Each month, Arnold & Porter Kaye Scholer LLP 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 SINCE UPDATE #97.
California Appellate Court Upheld Cap-and-Trade Program; Parties Planned Appeal to California Supreme Court
In a split opinion, the California Court of Appeal upheld California’s cap-and-trade program for greenhouse gas emissions. The court ruled that the state legislature had given the California Air Resources Board “broad discretion” to design a system for reducing emissions and that the auction of emissions allowances did not exceed the scope of CARB’s delegated authority. The court further found that the legislature’s subsequent specification of how to spend the auction proceeds ratified use of the auction system. The court also held that auction sales of the emissions allowances were not a tax (which would have been barred unless approved by a two-thirds supermajority of the legislature) because purchase of the allowances was voluntary and because the allowances were “valuable, tradable commodities, conferring on the holder the privilege to pollute.” The purchase of allowances therefore did not bear the “hallmarks” of a tax. One justice dissented from the holding that the sale of the allowances did not constitute a tax. The dissenting justice contended that the purchase of allowances was not voluntary, that the allowances did not confer property rights, and that the court should have considered the use of the auction proceeds as relevant to the question of whether the sales were a tax. The dissenting justice further indicated that he was not convinced by the State’s labeling of “wide and varied uses” of the auction proceeds as “uses that address (not necessarily reduce), however tangentially, greenhouse gas emissions.” Counsel for one set of plaintiffs indicated that its clients would appeal to the California Supreme Court. California Chamber of Commerce v. California Air Resources Board, Nos. C075930, C075954 (Cal. Ct. App. Apr. 6, 2017).
DECISIONS AND SETTLEMENTS
In Young People’s Climate Lawsuit Against U.S., Federal Magistrate Recommended Denial of Motions to Certify Case for Appeal
A magistrate judge in the federal district court for the District of Oregon recommended denial of motions by federal defendants and by intervenor oil and gas trade groups to certify the district court’s denial of motions to dismiss the lawsuit brought by young people alleging that the defendants violated rights protected by the Constitution by allowing greenhouse gas emissions to accumulate. The magistrate rejected the intervenors’ contention that the issue of whether the political question doctrine barred the plaintiffs’ claims should be certified. The magistrate judge said that the court would be capable of granting equitable relief that would not “micro manage” federal agencies or make policy judgments in the event the plaintiffs prevailed. The magistrate “emphatically rejected” any contention that the topic of “climate change” was “formed and determined by political values and is thus a non-justiciable political question” and said that climate change was “quintessentially a subject of scientific study and methodology, not solely political debate” and that courts were “particularly well-suited for the resolution of factual and expert scientific disputes.” The magistrate further indicated that the issues in the case “and the fundamental constitutional rights presented” would not be “well served by certifying a hypothetical question to the Court of Appeals bereft of any factual record or any record at all beyond the pleadings.” The magistrate judge indicated that the federal defendants’ significant admissions regarding the threats posed by human-induced climate change had, “if anything, … enhanced” the plaintiffs’ due process claim and that any appeal would be premature because the taking of evidence was necessary to “flesh out… critical issues.” The magistrate judge also was not persuaded that certification should be granted for the public trust claim, indicating that the federal defendants were relying on an overly expansive reading of Supreme Court precedent to narrow the scope of the federal public trust obligations. In recommending denial of certification on the issue of the plaintiffs’ standing, the magistrate said that the alleged harms to the plaintiffs from climate change should not be “minimalized by the fact that vast numbers of the populace are exposed to the same injuries.” The magistrate noted that numerous factual questions would be addressed at trial (e.g. “Is climate change occurring?” “If so, to what extent is it being caused by fossil fuel production?), and said the defendants and the intervenors “would put the cart before the horse” by certifying hypothetical questions before the relevant factual issues were addressed. The parties were given 14 days to file written objections to the magistrate judge’s recommendation, followed by 14 days to file a response to the objections. Juliana v. United States, No. 6:15-cv-01517 (D. Or. May 1, 2017).
Supreme Court Denied Certiorari in Polar Bear Critical Habitat Case
On May 1, 2017, the U.S. Supreme Court declined to review the Ninth Circuit’s February 2016 decision upholding the designation of critical habitat for polar bears. The State of Alaska, Alaska native communities, Alaska Oil and Gas Association, and American Petroleum Institute had asked the Court to take up the question of whether the Ninth Circuit’s “exceedingly permissive standard” for critical habitat designation allowed the U.S. Fish and Wildlife Service to designate “huge geographic areas” that failed to meet the Endangered Species Act’s criteria for critical habitat. Alaska v. Zinke, No. 16-596 (U.S. May 1, 2017); Alaska Oil & Gas Association v. Zinke, No. 16-610 (U.S. May 1, 2017).
D.C. Circuit Put Clean Power Plan Challenges on Hold
On April 28, 2017, the D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motions to hold the cases challenging the Clean Power Plan and the greenhouse gas standards for new power plants in abeyance while EPA undertakes its review of the regulations. The court ordered that both cases be put on hold for 60 days and that EPA file status reports every 30 days. The court further ordered the parties to file supplemental briefs addressing whether the cases should be remanded to EPA rather than held in abeyance. Those briefs were to be submitted by May 15. In the Clean Power Plan case, the court deferred ruling on multiple motions requesting that petitions challenging EPA’s January 2017 denial of requests for reconsideration of the Clean Power Plan rule be severed and consolidated with the pending Clean Power Plan challenges. The D.C. Circuit held oral arguments in the Clean Power Plan case in September 2016. In Executive Order No. 13783 issued on March 28, 2017, President Trump ordered EPA to review both regulations and, if appropriate, to suspend, revise, or rescind them. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. Apr. 28, 2017); North Dakota v. EPA, Nos. 15-1381 et al. (D.C. Cir. Apr. 28, 2017).
New York Federal Court Declined to Reopen Jurisdictional Discovery in Exxon’s Action Against Attorneys General; Schedule Set for Renewed Motions to Dismiss
After the transfer of Exxon Mobil Corporation’s (Exxon’s) lawsuit seeking to block investigations by the New York and Massachusetts attorneys general from Texas federal court to the federal district court for the Southern District of New York, the New York court declined to reopen jurisdictional discovery into the attorneys’ general motivations for commencing the investigations. The court also ordered the dismissal without prejudice of the attorneys’ general pending motions to dismiss and set a schedule for renewal of the motions. Briefing on the motions was to be completed by June 30, 2017. The order authorized the attorneys general to seek dismissal on the grounds of personal jurisdiction, ripeness, abstention pursuant to the Colorado River doctrine (which may apply where there are concurrent federal and state lawsuits pending), and collateral estoppel and res judicata. The court did not authorize the defendants to seek dismissal based on Younger abstention—the abstention doctrine on which the attorneys general primarily had relied in their motions before the Texas federal court. (Younger abstention applies when ongoing state judicial proceedings implicate important state interests and provide adequate opportunity to raise constitutional challenges.) Expressing concern that the attorneys general had commenced their investigations in bad faith, the Texas federal court had ordered discovery into the motivations of the attorneys general to determine whether the “bad faith” exception to Younger abstention applied.
The New York court’s order followed a status conference held on April 21, at which the judge reportedly stated that she had a “different view” of the case than the Texas judge. Prior to the conference, the parties submitted a joint letter at the direction of the court in which Exxon proposed that jurisdictional discovery continue and the attorneys general requested that their motions to dismiss be decided after rebriefing under Second Circuit law. The attorneys general asserted that developments in the ongoing state court proceedings made Younger abstention particularly appropriate.
One day before the status conference, the attorneys general from Texas and 10 other states sought permission to file an amicus brief in support of Exxon. The 11 attorneys general said that the Massachusetts and New York investigations were “an attempt to establish and enforce a singular climate change viewpoint despite the fact that climate change is the subject of an ongoing international debate and far from settled” and that they would provide the court with a different perspective than the defendants “on the nature of the power being employed, the correct use of [civil investigative demands] and subpoenas, and where the boundaries of government power end and the protections of the First Amendment begin.” In their proposed brief, the 11 attorneys general argued that the Massachusetts and New York attorneys general were targeting critics and abusing their power, and argued that the politicized investigations would undermine public confidence. Echoing the concerns raised by the Texas federal district court, the 11 attorneys general argued that abstention under the Younger doctrine was not warranted because the defendants had commenced their investigations in bad faith. Exxon Mobil Corp. v. Schneiderman, No. 1:17-cv-02301 (S.D.N.Y. order Apr. 24, 2017; joint letter Apr. 12, 2017; states’ amicus motion and proposed amicus brief Apr. 20, 2017).
Challenge to Keystone Pipeline Permit Denial Dismissed After Trump Administration Granted Permit
After the Trump administration granted a presidential permit for the Keystone XL pipeline, the federal district court for the Southern District of Texas granted TransCanada Keystone Pipeline, LP and a related entity’s motion for voluntary dismissal of their lawsuit challenging the Obama administration’s denial of the permit. TransCanada Keystone Pipeline, LP v. Kerry, No. 4:16-cv-00036 (S.D. Tex. Apr. 6, 2017).
Missouri Federal Court Dismissed ERISA Class Action Against Peabody Energy
The federal district court for the Eastern District of Missouri dismissed a class action under the Employee Retirement Income Security Act of 1974 (ERISA) that had been brought against the coal company Peabody Energy Corporation (Peabody) and related entities and individuals. The court concluded that the plaintiffs, who were participants in Peabody employee stock option plans, had failed to state a claim that the defendants breached their duty of prudence under ERISA by retaining and continuing to purchase Peabody stock in light of public information that established that doing so was unreasonable. The court also found that the plaintiff’s “nonpublic information” claim—based on Peabody’s allegedly deceptive representations regarding the future of coal—failed because the plaintiffs had not established that a prudent fiduciary could not have concluded that alternatives to continued investment in Peabody stock would do more harm than good. Lynn v. Peabody Energy Corp., No. 4:15CV00916 (E.D. Mo. Mar. 30, 2017).
Oregon Federal Court Upheld Decision to Allow Continued Grazing on Forest Lands
The federal district court for the District of Oregon rejected a challenge to the U.S. Forest Service’s decision to allow continued livestock grazing on forest lands in the Upper Klamath Basin. The court was not persuaded by the plaintiffs’ claims that the National Environmental Policy Act (NEPA) review was insufficient, including by a claim that the Forest Service should have supplemented its 2009 NEPA analysis based on 2013 and 2014 reports by the U.S. Fish and Wildlife Service indicating that climate change and drought posed threats to endangered fish species. The court found that the information was not new and did not impose an obligation to supplement the 2009 review. Oregon Wild v. Cummins, No. 1:15-cv-01360 (D. Or. Mar. 8, 2017).
California Court of Appeal Found Fault (Again) with CARB’s Assessment of Increased Nitrogen Oxide Emissions Associated with Low Carbon Fuel Standard
On April 10, 2017, the California Court of Appeal ruled that the California Air Resources Board (CARB) had failed, for a second time, to comply with the California Environmental Quality Act (CEQA) in its promulgation of a Low Carbon Fuel Standard (LCFS). In 2013, the court identified CEQA violations in CARB’s original LCFS and directed CARB to correct the violations. The primary issue that CARB was to consider was the potential increase in nitrogen oxide emissions associated with increased biodiesel consumption. In its April 2017 decision, the Court of Appeal concluded that CARB had failed to comply with the court’s 2013 directive because CARB had improperly used 2014 emissions of nitrogen oxides as a baseline for its review of the LCFS adopted in 2015, rather than emissions levels prior to the adoption of the original LCFS in 2009. The appellate court determined that it would be appropriate and in the public interest, however, to leave the remainder of the LCFS regulations in place and to allow the 2017 standards for diesel fuel and its substitutes to remain in effect until CARB remedied the CEQA violations. POET, LLC v. California Air Resources Board, No. F073340 (Cal. Ct. App. Apr. 10, 2017).
NEW CASES, MOTIONS, AND NOTICES
EPA Asked D.C. Circuit to Hold Challenges to Oil and Gas Sector Emissions Standards in Abeyance
On April 7, 2017, EPA asked the D.C. Circuit Court of Appeals to hold challenges to the new source performance standards (NSPS) for oil and gas facilities in abeyance while the agency reviewed the standards in accordance with President Trump’s executive order on “Promoting Energy Independence and Economic Growth.” The oil and gas sector NSPS, which included limitations on methane emissions, was one of the regulations identified by the executive order for review and possible suspension, revision, or rescission. Industry and state petitioners urged the D.C. Circuit to grant EPA’s request to pause the litigation. Their submissions to the court acknowledged the complexity of the case—which also concerns two earlier regulations on emissions from oil and gas sources—but said that holding the case in abeyance would be an appropriate step that would not prejudice any parties. Two sets of respondent-intervenors—one made up of states that support the NSPS and another comprising environmental groups—opposed holding the case in abeyance, arguing that issues raised were neither moot nor unripe, and that it was not certain that the EPA would be successful in promulgating a different or weaker rule. On April 18, EPA granted requests for reconsideration by oil and gas trade groups and also agreed to postpone initial compliance dates, indicating that the petitions raised at least one objection concerning monitoring of fugitive emissions that related to provisions in the final rule that did not appear in the initial rule. American Petroleum Institute v. EPA, Nos. 13-1108 et al. (D.C. Cir. Apr. 7, 2017).
EPA Requested Pause in Litigation Challenging Greenhouse Gas Standards for Heavy-Duty Vehicles
On April 20, 2017, EPA asked the D.C. Circuit Court of Appeals to pause challenges to greenhouse gas and fuel efficiency standards for new large and heavy-duty vehicles to allow the agency to review a request for reconsideration submitted by the petitioner in one of the proceedings challenging the standards. That petitioner—the Truck Trailers Manufacturers Association, Inc. (TTMA)—partially opposed the pause in the litigation because EPA did not propose to stay or extend the standards’ effective dates. TTMA argued that the 90-day abeyance sought by EPA would unfairly prejudice it and its members because they faced “imminent compliance obligations.” TTMA indicated it was willing to support a 30-day delay in setting a briefing schedule. Truck Trailers Manufacturers Association, Inc. v. EPA, No. 16-1430 (D.C. Cir. Apr. 20, 2017).
Briefs Submitted in Conservation Groups’ Tenth Circuit Appeal of Intervention Denial in Case Seeking Quarterly Oil and Gas Lease Sales
Briefing was completed in April in the Tenth Circuit Court of Appeals on the issue of whether a New Mexico federal court properly denied conservation groups’ motion to intervene in a lawsuit in which Western Energy Alliance sought to compel the United States Bureau of Land Management (BLM) to hold quarterly oil and gas lease sales for public lands. The district court found that the groups had not shown that their interests would be impeded by the litigation or that their interests could not be adequately represented by existing parties. On appeal, the conservation groups argued that they were entitled to intervene as of right because the relief sought by the Alliance would impair their interests by increasing the frequency of lease sales and undermining leasing reforms that had provided greater public participation and more environmental review. The groups also argued that they had met their “minimal” burden of demonstrating that BLM might not adequately represent their interests; the groups said BLM, which was charged with “balancing” different uses of public lands, would not adequately represent the groups’ interest in “protecting” those lands. The groups also asserted that the district court abused its discretion by not granting permissive intervention. In its response brief, Western Energy Alliance said that the conservation groups mischaracterized the relief sought in the lawsuit, which the Alliance said was limited to enforcing BLM’s nondiscretionary duty under the Mineral Leasing Act to conduct quarterly lease sales when lands were eligible. The Alliance said it did not seek to change the definition of “eligible” or modify the process by which lands were identified as eligible. The federal government, which had not opposed intervention in the district court, submitted an amicus brief supporting the district court’s denial of intervention. The amicus brief argued that Western Energy Alliance had conceded that it would not seek to limit BLM’s discretion to decide when eligible mineral lands were available for oil and gas leasing and that the case therefore did not threaten to impair the conservation groups’ interests. Western Energy Alliance v. Zinke, No. 17-2005 (10th Cir. opening brief Mar. 6, 2017; Western Energy Alliance brief Apr. 5, 2017; U.S. amicus brief Apr. 12, 2017; appellants’ reply brief Apr. 19, 2017).
States, D.C. Asked to Intervene in Challenge to Energy Efficiency Standards for Lamps
Six states and the District of Columbia filed a motion to intervene to defend federal energy efficiency standards for lamps in the Fourth Circuit Court of Appeals. The United States Department of Energy (DOE) issued the standards for “general service lamps” on January 19, 2017, after which the National Electrical Manufacturers Association filed its petition for review challenging the regulations. The states and the District of Columbia asserted that energy conservation resulting from the lamp standards would be critical to their efforts to reduce energy use and costs and to reduce greenhouse gas emissions. The states noted that since federal law generally preempted their own efforts to impose standards on lamps, their interests would therefore be impaired by weakening or delay of the lamp standards. The states also contended that their interests in defending the lamp standards might not be aligned with DOE’s interests in the future. National Electrical Manufacturers Association v. United States Department of Energy, No. 17-1341 (4th Cir. Apr. 17, 2017).
Briefing Completed in EPA’s Appeal of Jobs Study Order; States Weighed in on Side of Coal Company Appellees
Sixteen states, led by West Virginia, filed an amicus brief in the Fourth Circuit Court of Appeals urging it to uphold the decision by a West Virginia federal court requiring EPA to prepare a study of the Clean Air Act’s effects on employment. The district court concluded, in an action brought by coal companies, that EPA had a nondiscretionary obligation to conduct such a study. The states argued that the study would provide necessary and useful information about the impacts of Clean Air Act regulations, including the Clean Power Plan and carbon standards for new power plants, that the states could use to devise economic policies and for budgeting. A nonprofit group called the Cause of Action Institute also filed an amicus brief, arguing that EPA’s failure to conduct the employment studies required by the Clean Air Act as well as a similar studies called for by the Clean Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, revealed “systemic problems with the EPA” and reflected “a lack of concern regarding the employment effects of its activities.” EPA submitted its reply brief in the appeal on April 14. Environmental groups that unsuccessfully sought to intervene on EPA’s behalf filed a final brief on April 17 seeking reversal of the denial of their request. Oral argument is to take place on May 9. Murray Energy Corp. v. EPA Administrator, No. 16-2432 (4th Cir. EPA response brief in support of order denying intervention Mar. 31, 2017; states’ amicus brief and Cause of Action Institute amicus brief Apr. 7, 2017; EPA reply brief Apr. 14, 2017; applicants-in-intervention-appellants reply brief Apr. 17, 2017).
States and New York City Challenged Delay in Implementation of Energy Efficiency Standards
Ten states and the City of New York filed a petition in the D.C. Circuit Court of Appeals seeking review of the U.S. Department of Energy’s (DOE’s) decision to delay the effective date for final energy conservation standards for ceiling fans. On January 31, 2017, DOE published notice that it would postpone the effective date to March 21, 2017; on March 21, DOE published notice that it would further delay the effective date to September 30, 2017 to allow the Secretary of Energy time to review and consider the regulations. New York v. U.S. Department of Energy, No. 17-916 (2d Cir., filed Mar. 31, 2017).
In Challenge to Update to Manual Governing Apalachicola Dams and Reservoirs, Environmental Groups Alleged NEPA Violations, Including Failure to Take Climate Change into Account
Three environmental organizations filed a lawsuit in the federal district court for the District of Columbia claiming that the U.S. Army Corps of Engineers’ approval of an update to the Master Water Control Manual for federal dams and reservoirs in the Apalachicola-Chattahoochee-Flint River Basin violated the National Environmental Policy Act (NEPA), the Water Resources Development Act, and the Fish and Wildlife Coordination Act. The alleged flaws in the Corps’ review included that the Corps allegedly relied on a “fundamentally flawed” model to simulate freshwater flows. The plaintiffs contended that the model’s flaws included a reliance on historical hydrological data that was “inadequate in light of known, foreseeable and anticipated changes in climate, including related increases in the frequency, duration and severity of droughts.” The plaintiffs said that the updated Water Control Manual would withhold freshwater flows necessary to sustain the Apalachicola ecosystem and local economies. National Wildlife Federation v. U.S. Army Corps of Engineers, No. 1:17-cv-00772 (D.D.C., filed Apr. 27, 2017).
Lawsuit Sought Disclosure of Trump Transition Climate Questionnaire Documents at Department of Energy
On April 27, 2017, the Protect Democracy Project, Inc. filed a lawsuit pursuant to the federal Freedom of Information Act (FOIA) asking the federal district court for the District of Columbia to order the U.S. Department of Energy (DOE) to search for and produce Trump administration transition team questionnaires regarding climate change. The plaintiff submitted a FOIA request for the documents on February 15, 2017. The request also sought records regarding personnel changes, assignments, and assignment policies at DOE. Project Democracy Project, Inc. v. U.S. Department of Energy, No. 1:17-cv-00779 (D.D.C., filed Apr. 27, 2017).
FERC Declined Invitation to Weigh in on Nuclear Subsidies in Illinois Federal Court; Parties Briefed Motions to Dismiss Challenges to Subsidies
On April 24, 2017, the federal district court for the Northern District of Illinois invited the Federal Energy Regulatory Commission (FERC) to submit an amicus brief stating “its views, if any, on the intersection of Illinois’s Zero Emission Credit [(ZEC)] program and the Federal Power Act and/or FERC’s jurisdiction over wholesale electricity sales.” The court sought FERC’s views in the context of two lawsuits challenging the ZEC program in which the plaintiffs claimed that the program was preempted and violated the Commerce Clause. On April 26, 2017, FERC submitted a letter to the court indicating that it would not submit a brief. FERC noted that a complaint related to the ZEC program and filed by one of the plaintiffs in the lawsuits was currently pending before FERC. FERC also noted that it was operating without a quorum and would not be able to act on the pending complaint until the quorum was restored, after which it would be able to address the complaint and potentially provide a more definitive statement on its views.
Earlier in April, the state defendants and the owner of nuclear plants eligible for ZEC credits filed motions to dismiss the two lawsuits, arguing that the plaintiffs failed to state valid claims, that the plaintiffs lacked a cause of action for bringing their preemption claims, and that the plaintiffs lacked standing to bring their dormant Commerce Clause claims. In response, the plaintiffs argued that their complaint stated claims of field and conflict preemption and of a dormant Commerce Clause violation. The plaintiffs also contended that FERC did not have primary jurisdiction over the conflict preemption claim, and that the court had equitable jurisdiction to consider the preemption claims. The plaintiffs also disputed the foundation of the defendants’ arguments—that the ZEC program and the statute that created it were environmental programs aimed at reducing carbon emissions.
Other parties sought to intervene or to file amicus briefs in the lawsuits, including both of the regional transmission operators that oversee the electric grid in Illinois. Midcontinent Independent System Operator, Inc. (MISO)—which oversees the electric grid in 15 states (including in southern Illinois) and the Canadian province of Manitoba—submitted an amicus brief arguing that the case should be dismissed because a decision by the court could prematurely limit ongoing efforts before FERC involving MISO stakeholders to resolve questions related to issues before the court. PJM Interconnection, L.L.C. (PJM)—the grid operator for 13 states (including northern Illinois) and the District of Columbia—filed an amicus brief opposing the motion to dismiss, arguing that the ZEC program would substantially harm the wholesale energy markets PJM operated. The Independent Market Monitor for PJM earlier moved to intervene as a plaintiff “to promote and protect the competitive wholesale electric power markets and to avoid the burden that would be imposed on its resources in efforts to avert failure of the market if Defendants prevail.” A group of four non-profit groups that included Environmental Defense Fund sought leave to file an amicus brief urging dismissal of the lawsuit, arguing that the ZEC program operated within the “collaborative federalism” framework and was within Illinois’s authority to craft energy policy to address environmental and public health concerns. Natural Resources Defense Council also sought to file an amicus brief in support of the ZEC program. The American Wind Energy Association filed a proposed brief on behalf of neither party, asserting that it had a substantial interest in the case “because state-conducted resource procurement efforts for renewable energy could be called into question by a verdict for the Plaintiffs that is not narrowly tailored to the facts at hand.” Electric Power Supply Association v. Star, No. 1:17-cv-01164, and Village of Old Mill Creek v. Star, No. 1:17-cv-01163 (N.D. Ill. PJM Independent Market Monitor motion to intervene Mar. 16, 2017; Environmental Defense Fund et al. amicus motion, NRDC amicus brief, and American Wind Energy Association amicus motion and brief Apr. 12, 2017; MISO amicus brief and PJM amicus brief Apr. 24, 2017; FERC letter Apr. 26, 2017).
Plaintiffs Cited Cumulative Climate Effects as One Reason Why Northern Long-Eared Bat Should Have Been Listed as Endangered
In an action challenging decisions under the Endangered Species Act related to the northern long-eared bat, the plaintiffs filed a motion seeking summary judgment on their claim that the bat should have been listed as endangered rather than threatened. The plaintiffs’ arguments included that the United States Fish and Wildlife Service had focused solely on white-nose syndrome (WNS)—a fungal disease affecting hibernating bats that has killed millions of bats—and had failed to consider the cumulative effects of other stressors, including climate change. Center for Biological Diversity v. Kurth, No. 1:15-cv-00477 (D.D.C. Apr. 14, 2017).
Nonprofit Group Sought Records Providing Basis for EPA Administrator’s Statements About Climate Change
The nonprofit organization Public Employees for Environmental Responsibility filed an action under the Freedom of Information Act requesting that the federal district court for the District of Columbia order EPA to respond to the organization’s request on March 10, 2017 for records relied upon by EPA Administrator Scott Pruitt in statements he made about climate change in a televised interview. The complaint cited Pruitt’s statements that he would not agree that human activity was a “primary contributor to the global warming that we see” and that “there’s a tremendous disagreement about of the impact” of “human activity on the climate.” The complaint alleged that these remarks “stand in contrast to the published research and conclusions of the EPA.” Public Employees for Environmental Responsibility v. EPA, No. 1:17-cv-00652 (D.D.C., filed Apr. 13, 2017).
Parties Notified Arizona Federal Court That They Could Not Settle Dispute Over Impacts of Forest Plans on Mexican Spotted Owl
Four months after requesting a stay to explore settlement possibilities, WildEarth Guardians and federal defendants asked the federal district court for the District of Arizona to proceed to resolve their motions for summary judgment in WildEarth Guardians’ lawsuit challenging biological opinions issued by the United States Fish and Wildlife Service that found that forest plans developed by the United States Forest Service (USFS) were not likely to jeopardize the continued existence of the Mexican spotted owl or to destroy or adversely modify the owl’s critical habitat. The Mexican spotted owl has been designated a threatened species under the Endangered Species Act. WildEarth Guardians argued, among other things, that the biological opinions were arbitrary and capricious because they failed to contain any meaningful discussion of climate change even though the USFS’s Mexican spotted owl experts had concluded that climate change “may be the biggest issue” facing the species. In December 2016, the court granted a joint request for a stay after the parties indicated they were meeting in person in January 2017 to discuss new science pertaining to the owl as well as current and planned owl-management efforts with the hope of reaching a settlement. In their status report on April 4, 2017, the parties stated that “[i]t has now become apparent to the parties that it will not be possible to achieve a negotiated resolution of the matters raised in this litigation.” WildEarth Guardians v. United States Fish & Wildlife Service, No. 4:13-cv-00151 (D. Ariz. Apr. 4, 2017).
Exxon Filed Motion to Dismiss ERISA Class Action
Exxon Mobil Corporation and individual defendants (Exxon) filed a motion to dismiss a class action brought under the Employee Retirement Income Security Act (ERISA) on behalf of participants in an Exxon retirement savings plan. The complaint asserted that the defendants violated their fiduciary duties by investing in Exxon stock when they knew the stock price was artificially inflated because Exxon had failed to make disclosures concerning climate change risks. In the motion to dismiss, Exxon asserted that the complaint did not satisfy the “exacting” pleading standard and did not plausibly allege either the existence of material information that Exxon misrepresented or improperly failed to disclose or that the individual defendants knew nonpublic information about Exxon’s assets. Exxon also said that the complaint did not sufficiently allege a claim that the company failed to monitor the individual defendants. Attia v. Exxon Mobil Corp., No. 4:16-cv-03484 (S.D. Tex. Apr. 4, 2017).
Citing Climate Models Showing Reduced Water Levels, Environmental Groups Challenged Authorization of Increased Diversions from Lake Michigan
Four environmental organizations filed a lawsuit in Illinois state court challenging an Illinois Department of Natural Resources (IDNR) order permitting the Metropolitan Water Reclamation District of Greater Chicago to divert an additional 420 billion gallons of water from Lake Michigan. The plaintiffs alleged that IDNR had violated the Level of Lake Michigan Act and its implementing regulations, the Great Lakes-St. Lawrence River Basin Water Resources Compact, and a consent decree entered by the United States Supreme Court in 1967 by failing to make a proper determination of the volume of the diversion and failing to impose conservation practices as conditions. The plaintiffs contended that ensuring that water from the Great Lakes was “diverted to the least extent possible” was “particularly important because scientific models project that climate change will produce a drop of two feet in the average water level of the Great Lakes during this century.” Alliance for the Great Lakes v. Illinois Department of Natural Resources, No. 2017CH05445 (Ill. Cir. Ct., filed Apr. 14, 2017).
Lawsuit Filed Challenging Water Project in San Bernardino
Center for Biological Diversity and San Bernardino Valley Audubon Society filed a lawsuit challenging the California Environmental Quality Act (CEQA) review for the “Clean Water Factory Project” approved by the City of San Bernardino. The petition alleged that the project would divert up to 22 million gallons of treated water per day from the Santa Ana River. The petition asserted numerous failures in the environmental review for the project, including a failure to adequately disclose, analyze, and mitigate the project’s significant and cumulative impacts to air quality and greenhouse gas emissions. Center for Biological Diversity v. City of San Bernardino Municipal Water Department, No. CIVDS1706284 (Cal. Super. Ct., filed Apr. 6, 2017).
Conservation Groups Launched CEQA Lawsuit Challenging Aquaculture Expansion Project in Climate-Threatened Habitat
Two wildlife conservation organizations filed a lawsuit alleging that the Humboldt Bay Harbor, Recreation and Conservation District had not complied with CEQA in connection with the District’s approval of an expansion of shellfish aquaculture activities into 256 acres of undeveloped eelgrass habitat and other sensitive tidelands habitat. The organizations alleged that declines in eelgrass habitat due to climate change impacts such as increased temperatures and disease already had been reported along the California and Baja California coasts and that climate change was likely to exacerbate adverse impacts to eelgrass and mudflat habitats in the future due to sea level rise resulting in submersion of the habitats in waters too deep to allow sunlight and growth. National Audubon Society v. Humboldt Bay Harbor, Recreation & Conservation District, No. CV170248 (Cal. Super. Ct., filed Mar. 30, 2017).
Groups Asked U.S. to Protect Giraffe Under Endangered Species Act
On April 19, 2017, five environmental and animal protection groups submitted a petition to the Secretary of the Interior and United States Fish and Wildlife Service requesting that the giraffe be listed under the Endangered Species Act. The petition described a number of threats to the giraffe’s survival, including climate change, which the petition said could increase the frequency and magnitude of droughts, increase bushfires, and reduce food availability. Petition to List the Giraffe (Giraffa Camelopardalis) Under the Endangered Species Act (Apr. 19, 2017).
California Asked EPA for More Stringent Federal Emission Standards for Locomotives
On April 13, 2017, the California Air Resources Board sent a letter to EPA Administrator Scott Pruitt requesting that EPA adopt more stringent emission standards for locomotives. CARB said its proposed standard could achieve 99% control of emissions of nitrogen oxides and diesel particulate matter, 98% control of hydrocarbon emissions, and 10–25% control of greenhouse gas emissions. The proposed standards would apply to newly built and remanufactured locomotives and locomotive engines. CARB, Petition for Rulemaking Seeking Amendment of Locomotive Emission Standards (Apr. 13, 2017).