Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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.
In June, the Sabin Center, in collaboration with APKS, officially launched a new version of the climate litigation charts at https://climatecasechart.com. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 99.
FEATURED CASE
D.C. Circuit Vacated EPA’s Administrative Stay of Methane Standards for Oil and Gas Facilities
A divided D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (EPA) lacked authority to administratively stay portions of new source performance standards for the oil and gas sector for which it had granted requests for reconsideration. The stayed aspects of the standards related to fugitive emissions requirements, alternative means of compliance, standards for pneumatic pumps at well sites, and requirements for certification by a professional engineer. The D.C. Circuit concluded that the administrative stay constituted reviewable final agency action because it was consummation of EPA’s decision-making process with respect to the standards’ effective date even though EPA’s underlying decision to reconsider portions of the standards would not by itself be subject to review. The D.C. Circuit also rejected EPA’s argument that the court did not have authority to review stays issued under Section 307(d)(7)(D) of the Clean Air Act. The court said the statutory language authorized courts to grant stays and that EPA’s reading of the statute “would have the perverse result of empowering this court to act when the agency denies a stay but not when it chooses to grant one.” The D.C. Circuit further concluded that Section 307(d)(7)(B) expressly linked EPA’s power to stay to regulatory provisions meeting the requirements for “mandatory reconsideration”—that it was “impracticable to raise” an objection during the public comment period and that the objection was “of central relevance to the outcome of the rule.” The D.C. Circuit concluded that EPA had acted arbitrarily and capriciously in determining that the four elements of the regulations that had been stayed met these requirements. The court said the administrative record “makes clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration.” The court therefore found that the stay was unauthorized and vacated it. (The D.C. Circuit also rejected EPA’s argument that it had inherent authority outside of Section 307(d)(7)(B) to issue the stay.) The court emphasized, however, that even though EPA did not have an obligation to reconsider the four provisions, “nothing in this opinion in any way limits EPA’s authority to reconsider the final rule … as long as ‘the new policy is permissible under the statute … , there are good reasons for it, and … the agency believes it to be better.’ ” Judge Brown wrote a dissenting opinion, indicating that she believed the stay did not constitute final agency action because it did not represent “consummation of the agency’s decision-making process” and because it did not “impose legal or practical requirements on anyone,” noting that EPA was not compelling compliance and that “[i]f a regulated entity wants to comport its conduct to the requirements of the stayed rule, it is free to do so.” (The majority responded to this latter point by saying that “[t]he dissent’s view is akin to saying that incurring a debt has legal consequences, but forgiving one does not. A debtor would beg to differ.”)
A number of different parties had lined up on either side of the issue of whether EPA’s stay was lawful. Six environmental groups launched the proceeding challenging the stay after EPA published notice of the stay in the June 5, 2017 issue of the Federal Register. Thirteen states, the District of Columbia, and the City of Chicago sought leave to intervene on behalf of the petitioners. These potential intervenors alleged that the additional emissions during the stay period would harm their interest in protecting their residents from the effects of air pollution and climate change. Colorado separately sought leave to intervene in support of the petitioners, noting that it had already undertaken significant steps to control ozone-forming pollutants and methane from oil and gas sources and also contending that the stay would “concretely and negatively” affect Colorado’s interests in, among other things, protecting its citizens from air pollution and climate change. Eleven states or state agencies or officials sought to intervene on EPA’s behalf, as did oil and gas trade groups and a number of independent oil and gas producers, who argued that the stay did not constitute reviewable final agency action. Two other states—Texas and North Dakota—filed an amicus brief supporting EPA; the petitioners opposed their participation on procedural grounds. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir., filed June 5, 2017; emergency motion for stay granted July 3, 2017).
DECISIONS AND SETTLEMENTS
Fourth Circuit Said West Virginia District Court Lacked Jurisdiction to Consider Coal Companies’ Clean Air Act Jobs Study Lawsuit
The Fourth Circuit Court of Appeals ruled that a West Virginia federal district court had erred in concluding that it had jurisdiction to consider the coal company Murray Energy Corporation’s and its affiliates’ lawsuit that sought to compel EPA to conduct evaluations of the Clean Air Act’s employment effects. The district court ruled that EPA was required to conduct such evaluations in October 2016 and set an expedited schedule for EPA’s compliance. The Fourth Circuit ruled that the provision at issue—Section 321(a) of the Clean Air Act—did not “impose on the EPA a specific and discrete duty amenable to” judicial review under Section 304(a)(2) of the Clean Air Act. (Section 321(a) provides that EPA Administrator “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the [Clean Air Act] including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”) The Fourth Circuit said Section 321(a) imposed “a broad, open-ended statutory mandate” and that EPA was left with “considerable discretion” in managing this mandate, including getting to decide “how to collect a broad set of employment impact data, how to judge and examine this extensive data, and how to manage these tasks on an ongoing basis”—a process that a court “is ill-equipped to supervise.” The Fourth Circuit also distinguished Section 321(a)’s mandate from other Clean Air Act provisions that offered “discrete directives accompanied by specific guidance on matters of content, procedure, and timing.” The Fourth Circuit also dismissed as moot an environmental group’s appeal of the district court’s denial of its motion to intervene. Murray Energy Corp. v. EPA Administrator, Nos. 16-2432 et al. (4th Cir. June 29, 2017).
California Supreme Court Denied Petitions to Review Ruling That Upheld Cap-and-Trade Program
The California Supreme Court declined to review an intermediate appellate court’s decision upholding the statewide greenhouse gas cap-and-trade program. The plaintiffs in lawsuits challenging the cap-and-trade program had argued that it was not authorized by the Global Warming Solutions Act of 2006 and that the requirement to purchase emissions allowances constituted a tax that required approval by a two-thirds majority of the State legislature. The California Supreme Court denied three petitions for review. California Chamber of Commerce v. State Air Resources Board, No. S241948 (Cal. June 28, 2017).
Second Circuit Rejected Challenges to Connecticut Renewable Energy Programs
The Second Circuit Court of Appeals affirmed the dismissal of claims by Allco Finance Limited (Allco) that federal law preempted Connecticut’s renewable energy solicitations and that Connecticut’s Renewable Portfolio Standard (RPS) program violated the dormant Commerce Clause. Allco is an owner, operator, and developer of solar energy projects throughout the country, including in Georgia and New York. The Second Circuit rejected the claim that the renewable energy solicitations exceeded the limited authority granted to states with respect to wholesale sales of electricity under the Federal Power Act and the Public Utility Regulatory Policies Act. The Second Circuit said the Connecticut statutes authorizing the solicitations did not compel utilities to enter into contracts with specific bidders. The Second Circuit also distinguished the Connecticut program from a Maryland regulatory scheme that the U.S. Supreme Court determined was preempted in Hughes v. Talen Energy Marketing, LLC, and found that the renewable energy solicitation process was a permissible exercise of state power under the Federal Power Act. The Second Circuit also rejected Allco’s claims that Connecticut’s RPS discriminated against its facilities in Georgia (by barring the facility’s renewable energy certificates from counting towards utilities’ RPS requirements) and New York (by requiring payment of transmission fees) in violation of the dormant Commerce Clause. The Second Circuit agreed with Connecticut that the RECs produced by the Georgia facility were different products from RECs produced by facilities in the Northeast and that the RPS merely treated different products differently. The court further concluded that the burden imposed by Connecticut’s RPS program was not excessive in relation to the putative local benefits. The Second Circuit found that Allco had not sufficiently pled an excessive burden stemming from the transmission fees its New York facility had to pay to qualify for the RPS program. Allco Finance Ltd. v. Klee, Nos. 16-2946 & 16-2949 (2d Cir. June 28, 2017).
Trade Groups Released and Trial Date Set in Young People’s Climate Lawsuit in Oregon Federal Court; United States Asked Ninth Circuit to Stay Proceedings
A magistrate judge in the federal district court for the District of Oregon granted motions by three trade groups to withdraw from the lawsuit seeking to hold the United States liable for its actions and inaction leading to the accumulation of greenhouse gases in the atmosphere. The magistrate judge’s order also set the trial to begin on February 5, 2018. The magistrate granted the motions to withdraw without conditions, finding that the trade groups’ participation in the case had not been in bad faith or solely for the purpose of harassment or delay. The magistrate recounted the sequence of events leading up to the motions for withdrawal “to emphasize that the court has endeavored to ensure that all parties to this obviously novel and unprecedented lawsuit have a full and fair opportunity to address both the legal questions presented and the factual basis underlying those legal issues.” The magistrate said the trade group intervenors “no doubt have thoroughly studied the issue at the core of this case and are in a position to tender their own scientific evidence regarding climate change if they desire to challenge Plaintiffs’ evidence or the admissions of the United States”—but noted that the intervenors had chosen to withdraw rather than take the opportunity to “put the Plaintiffs to their proof at trial.”
Earlier in June, the district court denied the defendants’ motions to certify the denial of their motions to dismiss to the Ninth Circuit Court of Appeals, agreeing with the magistrate judge’s conclusion that certification for interlocutory appeal was not warranted. A day later the federal defendants filed a petition for writ of mandamus in the Ninth Circuit Court of Appeals requesting a stay of the proceedings in the district court. The federal government argued that denial of the motion to dismiss was based on clear error and that mandamus was warranted to confine the district court to the lawful exercise of its jurisdiction. The plaintiffs filed a brief opposing the petition on June 19. Juliana v. United States, No. 6:15-cv-01517 (D. Or. order denying interlocutory appeal June 8, 2017; order granting intervenors’ motions to withdraw and setting trial date June 28, 2017); United States v. U.S. District Court for District of Oregon, No. 6:15-cv-01517-TC (9th Cir., filed June 9, 2017).
California Federal Court Dismissed Preemption Claims Against Low-Carbon Fuel Standard but Allowed Commerce Clause Claim to Proceed
In a longstanding constitutional challenge to California’s low-carbon fuel standard (LCFS), a California federal court found that its prior ruling that challengers of the LCFS had stated a preemption claim was clearly erroneous. The court therefore dismissed preemption claims with prejudice. In addressing the plaintiffs’ dormant Commerce Clause claims, the court found that the Ninth Circuit’s decision in Rocky Mountain Farmers Union v. Coreyforeclosed the plaintiffs’ claim that the LCFS’s ethanol provisions had a discriminatory purpose but found that the plaintiffs had stated a claim that the LCFS ethanol provisions discriminated in practical effect against Midwestern ethanols and had “plausibly alleged that that burden far outweighs the benefits California will obtain as a result of the LCFS.” The court dismissed, however, dormant Commerce Clause claims against the LCFS’s crude oil provisions, finding that the plaintiffs had not and could not state a claim that the provisions discriminated against foreign crude oils in practical effect. The court rejected the argument that claims against the original and 2012 versions of the LCFS were moot, noting that these earlier versions affected how credits were calculated under the 2015 version. The court said, however, that the plaintiffs’ relief would be limited to declaratory and injunctive relief to address the present and future effects of the original and 2012 versions. The court said recalculation of past credits would be barred by the Eleventh Amendment. Rocky Mountain Farmers Union v. Corey, No. 1:09-cv-2234 (E.D. Cal. June 15, 2017).
Oregon Federal Court Dismissed Challenge to Bull Trout Recovery Plan
The federal district court for the District of Oregon adopted a magistrate judge’s recommendation that it dismiss a citizen suit challenging the Recovery Plan for the Coterminous United States Population of Bull Trout. The court agreed with the magistrate’s conclusion that the plaintiffs failed to state a claim for violation of a nondiscretionary duty under the Endangered Species Act and that the court therefore lacked jurisdiction. (The magistrate judge had found that the challenged aspects of the recovery plan, including the alleged failure to address the effects of climate change on cold water habitat, were discretionary.) The court, however, granted the plaintiffs leave to amend their complaint to assert additional facts that would demonstrate a violation of a nondiscretionary duty. A claim under the Administrative Procedure Act was dismissed with prejudice. Friends of the Wild Swan v. Thorson, No. 3:16-cv-00681-AC (D. Or. June 1, 2017).
New Jersey Appellate Court Affirmed State Authority to Take Easements for Coastal Protection Projects
The New Jersey Appellate Division ruled that the New Jersey Department of Environmental Protection (NJDEP) had authority to condemn private property to take perpetual easements for shore protection purposes and that the easements could allow public access to, and use of, the areas covered by the easements. The court held that NJDEP had acted within its authority when it acquired property interests to construct a dune and berm system along Long Beach Island and along 14 miles of coastline in northern Ocean County after Superstorm Sandy. State of New Jersey v North Beach 1003, LLC, Nos. A-3393-15T4 et al. (N.J. App. Div. June 22, 2017).
Washington Appellate Court Said Climate Goals in County’s Shoreline Master Program Were Not Unconstitutionally Vague
The Washington Court of Appeals upheld Jefferson County’s 2014 Shoreline Master Program, which is a combination of planning policies and development regulations that address shoreline uses and development. One party challenging the Master Program—Citizen’s Alliance for Property Rights Jefferson County (CAPR)—had argued that a provision in the Master Program goals section addressing climate change and sea-level rise was unconstitutionally vague. The court said that the Master Program guidelines acknowledged that policy goals might not be achievable and should only be pursued via development regulations that would unconstitutionally infringe on private property rights. The court rejected the argument that the provisions were vague and held that “CAPR’s mere assertions that the Master Program will be administered arbitrarily or capriciously are speculative and do not meet CAPR’s burden of proof to establish that the Master Program is unconstitutionally vague.” Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, No. 47641-0-II (Wash. Ct. App. June 20, 2017).
New York Trial Court Set Parameters for Exxon’s Compliance with Attorney General’s Climate Change Investigation
At a hearing on June 16, 2017, the New York Supreme Court indicated that the New York Attorney General could conduct interrogatories and depositions in its investigation of Exxon Mobil Corporation’s (Exxon’s) climate change-related disclosures but that the court would not require Exxon to respond to the attorney general’s second round of document requests. The court ordered Exxon to produce four witnesses to testify about their compliance with the attorney general’s earlier document requests, to produce an employee of a federal subsidiary for a deposition, and to update production of documents in accordance with the attorney general’s requests through 2016. The court indicated that the attorney general had broad power to propound the interrogatories. The court, which issued its orders in response to motions to quash (by Exxon) and to compel (by the attorney general), indicated that the matter should be taken to the Appellate Division if the parties disagreed with the scope of compliance with the attorney general’s subpoenas that the court was ordering. People v. PricewaterhouseCoopers LLP, No. 451962/2016 (N.Y. Sup. Ct. June 16, 2017).
In Dismissing Challenge to Six Flags Solar Facility, New Jersey Court Said Township Appropriately Considered Benefits of Renewable Energy
A New Jersey Superior Court dismissed a challenge to municipal approvals for a 21 megawatt solar array on 67 acres owned by Six Flags Theme Parks, Inc. at its theme park in Jackson Township in Ocean County. The plaintiffs alleged that land use ordinances that permitted the solar array conflicted with the Jackson Township’s Master Plan. The court noted that the solar array would meet substantially all of the Six Flags theme park’s energy needs and reduce reliance on carbon-emitting sources of power. The court found that the ordinances were substantially consistent with the objectives and goals of the Master Plan. Although the court said the plaintiffs had put forward compelling arguments against the solar arrays, the court noted that the Township had weighed the “need for energy independence and the reduction of carbon emissions as legitimate objectives of zoning.” The court further found that the use of solar energy was “an inherently beneficial use, which is of value to the community, serves a public good, and promotes public welfare.” The court also found that use of the land for solar arrays was consistent with “a natural use of the land” and that it was “within the prerogative of the legislative body to consider the environmental advantage of renewable solar energy and to balance that against other environmental impacts.” Clean Water Action v. Jackson Township Council, No. L-001251-15 (N.J. Super. Ct. June 19, 2017).
Climate Activist Convicted and Sentenced for “Valve Turning”
On June 7, 2017, a Washington state court jury convicted climate change activist Kenneth Ward of second-degree burglary but could not reach a verdict on a related sabotage charge in connection with Ward’s breaking into an oil pipeline facility and turning off a valve to shut off the pipeline. In a press release after the verdict, the Climate Disobedience Action Fund said: “There is no dispute about the facts in the case. Ward freely admits he closed an emergency valve on a tar sands pipeline to prevent harm to the climate, as part of a coordinated action in four states .… What is disputed is whether it is just or legal to convict Ward of felony crimes for acting peacefully and responsibly to prevent greater harm to the climate.” The press release noted that the court did not allow Ward to present a “necessity defense” to justify his actions with evidence regarding climate change-related harms stemming from the tar sands. On June 23, 2017, the court sentenced Ward to two days in custody (which he had already served), 30 days of community service, and six months of community supervision. The Climate Disobedience Action Fund’s press releaseindicated that the State would not re-file the sabotage charge and that the State could still file for restitution. People v. Ward, No. 16-1-01001-5 (Wash. Super. Ct. verdict June 7, 2017; sentencing June 23, 2017).
NEW CASES, MOTIONS, AND NOTICES
Environmental Groups Challenged Delay in Enforcement of Landfill Methane Regulations
Natural Resources Defense Council (NRDC), Clean Air Council, and Clean Wisconsin filed a petition seeking review of EPA’s administrative stay of performance standards and emission guidelines for municipal solid waste landfills. The standards and guidelines were published on August 29, 2016. In a letter dated May 5, 2017, EPA announced the commencement of a reconsideration proceeding for six elements of the regulations. EPA published notice of the administrative stay on May 31, 2017, stating that it was necessary to stay the regulations in their entirety because provisions that were a subject of the reconsideration proceeding were integral to how the rules functioned as a whole. Natural Resources Defense Council v. Pruitt, No. 17-1157 (D.C. Cir., filed June 15, 2017).
Environmental Groups Said California Water Diversion Project Would Increase Water Temperatures and Harm Threatened Delta Smelt
A San Francisco-based conservation group, along with NRDC and Defenders of Wildlife, filed a lawsuit in the federal district court for the Northern District of California challenging a biological opinion prepared under the Endangered Species Act for the California WaterFix project. The proposed project involves construction of three new water intakes to divert water from the Sacramento River. The plaintiffs asserted that WaterFix was “the latest in a long line of water diversion projects and policies” that have had “devastating effects” on the threatened Delta Smelt, a small fish that lives only in San Francisco Bay/Sacramento-San Joaquin River Delta. The plaintiffs claimed that the U.S. Fish and Wildlife Service’s biological opinion’s conclusion that WaterFix would not jeopardize the survival and recovery of the Delta Smelt or cause adverse modification of its designated critical habitat was contrary to evidence in the record, including evidence that in combination with the likely effects of climate change, WaterFix was likely to result in increased water temperatures in the Delta that would decrease the size of Delta Smelt and increase mortality rates. Bay.org d/b/a The Bay Institute v. Zinke, No. 3:17-cv-03739-SK (N.D. Cal., filed June 29, 2017).
Center for Biological Diversity Asked Court to Compel FOIA Response Regarding Federal Coal Program
The Center for Biological Diversity filed a lawsuit seeking to compel the U.S. Bureau of Land Management to respond to the Center’s Freedom of Information Act (FOIA) request for communications and records related to federal lands coal policy. The lawsuit was filed in the federal district court for the District of Columbia. Department of the Interior Secretarial Order No. 3338 in 2016 ordered a programmatic environmental review of the federal coal program and place a moratorium on federal coal leasing pending completion of the review. Secretary of the Interior Ryan Zinke revoked the order. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:17-cv-01208-BAH (D.D.C., filed June 20, 2017).
Exxon Said Federal Court Should Not Dismiss Its Constitutional Claims Against Attorneys General
Exxon Mobil Corporation (Exxon) argued to the federal district court for the Southern District of New York that its lawsuit against the attorneys general of New York and Massachusetts to bar their investigations into Exxon’s climate change-related disclosures should not be dismissed. Exxon argued that its constitutional claims were ripe, and that the “exceptionally narrow” Colorado River abstention doctrine was not justified because there was no pending state court proceeding that could result in comprehensive disposition of the litigation. Exxon also said the “narrow” decision in a pending Massachusetts state court action did not preclude its federal claims and that Massachusetts Attorney General Healey was subject to the court’s jurisdiction. Exxon said dismissal would “set a precedent with nationwide consequences” by “granting state officials license to harass perceived political opponents unimpeded by review in federal courts.” Exxon Mobil Corp. v. Schneiderman, No. 1:17-cv-02301-VEC (S.D.N.Y. June 16, 2017).
University of California Regents Filed Lawsuit Challenging Termination of Wildfire Mitigation Grants
The Regents of the University of California filed a lawsuit against the Federal Emergency Management Agency (FEMA) and other parties after FEMA terminated three of four grants awarded in 2015 for hazardous fire risk reduction in the East Bay Hills, California. The Regents alleged that the final environmental impact statement (FEIS) for the grant applications had concluded that failure to move forward with all four of the grants would result in adverse impacts including climate impacts. The Regents said the FEIS indicated that supplemental environmental review should be conducted should FEMA decide not to fund all four applications. The Regents asserted that the defendants had violated the National Environmental Policy Act by failing to prepare a supplemental environmental impact statement. The Regents also asserted that the defendants’ amendment of the Record of Decision violated the Administrative Procedure Act and that the defendants had violated regulations issued under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988. Regents of University of California v. Federal Emergency Management Agency, No. 3:17-cv-03461 (N.D. Cal., filed June 14, 2017).
States, New York City, and Environmental Groups Filed Lawsuits Challenging Department of Energy’s Failure to Publish Energy Efficiency Standards
Eleven states and New York City filed a complaint in the federal district court for the Northern District of California challenging the U.S. Department of Energy’s (DOE’s) failure to publish final energy efficiency standards for five categories of appliances and industrial equipment: portable air conditioners, uninterruptible power supplies, air compressors, walk-in coolers and freezers, and commercial packaged boilers. A second lawsuit challenging the failure to publish final standards was filed by NRDC, Sierra Club, and Consumer Federation of America. The states and New York City said that DOE’s failure to publish the final standards “directly harms Plaintiffs’ interests by adversely impacting the environment, consumers, economies, public health, natural resources, energy efficiency strategies, and climate change reduction goals of each Plaintiff.” They alleged that the standards could reduce annual greenhouse gas emissions by more than 26 million metric tons and save $24 billion over 30 years. The state-New York City plaintiffs contended that DOE had violated the Energy Policy and Conservation Act (EPCA) by failing to take required non-discretionary actions related to the standards and by failing to meet deadlines prescribed by EPCA. They also asserted that DOE had violated the Administrative Procedure Act (APA) and the Federal Register Act by failing to timely publish the standards. The environmental and consumer groups asserted that DOE had violated EPCA, the APA, and the Federal Register Act by failing to submit the standards for publication in the Federal Register and had failed to meet statutory deadlines for issuing standards for uninterruptible power supplies and walk-in coolers and freezers. The relief sought by the plaintiffs included an order compelling DOE to send the new standards to the Office of Federal Register for immediate publication. California v. Perry, No. 4:17-cv-03406 (N.D. Cal., filed June 13, 2017); Natural Resources Defense Council v. Perry, No. 3:17-cv-03404 (N.D. Cal., filed June 13, 2017).
Federal Government Moved to Dismiss Keystone Pipeline Challenges
The federal government filed motions to dismiss the lawsuits challenging the presidential permit for Keystone XL pipeline. In one case, brought by two groups representing indigenous peoples and conservation interests, the federal government argued that the court lacked jurisdiction to review issuance of a presidential permit. In addition, the government argued that the plaintiffs lacked standing to make their Endangered Species Act (ESA) claim as well as claims under the Migratory Bird Treaty Act (MBTA) and the Bald Eagle and Golden Eagle Protection Act (Eagle Act). The government also asserted that the MBTA and Eagle Act claims were barred by controlling precedent. In the second case, brought by local and national environmental groups, the government also argued that the court lacked jurisdiction to review issuance of a presidential permit and that claims against the U.S. Bureau of Land Management should be dismissed because there was no final agency action and because they had not alleged standing for their claim under the ESA. Northern Plains Resource Council v. Shannon, No. 4:17-CV-00031-BMM (D. Mont. June 9, 2017); Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029-BMM (D. Mont. June 9, 2017).
Plaintiffs Said Fish and Wildlife Service Misconstrued Evidence of Potential Climate Change Impacts on Yellowstone Bison in Rejecting Listing Petition
Plaintiffs filed a motion for summary judgment in their lawsuit in the federal district court for the District of Columbia claiming that the U.S. Fish and Wildlife Service (FWS) had improperly decided not to conduct a comprehensive status review of the Yellowstone bison pursuant to the ESA. The plaintiffs argued that FWS’s 90-day finding on their petition to list the Yellowstone bison distinct population segment did not follow the statutory requirements of the ESA, misconstrued and was often contrary to the evidence before the agency, failed to use the best available science, and was not supported by an explanation of FWS’s underlying analysis or rationale. The plaintiffs argued, among other things, that FWS had misstated and misconstrued evidence in their petition regarding climate change’s potential large-scale impacts on bison dispersal patterns. The plaintiffs said climate change could pose risks to the demographic and genetic composition and integrity of the Yellowstone bison, which the plaintiffs asserted were the only significant population of non-hybridized bison. Buffalo Field Campaign v. Zinke, No. 1:16-cv-1909-CRC (D.D.C. June 9, 2017).
Environmental Groups Filed NEPA Challenge of Montana Coal Mine Expansion
WildEarth Guardians and Montana Environmental Information Center filed a lawsuit in the federal district court for the District of Montana challenging the approval of a mining plan modification for the Spring Creek Mine in southeastern Montana, the seventh largest coal strip-mine by production in the United States. The plaintiffs asserted that the federal defendants had violated the National Environmental Policy Act (NEPA) by failing to fully disclose the environmental impacts of coal mining, including the indirect effects of coal transportation, air pollution and greenhouse gas pollution from coal combustion, and the cumulative impacts of another mining plan modifications and a separate coal lease at the mine. The plaintiffs also said the underlying coal lease might be void as a matter of law because it was approved by a field manager who did not have authority to approve the lease. WildEarth Guardians v. Zinke, No. 1:17-cv-00080 (D. Mont., filed June 8, 2017).
Groups Cited Public Health and Climate Benefits of Nutrition Labeling Rules in Challenge to Federal Delay in Implementation
A non-profit organization “dedicated to obtaining a healthier food system” and a consumer advocacy group brought a lawsuit against the Secretary of Health and Human Services, the U.S. Food and Drug Administration (FDA), and the FDA commissioner challenging a rule that delayed implementation of nutrition labeling requirements for chain restaurants and similar food establishments. The plaintiffs contended that FDA did not provide a rationale for the rule instituting the delay and had not complied with rulemaking procedures, in violation of the Administrative Procedure Act. The plaintiffs alleged that the labeling rules could “reduce the environmental degradation associated with food production and disposal.” They asserted that “[r]oughly 40 percent of U.S. food is wasted, and food waste decomposing in landfills releases gases that contribute to climate change,” and that nutrition labeling rules “contributes to closing the gap between the amount of food consumers order and the amount they eat, thereby reducing the quantity of wasted food and limiting associated environmental harm.” Center for Science in the Public Interest v. Price, No. 1:17-cv-01085 (D.D.C., filed June 7, 2017).
States, D.C., Chicago Threatened Lawsuit Against EPA for Failing to Regulate Methane from Existing Oil and Gas Sources
On June 29, 2017, 14 states, the District of Columbia, the City of Chicago, and the California Air Resources Board sent a notice of intent to sue under the Clean Air Act to EPA for failing to establish guidelines limiting methane emissions from existing sources in the oil and natural gas sector. They contended that EPA’s promulgation of methane standards for new oil and gas sources pursuant to Section 111(b) of the Clean Air Act triggered a mandatory duty to issue guidelines for existing sources under Section 111(d). They noted that EPA had taken an initial step towards developing such guidelines by issuing an information collection request (ICR) in November 2016. The ICR sought information on the types of equipment at production facilities as well as information on sources of methane emissions at oil and gas facilities and emissions control devices or practices in place at such facilities. On March 2, 2017, EPA withdrew the ICR. The states and other parties asked EPA to reconsider the withdrawal of the ICR and reissue it or to otherwise explain how it would fulfill its legal obligation to address methane pollution. Clean Air Act Notice of Intent to Sue for Failure to Establish Guidelines for Standards of Performance for Methane Emissions from Existing Oil and Gas Operations under Clean Air Act Section 111(d) (June 29, 2017).
ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART
Austria’s Constitutional Court Reversed Lower Court Decision That Held Up Airport Expansion Based on Climate Change Concerns
The Austrian Constitutional Court overturned the Federal Administrative Court’s decision that blocked the government of Lower Austria’s approval of construction of a third runway at Vienna’s main airport. The Austrian Constitutional Court cited multiple errors that led the lower court to improperly give weight to climate change and land use considerations in the balancing test it used to consider the public’s interest in a third runway. The errors identified by the Constitutional Court included:
- misconstruing the Air Traffic Law’s instruction to consider environmental protection over-broadly by factoring in environmental impacts beyond those directly attributable to air traffic;
- wrongly including in emissions projections aircraft emissions attributable to flight segments other than landing and takeoff;
- improperly superimposing regional greenhouse gas emissions reduction targets on an analysis of legal rights and obligations under the federal Air Traffic Law; and
- misapplication of the Kyoto Protocol and Paris Agreement, which the Constitutional Court explained are the source of international obligations for Austria but are not generally applicable in the domestic legal context (“sie erzeugen daher nur eine völkerrechtliche Verpflichtung Österreichs und sind innerstaatlich nicht unmittelbar anwendbar”).
In re Vienna-Schwechat Airport Expansion (Austrian Constitutional Court, June 29, 2017).
