation by requiring joint briefing or by confining their arguments to the existing claims. WildEarth Guardians v. Jewell, No. 16-1724 (D.D.C. Nov. 23, 2016).

Washington Federal Court Said Biological Opinion Had to Consider Climate Change Effects

The federal district court for the Eastern District of Washington ruled that a biological opinion prepared pursuant to the Endangered Species Act to consider the effects a fish hatchery’s operations would have on endangered salmon and chinook was arbitrary and capricious because it did not adequately consider climate change effects. The court said that “[t]he best available science indicates that climate change will affect stream flow and water conditions throughout the Northwest” and that the lack of a model or study specifically addressing local climate change effects did not permit the National Marine Fisheries Service (NMFS) to ignore this factor. The court said that NMFS had included “no discussion whatsoever” of the potential effects of climate change on the hatchery’s future operations and water use, and that it was not sufficient for NMFS to say that the local area at issue was less prone to climate change effects than other areas in the region. The court rejected other arguments regarding shortcomings in the biological opinion and related incidental take statement. Wild Fish Conservancy v. Irving, No. 2:14-CV-0306-SMJ (E.D. Wash. Nov. 22, 2016).

California Appellate Court Said Environmental Review for Basketball Arena Did Not Need to Quantify Greenhouse Gas Emissions

The California Court of Appeal affirmed the denial of two petitions that challenged the environmental review and permitting for an arena for the National Basketball Association’s Golden State Warriors and associated development in San Francisco. Among the arguments rejected by the appellate court was the petitioners’ contention that the environmental review was inadequate due to its “exclusive reliance” on the project’s compliance with San Francisco’s greenhouse gas strategy to determine that the project would not have a significant effect on greenhouse gas emissions. The court said that guidelines issued pursuant to the California Environmental Quality Act (CEQA) explicitly authorized reliance on performance-based standards such as the greenhouse gas strategy and that the environmental impact report was not required to quantify expected emissions and the amount by which those emissions would be reduced by implementation of the greenhouse gas strategy and mitigation measures. The court also noted that in Center for Biological Diversity v. Department of Fish & Wildlife, No. S217763 (2015), the California Supreme Court had “expressed approval for a methodology that uses consistency with greenhouse gas reduction plans as a significance criterion for project emissions under CEQA.” The appellate court said that, contrary to the petitioners’ argument, the Supreme Court had not held that quantification was necessary in every case. Mission Bay Alliance v. Office of Community Investment and Infrastructure, No. A148865 (Cal. Ct. App. Nov. 29, 2016).

Court of Appeals Followed California Supreme Court’s Lead and Reversed Trial Court Decision That Upheld Greenhouse Gas Significance Analysis for Newhall Ranch

After the California Supreme Court ruled that CEQA findings regarding the significance of greenhouse gas emissions associated with the Newhall Ranch development in Los Angeles County were not supported by substantial evidence, the California Court of Appeal reiterated that conclusion in another case involving Newhall Ranch. In an unpublished opinion, the court cited the California Supreme Court’s opinion in Center for Biological Diversity v. Department of Fish and Wildlife, No. S217763 (2015), and noted that the parties agreed that the greenhouse gas emissions discussion in the instant case paralleled the discussion that the Supreme Court found lacking. The court therefore reversed the portions of a trial court’s ruling that upheld the Los Angeles County Board of Supervisors’ conclusion that the development’s greenhouse gas emissions would not have a significant impact. Friends of the Santa Clara River v. County of Los Angeles, No. B256125 (Cal. Ct. App. Nov. 3, 2016).

New York Court Said Attorney General’s Response to Competitive Enterprise Institute Request Did Not Comply with Freedom of Information Law

A New York Supreme Court agreed with the Competitive Enterprise Institute (CEI) that the New York Attorney General had not complied with its obligations under the Freedom of Information Law (FOIL) in response to CEI’s request for common interest agreements with private parties and other state attorneys general regarding climate change investigations. The court indicated that the publication by a third party of a common interest agreement between state attorneys general did not moot CEI’s claims, and ordered the New York Attorney General to provide more detail regarding its search for common interest agreements involving non-state parties. The court also said that the New York Attorney General had the burden of demonstrating that FOIL exemptions applied to any responsive records that it determined were not subject to disclosure. The court also ruled that CEI was entitled to attorney fees. Competitive Enterprise Institute v. Attorney General of New York, No. 5050-16 (N.Y. Sup. Ct. Nov. 21, 2016).

Delaware Court Said It Could Not Yet Resolve Question of Electric Consumers’ Standing to Challenge RGGI Regulations

The Delaware Superior Court vacated its denial of a motion to amend a complaint challenging Delaware’s regulations implementing the Regional Greenhouse Gas Initiative to correct the middle initial of a plaintiff. The court reversed its conclusion that amendment would be futile after the plaintiff (with the corrected initial) along with another plaintiff submitted affidavits indicating that they were personally responsible for payment of electric bills. (The court had previously ruled that the plaintiff would not have had standing as a stakeholder in a company that was a commercial purchaser of electricity.) Although the court allowed submission of the affidavits and amendment of the complaint, it said that the plaintiffs had not established standing and that discovery might show they had not paid electric bills during pertinent times or had not incurred increased costs. The court also denied the defendants’ motion for summary judgment as to all the plaintiffs, indicating that it needed to hear the defendants’ expert’s testimony and cross-examination as to financial benefits received by electric consumers. Stevenson v. Delaware Department of Natural Resources & Environmental Control, No. S13C-12-025 RFS (Del. Super. Ct. Nov. 7, 2016).

FERC Reaffirmed Limitations on Scope of NEPA Review for Louisiana LNG Facility

FERC denied rehearing of its approvals for a liquefied natural gas (LNG) export terminal near Lake Charles, Louisiana, and related pipeline and compression facilities. FERC reaffirmed its conclusion that effects related to natural gas production, gas-to-coal switching, and foreign consumption of natural gas were not causally related to its approval of the Louisiana facilities, and stated that recent D.C. Circuit decisions concerning NEPA reviews for LNG facilities supported this determination. FERC said that even if such indirect effects, including greenhouse gas emissions, were causally related, they were not reasonably foreseeable. FERC also rejected the argument that it was required to consider the effect that the project would have together with other past, present, and future LNG export projects throughout the entire nation. In re Magnolia LNG, LLC, Nos. CP14-347-001, CP14-511-001 (FERC Nov. 23, 2016).


Supreme Court Review Sought of Polar Bear Critical Habitat Designation

Two petitions for writ of certiorari were filed in the United States Supreme Court seeking review of the Ninth Circuit Court of Appeals decision upholding the designation of critical habitat for the polar bear. The State of Alaska, Alaska native communities, Alaska Oil and Gas Association, and American Petroleum Institute asked the Court to take up the question of whether the Ninth Circuit’s “exceedingly permissive standard” for critical habitat designation allowed it to designate “huge geographic areas,” much of which allegedly failed to meet statutory criteria, as critical habitat. Alaska Oil and Gas Association and American Petroleum Institute told the Court that the Ninth Circuit’s “exceptionally lax and inexact standard” for the specificity with which the U.S. Fish and Wildlife Service (FWS) must make critical habitat designations allowed FWS to impose “sweeping designations” without regard to whether all areas were critical or even helpful to species conservation. Alaska and Alaska native communities told the court that FWS’s “hugely overbroad approach” threatened the viability of “longstanding, Native humancommunities.” State of Alaska v. Jewell, No. 16-596 (U.S. Nov. 4, 2016); Alaska Oil & Gas Association v. Jewell, No. 16-610 (U.S. Nov. 4, 2016).

Waste Management Industry Filed Challenge to EPA Emissions Controls for Landfills

The National Waste & Recycling Association, the Solid Waste Association of North America, and three waste management companies filed a petition for review in the D.C. Circuit Court of Appeals challenging the United States Environmental Protection Agency’s (EPA’s) final rule establishing emission guidelines for municipal solid waste landfills. EPA published the final rule on August 29, 2016. The rule lowered the emissions threshold at which landfills—which are a significant source of methane—must install controls. Utility Air Regulatory Group also filed a petition for review challenging the emission guidelines. National Waste & Recycling Association v. EPA, No. 16-1371 (D.C. Cir., filed Oct. 27, 2016); Utility Air Regulatory Group v. EPA, No. 16-1374 (D.C. Cir., filed Oct. 28, 2016).

Former Exxon Employee Filed Class Action Alleging Company and Officers Breached Fiduciary Duties to Retirement Plan Investors

A former employee of Exxon Mobil Corporation filed a class action lawsuit on behalf of himself and other current and former Exxon employees who participated in an Exxon retirement savings plan and invested in Exxon stock between November 1, 2015 and October 28, 2016. The complaint asserted claims under the Employee Retirement Income Security Act (ERISA) that Exxon and senior Exxon officials breached their fiduciary duties to participants in the Plan because they knew or should have known that Exxon’s stock price was artificially inflated, making it an imprudent investment. The complaint alleged that the stock price was artificially inflated because Exxon failed to disclose that internally generated reports concerning climate change recognized the environmental risks caused by global warming and climate change; that due to risk associated with climate change Exxon would not be able to extract existing hydrocarbon reserves it claimed to have; and that Exxon had used an inaccurate price of carbon to calculate the value of certain oil and gas prospects. Fentress v. Exxon Mobil Corp., No. 4:16-cv-03484 (S.D. Tex., filed Nov. 23, 2016).

Exxon Investor Filed Securities Class Action for Failure to Disclose Climate Risks

A man who invested in Exxon stock during 2016 filed a securities fraud class action against Exxon and three Exxon officers in the federal court for the Northern District of Texas. The action was filed on behalf of purchasers of Exxon common stock between February 19, 2016 and October 27, 2016. The complaint alleged that Exxon’s public statements during that period were materially false and misleading because they failed to disclose that internally generated reports concerning climate change recognized the environmental risks caused by global warming and climate change; that due to risk associated with climate change Exxon would not be able to extract existing hydrocarbon reserves it claimed to have; and that Exxon had used an inaccurate price of carbon to calculate the value of certain oil and gas prospects. The complaint alleged that as a result of positive statements Exxon made during the class period, the common stock price was artificially inflated, and that Exxon’s release of its third quarter financial results on October 28, 2016, in which it disclosed it might have to write down 20% of its oil and gas assets, resulted in the stock price falling by more than $2 per share. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-3111 (N.D. Tex., filed Nov. 7, 2016).

States, Oil and Gas Groups Challenged BLM Methane Rule for Oil and Gas Operations

Two petitions were filed in the federal district court for the District of Wyoming challenging the United States Bureau of Land Management’s (BLM) final rule concerning methane emissions from oil and gas operations on federal and tribal lands. BLM said that the rule would cut flaring in half, curbing waste of public resources and reducing harmful methane emissions. One petition was filed by Western Energy Alliance and Independent Petroleum Association of America; the other was filed by Wyoming and Montana. The states called the regulations “a blatant attempt by a land management agency to impose air quality regulations on existing oil and gas operations under the guise of waste prevention” and charged that BLM did not have authority to regulate. The states asserted that the regulations’ air quality controls conflicted with those established by EPA and the states under the Clean Air Act, and that the rule unlawfully attempted to take over regulation of state leases when state and federal tracts were combined through communitization agreements. The oil and gas trade groups also asserted that BLM was without authority to regulate air quality and also argued that the rule placed arbitrary limits on flaring; relied on flawed scientific, engineering, and economic assumptions and methodologies; improperly relied on EPA air quality rules; and conflicted with or usurped the primary jurisdiction of state and tribal governments. North Dakota has intervened in the state proceeding. Both sets of petitioners have asked the court for a preliminary injunction, and the court has scheduled a hearing on the requests for January 6, 2017. The states argued that they would suffer “immediate sovereign and economic harm” should the rule go into effect and that BLM would experience no actual harm if the court issued a preliminary injunction. The states argued that an injunction was in the public interest because it would prevent an illegal program from taking effect and because the injunction would not harm the interest in a clean environment or cause waste of federal minerals since the states were already taking action to control emissions. Wyoming v. United States Department of Interior, No. 2:16-cv-00285 (D. Wyo., filed Nov. 18, 2016); Western Energy Alliance v. Jewell, No. 2:16-cv-00280-MLC (D. Wyo., filed Nov. 15, 2016).

After EPA Proposed Two-Year Consultation on Jobs Evaluation, Murray Energy Objected to Delay and Asked Court to Enjoin Rulemaking

On October 31, 2016, EPA submitted its plan for complying with the order by the federal district court for the Northern District of West Virginia requiring EPA to conduct evaluations pursuant to Section 321(a) of the Clean Air Act of loss or shifts in employment that result from implementation of the Clean Air Act. EPA said it would first consult with its Science Advisory Board (Board) regarding the analytic tools and methodologies for the evaluations, a process that EPA estimated could take more than two years. EPA said it would then take approximately 90 days to consider the Board’s advice and set an evaluation schedule. Murray Energy Corporation and the other plaintiffs objected to EPA’s plan, describing it as “yet another in a long line of tactics to avoid timely recognition of the job losses caused by EPA’s war on coal.” The plaintiffs asked the court to order EPA to promptly comply with Section 321(a), to evaluate and report to the court “the job loss and shifts that may be attributable to EPA’s war on coal”; and to cease publication of new proposed and final rules “in furtherance of the war on coal” until it complied. Murray Energy Corp. v. McCarthy, No. 5:14-cv-39 (N.D. W. Va. compliance plan Oct. 31, 2016; plaintiffs’ response Nov. 14, 2016).

Groups Argued That Coal Mine Expansion Environmental Review Should Have Used Social Cost of Carbon

The plaintiffs in an action challenging federal approvals that would permit a Montana coal mine to expand by 7,000 acres filed a brief  in the federal district court for the District of Montana setting forth the shortcomings in the federal agencies’ NEPA review. The plaintiffs’ arguments included that the environmental assessment (EA) for expansion had failed to adequately consider the indirect and cumulative impacts of greenhouse gas emissions because, while the EA quantified the life-cycle emissions from mining, shipping, and burning the coal, it did not “evaluate” the impact. The plaintiffs argued that the defendants should have used the federal social cost of carbon to fulfill the obligation to evaluate the impact. The plaintiffs also cited the “highly uncertain and highly controversial” nature of air pollution emissions, including greenhouse gas emissions, as one factor warranting preparation of an environmental impact statement. Montana Elders for a Livable Tomorrow v. U.S. Office of Surface Mining, No. 9:15-cv-106-DWM (D. Mont. Nov. 4, 2016).

Oil and Gas Trade Association Opposed Intervention by Conservation Groups in Suit to Compel Quarterly Federal Mineral Lease Sales

Western Energy Alliance opposed intervention by nine conservation groups in its action in the federal district court for the District of New Mexico seeking to compel the United States Bureau of Land Management to hold quarterly federal mineral sales. Western Energy Alliance said that the groups’ request to intervene was premised on “straw man” arguments that the Alliance had not raised in the action. The Alliance said its action was focused on the narrow issue of the BLM’s ministerial obligation under the Mineral Leasing Act to conduct oil and gas lease sales at least quarterly whenever eligible lands are available, and that it was not seeking to curtail federal discretion over leasing or to limit environmental review. The Alliance said that the lawsuit therefore did not implicate an interest of the advocacy groups and that the federal defendants would adequately represent the groups’ position, and that the groups therefore were not entitled to intervene as of right. The Alliance also urged the court not to grant permissive intervention. Western Energy Alliance v. Jewell, No. 1:16-cv-00912 (D.N.M. Nov. 2, 2016).

Environmental Organization and Organic Farm Challenged New York’s Plan to Subsidize Nuclear Plants

Hudson River Sloop Clearwater, Inc. and a commercial organic farm filed a proceeding in New York Supreme Court challenging what the petitioners characterized as the New York Public Service Commission’s (PSC’s) “bailout program” for nuclear power plants in New York. The action challenged by the petitioners was the Tier 3 Zero-Emissions Credit portion of the PSC’s Order Adopting a Clean Energy Standard, which will require load-serving entities to purchase zero-emissions credits that a State entity will purchase from the qualifying nuclear facilities based on a formula for the social cost of carbon. The petitioners contended that the PSC’s action violated the New York Public Service Law, including by using the social-cost-of-carbon metric to determine the nuclear subsidy. The petitioners also claimed that the PSC had committed procedural violations and had violated the State Environmental Quality Review Act. The petitioners asserted that the PSC had not used words with “common and everyday meanings” in violation of the State Administrative Procedure Act because nuclear energy “is not, nor has ever been zero-emissions” since it “routinely emits greenhouse gases and radioactive and thermal emissions.” The petitioners also said that the PSC had relied on the social cost of carbon in “an unclear, incoherent and inconsistent manner.” Hudson River Sloop Clearwater, Inc. v. New York State Public Service Commission, No. __ (N.Y. Sup. Ct., filed Nov. 30, 2016).

New York Attorney General Asked State Court to Order Exxon’s Production of Documents in Climate Change Investigation

In New York Supreme Court, the New York Attorney General moved to compel Exxon Mobil Corporation to respond to its November 2015 subpoena seeking climate change-related documents pursuant to New York anti-fraud laws. The attorney general said that approximately five months prior to its motion it had asked Exxon to prioritize production of documents concerning the company’s valuation, accounting, and reporting of its assets and liabilities, and the impact of climate change on those processes, but that Exxon had not cooperated with this request. The attorney general told the court that despite acknowledging in New York court that the subpoena was valid, Exxon was “effectively moving to quash the subpoena” in federal court in Texas. The attorney general attributed Exxon’s delay in responding to its prioritization request as an effort to “forestall judicial intervention” in New York until it obtained an injunction from the federal court. On November 21, the New York court said it would deny the motion to compel but that if the parties could not reach an agreement  on a date for production, it would fix a date and, if necessary, “arbitrate what are reasonable or unreasonable search terms.” On December 1, the attorney general informed the court that though the parties had agreed in principle to a production schedule, they disagreed on “the parameters of what constitutes a reasonable production.” The attorney general asserted that Exxon continued “to insist on producing from a select group of custodians using search terms it has been advised repeatedly are inadequate.” Specific gaps mentioned in the attorney general’s letter to the court included documents regarding the proxy cost of carbon that Exxon said it used to integrate the impact of climate change into its business and information related to climate change and oil and gas reserves. The court scheduled a hearing for December 6. People v. PricewaterhouseCoopers LLP, No. 451962/2016 (N.Y. Sup. Ct. Nov. 14, 2016).

E&E Legal Asked Virginia Court to Compel Attorney General to Release Climate Investigation Records

Energy & Environment Legal Institute and its executive director filed a lawsuit under the Virginia Freedom of Information Act seeking to compel the Attorney General of Virginia to release documents related to climate change and communications between the offices of Virginia and New York attorneys general. The petitioners had submitted two requests for records related to investigations of “climate denial,” including documents related to the Common Interest Agreement among Virginia and other states. Richardson v. Herring, No. __ (Va. Cir. Ct., filed Nov. 15, 2016).


NAFTA Panel Awards U.S. Energy Firm Compensation for Losses from Stymied Offshore Wind Farm

Windstream Energy LLP, a New York company, challenged Ontario’s 2011 moratorium on new offshore windfarms as a violation of provisions of the North American Free Trade Agreement (NAFTA). Ontario’s moratorium blocked Windstream from performing under a $4 billion (C$5.2 billion) contract with the Ontario Power Authority to supply electricity from a planned 300 megawatt facility. Windstream sought $475 million (C$568 million) in damages and an instruction that the contract should go ahead. A three-member arbitration panel, acting pursuant to NAFTA’s dispute resolution provision, delivered its decision confidentially to the parties on September 30, 2016. The parties have indicated that while most of Windstream’s claims were dismissed, the panel awarded Windstream $19.2 million (C$25.2 million) in damages, $2.3 million (C$2.3 million) in costs, and recognized Windstream’s contract as still “in force.” An important feature of the arguments in the case was the lack of any environmental justification for the moratorium. Windstream Energy LLC Inc. v. Canada, Permanent Court of Arbitration, Case No. 2013-22 (2016)

Environmental NGOs Challenge Norway’s Issuance of Oil and Gas Lease on Constitutional Grounds

Two environmental NGOs are seeking a declaratory judgment from the Oslo District Court that Norway’s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. Their petition highlights several key factual points:

  • the licenses would allow access to as-yet undeveloped fossil fuel deposits, and such development is inconsistent with the climate change mitigation required to avert global warming of 1.5°C and possibly even 2°C in excess of pre-industrial levels;
  • the area made accessible by the licenses would be the northernmost yet developed, and would abut the ice zone—thus rigs and tankers would be exposed to unprecedented risks of damage and spills, and their operation would deliver emissions of black carbon to the highly sensitive arctic;
  • the Norwegian government will incur costs to develop the sites, and will only recoup those costs if the oil and gas they produce commands and adequately high market price.

It situates these points in a legal context shaped most fundamentally by article 112 of the Norwegian Constitution, which establishes a “right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.” Other constitutional provisions cited in the petition as relevant to the licensing decision include those requiring government action to be consistent with: the precautionary principle; the no harm principle as it applies both domestically and to citizens of other countries; and human rights protections. Greenpeace Nordic Ass’n and Nature and Youth v. Norway Ministry of Petroleum and Energy, Oslo District Court (petition filed Oct. 18, 2016).

Provisions of Colombia’s National Development Plan 2014–2018 That Threaten Carbon-Hungry Páramos Ecosystems Declared Unconstitutional

Colombia’s Constitutional Court struck down provisions of Law No. 1450 of 2011 and of Law No. 1753 of 2015 that threatened high-altitude ecosystems, called páramos. The court noted several important features of páramos, including their fragility, their lack of regulatory protection, their role in providing Colombia with as much as 70 percent of its drinking water, and the capacity of their soils and vegetation to capture carbon dioxide from the atmosphere. The court highlighted the last of these features in particular, calling páramos a “carbon capture system” and explaining that a páramos’ carbon capture capacity exceeds that of a comparably-sized tropical rainforest.

Law No. 1450 of 2011 established Colombia’s National Development Plan 2010–2014, and Law No. 1753 of 2015 established its 2014–2018 successor. Two provisions in the latter law are especially notable here. The first of these authorizes the Commission on Intersectoral Infrastructure and Strategic Projects to designate particular projects as being in the national strategic interest—a designation that exempts projects from aspects of local regulatory oversight. The second provision prohibits various activities—agriculture, mining, oil and gas exploration and refining—in páramos, but only if project owners received a lease and environmental permit for mining after February 9, 2010 or for oil and gas operations after June16, 2011. Thus the law authorizes projects that received permits prior to those dates.

The Court declared both of these provisions (and others) unconstitutional for, among other things, endangering the public’s right to clean water, and relieving government agencies of their obligation to justify decisions certain to result in the degradation of environmentally sensitive and valuable areas. Colombian Constitutional Court, Decision (Sentencia) C-035/16 of February 8, 2016. The full decision (in Spanish) is available here. A 10-page summary (also in Spanish) issued by the Court is available here.

Indian Court Orders State to Reforest, Restrict Black Carbon from Vehicle Traffic

India’s National Green Tribunal (NGT) was granted jurisdiction by a 2010 statute “over all civil cases where a substantial question relating to environment … is involved and such question arises out of [one or more of seven environmental protection statutes enacted between 1974 and 2002].” The 2010 NGT Act empowers the NGT to initiate cases as well as order various remedies in those cases. In this case, the NGT did both: no party brought the case and the NGT ordered authorities in Himachal Pradesh to undertake several measures to remediate various environmental harms identified by consulting experts engaged by the NGT. The fundamental legal basis for the NGT’s decision is India’s constitution, and article 21 in particular, which, the NGT explained, has been interpreted by statutes and judicial decisions as providing for a fundamental right to what the NGT calls a “wholesome, clean, decent environment.” The NGT concluded that the government of Himachal Pradesh had violated its obligations under article 21 (as well as articles 48A and 51A) by failing to restrict development and road and pedestrian traffic in and around the increasingly touristed area accessible via the Rohatang Pass. Melting of regional glaciers and deforestation led the list of environmental impacts noted by the NGT, which identified the emission of black carbon from vehicle traffic as a chief cause of the melting. The NGT drew two linkages between these findings and global warming: first, that global warming heightens the need to take protective measures of a region sensitive to emissions and deforestation; and second, that “there is a need to tackle global warming” in order to avert the sort of environmental degradation at issue in the case. Although the NGT described how greenhouse gas emissions cause global warming, and affirmed the applicability of the “polluter pays” principle to the respondents in this case, the NGT did not assign Himachal Pradesh responsibility for mitigating global warming per se. It did, however, order the government of Himachal Pradesh to impose a host of restrictions on traffic and to undertake a program of reforestation, both of which would be overseen by a Monitoring Committee that would make quarterly reports to the NGT. In re Court on its own motion v. State of Himachal Pradesh and others, National Green Tribunal, Principal Bench, New Delhi, Application No. 237 (THC)/2013 (CWPIL No. 15 of 2010) (Ind.). The NGT Act is available here. The NGT’s February 2014 Order is available here.

Swiss “Grannies” Take Note of the Latest Science and Demand That Switzerland Accelerate Its Climate Mitigation Efforts

Petitioners, a group of older women, allege that the Swiss Government, by not steering Switzerland onto an emissions reduction trajectory consistent with the goal of keeping global temperatures below 2ºC above pre-industrial levels, has failed to uphold obligations imposed by articles 10 (right to life), 73 (sustainability principle), and 74 (precautionary principle) of the Swiss Constitution and by articles 2 and 8 of the European Convention on Human Rights. The women’s petition notes that their demographic group is especially vulnerable to the heat waves expected to result from climate change. It asks that the legislature and the federal agencies responsible for transportation, environmental protection, and energy be required to develop a regulatory approach to several sectors that would achieve greenhouse gas emissions reductions of at least 25% below 1990 levels by 2020 and at least 50% below 1990 levels by 2050. It criticizes both the targets currently under discussion in the legislature (20% by 2020 and 30% by 2030) and the measures by which the Government would pursue those targets. Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council (Verein KlimaSeniorinnen Schweiz v. Schweizerische Bundeskanzlei). An unofficial English summary of the petition is available here. The full petition (in German) is available here.

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