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.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 101.
FEATURED CASE
D.C. Circuit Said FERC Needed to Provide More Information on Pipelines’ Downstream Greenhouse Gas Emissions—Or Explain Why It Couldn’t
In a split opinion, the D.C. Circuit Court of Appeals found that the environmental impact statement (EIS) prepared by the Federal Energy Regulatory Commission (FERC) for the Southeast Market Pipelines Project did not contain enough information on the greenhouse gas emissions that would result from combustion of the gas that the project would carry. When completed, the project—which comprises three interstate natural-gas pipelines in the southeastern United States—would be able to carry one billion cubic feet of natural gas per day. The D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible” because it was reasonably foreseeable that the transported gas would be burned in Florida power plants. The court distinguished its conclusion in earlier cases that FERC had no legal authority to consider the environmental effects of natural gas that would be exported from the liquefied natural gas (LNG) facilities it authorized. The D.C. Circuit said that while FERC was forbidden from relying on the environmental effects of gas exports as a justification for denying an upgrade license for an LNG facility, FERC’s authority over pipelines permitted FERC to deny a pipeline certificate on the ground that it would be too harmful to the environment. The D.C. Circuit also was not persuaded by FERC’s “practical objection” regarding the impossibility of knowing “exactly what quantity of greenhouse gases will be emitted as a result of this project being approved.” The court said FERC should have either made a quantitative estimate of downstream greenhouse gas emissions or “explained more specifically” why it could not do so. The court also indicated that the fact that downstream emissions might be offset by reductions elsewhere (from the retirement of coal-fired plants, for example) did not excuse FERC from making emissions estimates. In response to petitioner Sierra Club’s argument that FERC should use the Social Cost of Carbon to convert emissions estimates to concrete harms, the D.C. Circuit directed FERC to explain in the EIS whether it would adopt the position it took in the EIS for an LNG terminal that the Social Cost of Carbon was not useful for purposes of environmental review under the National Environmental Policy Act. In addition to its holdings regarding FERC’s greenhouse gas emissions analysis, the D.C. Circuit also determined as a threshold matter that the petitioners had standing to challenge all three segments of the pipeline project, not just the segment alleged to have caused an injury-in-fact and upheld other aspects of FERC’s environmental review. Judge Janice Rogers Brown dissented on the issue of downstream emissions, writing that in her view such emissions did not need to be considered because FERC did not control whether the greenhouse gas emissions would occur. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Aug. 22, 2017).
DECISIONS AND SETTLEMENTS
Montana Federal Court Found NEPA Review of Coal Mine Expansion Should Have Included Downstream Greenhouse Gases
The federal district court for the District of Montana ruled that the U.S. Office of Surface Mining Reclamation and Enforcement’s (OSM’s) environmental review of a proposed federal mining plan modification for expansion of underground coal mining operations was not sufficient. The court found that OSM failed to take a hard look at indirect and cumulative effects of coal transportation and combustion and at foreseeable greenhouse gas emissions. Although OSM calculated the greenhouse gas emissions associated with coal transportation, the court found that it had not considered other reasonably foreseeable environmental impacts for which analysis would be “possible and not merely speculative.” With respect to greenhouse gas emissions from coal combustion, the court found that OSM’s quantification of such emissions was not sufficient, and that OSM should also have quantified the economic costs associated with emissions since it had quantified the modification’s economic benefits. The Court also found that OSM should have considered non-greenhouse gas pollution associated with combustion. In addition, the court said OSM had improperly decided not to prepare an EIS despite “significant uncertainty about the critical issues,” citing OSM’s failure to adequately evaluate the plan modification’s “context” beyond the local and regional levels and its failure to consider the plan modification’s coal transportation and air pollution effects in its “intensity” analysis. Montana Environmental Information Center v. U.S. Office of Surface Mining, No. 9:15-cv-00106-DWM (D. Mont. Aug. 14, 2017).
D.C. Circuit Upheld Department of Energy’s Environmental Review for Authorization of LNG Exports from Texas Terminal
The D.C. Circuit Court of Appeals upheld the U.S. Department of Energy’s (DOE) authorization of the export of liquefied natural gas (LNG) from the Freeport Terminal on Quintana Island in Texas, rejecting claims that DOE had not sufficiently examined environmental impacts under the National Environmental Policy Act (NEPA) or fulfilled its obligations under the Natural Gas Act. The court ruled that DOE had provided a “reasoned explanation as to why it believed the indirect effects pertaining to increased gas production were not reasonably foreseeable” and had not failed to comply with NEPA “by declining to make specific projections about environmental impacts stemming from specific levels” of increased production. Similarly, the court found that DOE was not required to make specific projections about the indirect effects of a potential switch in the U.S. power sector from gas to coal in response to higher gas prices due to increased exports. The court also found that DOE had adequately considered the potential greenhouse gas emissions resulting from the indirect effects of exports, noting that DOE had evaluated the upstream and downstream emissions of carbon dioxide and methane from producing, transporting, and exporting LNG in a “Life Cycle Report” commissioned by DOE to supplement the EIS prepared by FERC. (The D.C. Circuit said DOE “plainly relie[d]” on the Life Cycle Report and another supplemental report to justify its hard look. The D.C. Circuit therefore considered both supplemental reports to be part of DOE’s environmental review even though DOE argued that it complied with NEPA by adopting FERC’s EIS.) The court was not persuaded that DOE was required to consider the cumulative impacts of other pending and anticipated LNG export approvals. The court also upheld DOE’s “public interest,” finding under the Natural Gas Act, rejecting contentions that DOE had failed to thoroughly consider environmental concerns. Sierra Club v. U.S. Department of Energy, No. 15-1489 (D.C. Cir. Aug. 15, 2017).
Ninth Circuit Upheld Determination That Desert Eagles Were Not a Distinct Population Segment Eligible for Listing Under Endangered Species Act
The Ninth Circuit Court of Appeals upheld the U.S. Fish and Wildlife Service’s (FWS’s) determination that the Sonoran Desert Area bald eagle was not a distinct population segment (DPS) eligible for listing under the Endangered Species Act. The Ninth Circuit held that the FWS had reasonably concluded that though the unusual characteristics of the desert eagle population segment satisfied the “persistence” factor for significance, those characteristics did not necessarily require a conclusion that the population segment was ecologically or biologically significant for the bald eagle taxon as a whole. The Ninth Circuit also held that the FWS had reasonably found that extirpation of the desert eagle population segment would not create a significant gap in the range of the taxon. The Ninth Circuit also rejected the argument that the FWS had ignored climate change as a factor for determining the desert eagles’ significance to the taxon, finding that the FWS “directly addressed climate change” and concluded that the best information available indicated that climate change was not a significant threat to the bald eagle. Center for Biological Diversity v. Zinke, No. 14-17513 (9th Cir. Aug. 28, 2017).
D.C. Circuit Denied Intervenors’ Requests for Rehearing of Decision Vacating Stay of Methane Rule for Oil and Gas Facilities
The D.C. Circuit Court of Appeals denied petitions for rehearing en banc of its decision vacating the U.S. Environmental Protection Agency’s (EPA’s) administrative stay of methane standards for oil and gas sector. The petitions were filed by intervenor-respondents, not by EPA. The order denying rehearing indicated that Judges Henderson, Brown, and Kavanaugh would have granted the petitions. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. Aug. 10, 2017).
D.C. Circuit Vacated EPA Requirement to Replace HFCs
In a split opinion, the D.C. Circuit Court of Appeals ruled that EPA lacked authority to issue a 2015 rule restricting manufacturers from making certain products containing hydrofluorocarbons (HFCs). Because HFCs were greenhouse gases that contribute to climate change, EPA removed certain HFCs from a list of safe substitutes created pursuant to Section 612 of the Clean Air Act, which requires manufacturers to replace ozone-depleting substances with safe substitutes. EPA added the HFCs, which are not ozone-depleting substances, to a list of prohibited substitutes. EPA said Section 612 gave EPA authority to prohibit manufacturers that had replaced ozone-depleting substances with HFCs previously on the safe substitutes list from making products containing the now-prohibited HFCs. The D.C. Circuit found that EPA’s “novel reading” of Section 612 was “inconsistent with the statute as written” because it stretched the meaning of “replace” beyond its ordinary meaning. The D.C. Circuit said manufacturers “replace” an ozone-depleting substance only once—when they transition to making the same product with a substitute substance. The court said EPA’s reading of “replace,” in which manufacturers continue to “replace” the ozone-depleting substance every time the substitute is used, would render EPA’s authority “boundless” and that such an interpretation “borders on the absurd.” The D.C. Circuit did, however, uphold EPA’s decision to remove the HFCs from the list of safe substitutes. The court also said EPA did not “squarely articulate” an alternative “retroactive disapproval” rationale for requiring manufacturers to replace HFCs, and said that EPA would have to justify such an approach on remand if it chose to rely on it. Judge Robert L. Wilkins dissented from the conclusion that Section 612 unambiguously prohibited EPA from requiring replacement of the HFCs. In his view, the statutory provision was ambiguous and EPA’s interpretation of the statutory scheme was reasonable. Mexichem Fluor, Inc. v. EPA, No. 15-1328 & 15-1329 (D.C. Cir. Aug. 8, 2017).
D.C. Circuit Continued to Hold Clean Power Plan and NSPS Cases in Abeyance
On August 8, 2017, the D.C. Circuit ordered—on its own motion—that challenges to the Clean Power Plan continue to be held in abeyance for 60 more days and that EPA continue filing status reports at 30-day intervals. Five days earlier, public health and environmental organizations that had intervened as respondents asked the court to decide the case on the merits or terminate it by remanding the case to EPA. They said EPA’s classification of its Clean Power Plan review as a “Long Term Action” in the Trump administration’s Current Unified Agenda of Regulatory and Deregulatory Actions indicated a proposed rule might be delayed for at least another year. On August 10, the D.C. Circuit ordered—again on its own motion—that the cases challenging the carbon dioxide standards for new, modified, and reconstructed power plants (NSPS) remain held in abeyance pending further order of the court, with status reports to be filed at 90-day intervals. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. Aug. 8, 2017); North Dakota v. EPA, Nos. 15-1380 et al. (D.C. Cir. Aug. 10, 2017).
Virginia Federal Court Dismissed FOIA Lawsuit Seeking State Department Correspondence About Climate Change
The federal district court for the Eastern District of Virginia ruled in favor of the U.S. Department of State in a Freedom of Information Act (FOIA) lawsuit brought by two organizations that sought correspondence between five State Department employees and environmental organizations and the employees’ correspondence containing the following terms: global warming, climate change, Paris, UNCCC, UNFCC, Kyoto, and APEC. The court’s decision addressed one plaintiff’s motion for summary judgment challenging redactions in 10 documents produced by the State Department and the State Department’s cross-motion for summary judgment. The plaintiff contended that the 10 documents were a small sample of unjustified redactions and partial withholdings representing improper application of FOIA Exemptions 1 (for classified material), 5 (for predecisional intra- or inter-agency documents), and 6 (for personnel and medical files that would constitute an invasion of privacy). The court found that the State Department had provided sufficient information about documents withheld pursuant to Exemption 1 to demonstrate that they were properly encompassed by the exemption and that the timing of the State Department’s classification of the information as confidential was not automatically invalid based on its timing. The court also rejected challenges to redactions based on Exemption 5. The redacted information in one document related to formulating a response to a foreign official and to internal discussions about possible topics for a future meeting; redacted information in a second document was a draft list of names of “possible validators of … climate change work.” A third document redacted discussions of potential State Department engagement with congressional staff. The court also concluded that documents were properly redacted based on Exemption 6 to exclude private and personal conversation between two individuals concerning career matters, the draft climate change “validators” list, and a summary of conversations between a private individual and Indian officials. The court also ruled that the second plaintiff could not file an additional motion for summary judgment and that this opinion therefore concluded the case. Energy & Environment Legal Institute v. U.S. Department of State, No. 1:15-cv-00423-LO-TCB (E.D. Va. Aug. 28, 2017).
Nevada Federal Court Rejected Claims of Inadequate Consideration of Climate Change for Water Pipeline
The federal district court for the District of Nevada largely upheld approvals for the first phase of “a massive water-redistribution pipeline” intended to carry millions of gallons of water to Nevada’s most populous county, including by rejecting the plaintiff’s argument that the U.S. Bureau of Land Management (BLM) did not take a hard look at the extent to which climate change might amplify the project’s environmental impacts. The court found that BLM adequately considered climate change impacts by generally considering global climate change and regional climate change trends. The court rejected the plaintiffs’ contention that BLM’s assessment should have included specific climate change data, finding that the plaintiffs had failed to point to any “hard data” that BLM should have included in its analysis. The court also agreed with BLM that new climate change studies indicating an increased risk of drought in the Southwest did not warrant preparation of a supplemental EIS. The court concluded that the studies provided “no new, raw data about how climate change might affect the pipeline’s environmental impact” and that BLM had already qualitatively considered the studies’ conclusions in its EIS. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 2:14-cv-00226 (D. Nev. Aug. 23, 2017).
D.C. Federal Court Upheld NOAA’s Withholding of Predecisional Documents Related to “Hiatus Study”
The federal district court for the District of Columbia granted summary judgment to the U.S. Department of Commerce in a FOIA lawsuit seeking documents in the possession of the National Oceanographic and Atmospheric Administration (NOAA) related to a study by several NOAA scientists known as the “Hiatus Paper.” The Hiatus Paper found that recent ocean surface temperature increases were greater than other studies had indicated, and that there had been no “hiatus” in ocean warming as some had argued. The court’s decision concerned three sets of documents withheld by NOAA under FOIA’s Exemption 5 for inter-agency or intra-agency memorandums or letters—drafts of the Hiatus Paper, internal correspondence among NOAA scientists about the Hiatus Paper, and outside peer reviewer comments. The court rejected the plaintiff’s contention that the withheld documents were not within Exemption 5’s scope because they concerned science, not policy. The district court said D.C. Circuit precedent resolved this question in NOAA’s favor. The court also found that the plaintiff had not presented evidence “sufficient to raise the specter of such nefarious government misconduct” as would be required to override Exemption 5. (The court also noted that the D.C. Circuit had never held that government misconduct could abrogate Exemption 5.) The district court also found that the Department of Commerce had adequately alleged that it had released all reasonably segregable material and that the plaintiff had provided no evidence to contradict those allegations. Judicial Watch, Inc. v. U.S. Department of Commerce, No. 1:15-cv-02088-CRC (D.D.C. Aug. 21, 2017).
South Carolina Federal Court Ordered Removal of Sea Walls That Interfered with Sea Turtle Nesting
The federal district court for the District of South Carolina granted a motion for a preliminary injunction and ordered that temporary sea walls be removed from beaches in South Carolina and remain removed during the nesting period of sea turtles. The court found that the plaintiffs were likely to succeed on their argument that the sea walls interfered with the nesting activities of endangered sea turtles and that the state authorization of the sea walls constituted a “take” under the Endangered Species Act. The court also found that the plaintiffs had established irreparable harm; that the balance of the equities tipped in their favor (here, the court said it was skeptical that the sea walls effectively prevented erosion); and that an injunction would be in the public interest. The court also denied a motion to dismiss, finding that dismissal on Burford abstention grounds due to ongoing state administrative proceedings was not justified. The court said that although “protecting coastal real estate from sea level rise and extreme climate events such as hurricanes is an important state policy,” abstention was not required merely because resolution of the federal question would result in overturning state policy. The court found that the defendants’ attempt to frame the issue as a local matter fell short since protection of endangered species was a matter of national concern. Sierra Club v. Von Kolnitz, No. 2:16-cv-03815-DCN (D.S.C. Aug. 14, 2017).
Federal Court Said Bureau of Reclamation Considered Climate Change-Induced Turbidity in Review of Water Transfer Project
The federal district court for District of Columbia ruled that the Bureau of Reclamation had “finally done its work” of examining the potential impacts of the Northwest Area Water Supply Project (NAWS), the goal of which was to provide water from Lake Sakakawea in the Missouri River Basin to communities in need of water in North Dakota, which is in the Hudson River Basin. The court rejected an argument by the Province of Manitoba that a supplemental EIS prepared by the Bureau in 2015 did not adequately consider a climate change-induced increase in turbidity in the waters of Lake Sakakawea. The court said this argument arose from a “scientific disagreement as to the nature and impact” of the turbidity in the environment, not from a failure by the Bureau to consider the issue. Government of Province of Manitoba v. Zinke, Nos. 02-2057 & 09-373 (D.D.C. Aug. 10, 2017).
West Virginia Federal Court Remanded Murray Energy Defamation Action to State Court
The federal district court for the Northern District of West Virginia remanded to state court a defamation action brought against John Oliver, the host of Last Week Tonight with John Oliver, by the coal company Murray Energy Corporation (Murray Energy); Robert E. Murray, the founder, chairman, president, and chief executive officer of Murray Energy; and affiliated companies of which Mr. Murray was the president, CEO, and sole director (the affiliated companies). The other defendants included Home Box Office, Inc. (HBO), a Delaware corporation, which broadcasts Last Week Tonight. The plaintiffs alleged that the defendants were “persons and organizations fundamentally opposed to any revitalization of the coal industry, having described coal as ‘environmentally catastrophic.’” The plaintiffs further alleged that in a June 2017 episode of Last Week Night the defendants knowingly broadcast malicious statements that they knew to be false based on information provided by the plaintiffs. The statements that the plaintiffs alleged were defamatory included statements indicating that Mr. Murray had no evidence to support his assertion that an earthquake caused a mine collapse that killed nine people; a statement that Mr. Murray and Murray Energy “appear to be on the same side as black lung” and that their position on a coal dust regulation was the equivalent of rooting for bees to kill a child; and a description of Mr. Murray as looking “like a geriatric Dr. Evil.” The plaintiffs also asserted that the allegedly defamatory statements constituted false light invasion of privacy and that defendants intentionally inflicted emotional distress upon Mr. Murray. After the defendants removed the action to federal court on diversity jurisdiction grounds, the federal court remanded, rejecting the defendants’ argument that the affiliated companies—which, like HBO, are Delaware corporations—had been fraudulently joined to defeat diversity jurisdiction. The court found that defamatory statements made about an executive of a business could be sufficient to defame the business where the statements were made about the executive in his professional capacity and reflected negatively on the operation of the business. The court therefore found that there existed “a glimmer of hope” that the affiliated companies would establish a cause of action and that diversity jurisdiction therefore was destroyed. Marshall County Coal Co. v. Oliver, No. 5:17-cv-00099-JPB (N.D. W. Va. Aug. 10, 2017); Marshall County Coal Co. v. Oliver, No. 17-C-124 (W. Va. Cir. Ct., filed June 21, 2017).
FERC Declined to Stay Atlantic Sunrise Pipeline Project; Rehearing Requests Still Pending
FERC denied requests for a stay of its February 3, 2017 order authorizing construction and operation of the Atlantic Sunrise pipeline project. FERC said the parties requesting the stay had not established that they would suffer irreparable harm. FERC noted that it had yet to consider the merits of any requests for rehearing. Parties had argued that flaws in FERC’s review of the pipeline project included failure to address downstream greenhouse gas impacts. In re Transcontinental Gas Pipe Line Co., No. CP15-138 (FERC Aug. 31, 2017).
New York Denied Water Quality Certificate for Pipeline Project, Citing D.C. Circuit Decision Requiring Consideration of Downstream Greenhouse Gas Emissions
The New York State Department of Environmental Conservation denied an application for a Water Quality Certificate under Section 401 of the Clean Water Act and state permits for a natural gas pipeline project. DEC said FERC’s environmental review of the project was inadequate due to the D.C. Circuit’s decision in Sierra Club v. FERC, No. __ (D.C. Cir. Aug. 22, 2017), in which the D.C. Circuit found that FERC should have considered the downstream greenhouse gas emissions from combustion of natural gas transported by another pipeline project. NYSDEC said FERC had not conducted such an analysis for New York pipeline project and that the D.C. Circuit’s decision was a material change in applicable law warranting denial of the application. NYSDEC also submitted a motion to FERC for reopening or rehearing and staying the project. In re Valley Lateral Project, No. 3-3399-00071/00001 (NYSDEC notice of decision Aug. 30, 2017).
NEW CASES, MOTIONS, AND NOTICES
State of Alaska and Trade Groups Sought Supreme Court Review of Bearded Seal Listing as Threatened Species
Petitioners led by the State of Alaska filed a petition for a writ of certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s decision upholding the listing of the bearded seal as a threatened species under the Endangered Species Act (ESA). Alaska Oil and Gas Association (AOGA) and American Petroleum Institute (API) filed a separate petition. The petitioners identified the question presented as whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” The State of Alaska petitioners argued that the case isolated a single legal issue of “critical importance regarding the reach of the ESA” and that the case provided “an ideal vehicle” for reviewing the issue because the National Marine Fisheries Service (NMFS) “based its listing decision entirely on the speculative, long-term effects of climate change on a healthy species,” the listing decision would take “a substantial, immediate toll on the State and its local population,” and the listing lacked positive conservation effects because NMFS “disclaimed any power to address the threat it purported to identify. The Alaska petitioners argued that NMFS had disregarded the statutory text and structure,” and that the agencies charged with implementing the ESA should not be allowed to “manhandle” the statute “to fit the square peg of climate change into the round hole of ESA regulation.” The Alaska petitioners said immediate review was necessary because neither the Ninth Circuit nor the D.C. Circuit was “likely to impose any effective limit on the listing of cold-weather species.” In their petition, AOGA and API argued that the Ninth Circuit’s interpretation of the ESA allowing such a listing was incompatible with standards established by the Supreme Court and the D.C. Circuit and contrary to the statute’s plain language. The petitioners said certiorari should be granted to address the “palpable consequences for both public and private entities” that the Ninth Circuit’s “lax standard” would have and that the bearded seal listing presented “the perfect vehicle to set the Ninth Circuit’s erroneous standard straight” because the National Marine Fisheries Service had “conceded that it has no data to make a concrete inference about how the bearded seal will react to climate change and proceeded to list as threatened a highly abundant species that has shown no population decline despite observed sea ice declines.” The Alaska Federal of Natives, Resource Development Council for Alaska, Alaska Chamber, U.S. Chamber of Commerce, and 18 states filed amicus briefs in support of the petitioners. Alaska v. Ross, No. 17-118 (U.S. cert. petition July 21, 2017); Alaska Oil & Gas Association v. Ross, No. 17-133 (U.S. cert. petition July 21, 2017).
Environmental Groups Sought Vacatur of EPA’s Administrative Stay of Landfill Methane Standards
Environmental groups asked the D.C. Circuit Court of Appeals to vacate EPA’s administrative stay of regulations restricting emissions of landfill gas (including methane) from municipal solid waste landfills. The plaintiffs called their case “a carbon copy” of Clean Air Council v. Pruitt, in which the D.C. Circuit vacated EPA’s administrative stay of regulations restricting emissions from the oil and gas sector. They argued that EPA’s administrative stay suffered from the same flaws as the administrative stay in that case, citing EPA’s failure to articulate any rationale for why reconsideration was mandatory for five of the six issues on which reconsideration was granted and the failure of the rationale for reconsideration of the sixth issue to meet statutory criteria for mandatory reconsideration. Natural Resources Defense Council v. Pruitt, No. 17-1157 (D.C. Cir. motion for summary vacatur Aug. 4, 2017).
Lawsuits Challenged Delisting of Yellowstone Grizzly Bears, Citing Climate Change Threats to Food Sources
Three lawsuits were filed in the federal district court for the District of Montana challenging the FWS decision to designate a Greater Yellowstone Ecosystem grizzly bear distinct population segment (DPS) and FWS’s related determination that the DPS was recovered and did not qualify as endangered or threatened under the Endangered Species Act. In its lawsuit, WildEarth Guardians contended that the FWS’s assessment of threats to the DPS was inadequate due to, among other reasons, its failure to account for climate change impacts on the grizzly bear’s habitat and food sources. The complaint filed by the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity, and National Parks Conservation Association also alleged that the FWS failed to address threats to Yellowstone grizzly bears, including their increasing reliance on a meat-based diet due in part to climate change impacts on food sources. The Humane Society of the United States and the Fund for Animals alleged in their complaint that the FWS had ignored best available science showing that climate change was and would continue to threaten the survival of grizzly bears in the Yellowstone area, including by posing threats to grizzly bears’ food sources and forcing grizzly bears to migrate outside their primary conservation area and to face “cascading threats.” Humane Society of the United States v. U.S. Fish & Wildlife Service, No. 9:17-cv-00117-DLC (D. Mont., filed Aug. 29, 2017); WildEarth Guardians v. Zinke, No. 9:17-cv-00118-DLC (D. Mont., filed Aug. 30, 2017); Northern Cheyenne Tribe v. Zinke, No. 9:17-cv-00119-DLC (D. Mont., filed Aug. 30, 2017).
Conservation Law Foundation Filed Lawsuit Alleging Shell Violated Clean Water Act by Failing to Prepare Providence Fuel Terminal for Climate Change
Conservation Law Foundation (CLF) filed a citizen suit against Shell Oil entities (Shell) alleging that they had failed to comply with the Clean Water Act and a Rhode Island Pollutant Discharge Elimination System permit at their bulk storage and fuel terminal in Providence, Rhode Island (Providence Terminal). CLF alleged that the Providence Terminal was “at risk from coastal flooding caused by sea level rise, increased and/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges—all of which will become, and are becoming, worse as a result of climate change.” CLF also alleged that the terminal’s location, elevation, and lack of preventative infrastructure made it “especially vulnerable to these risks” and that Shell Oil had not taken action to address these vulnerabilities at Providence Terminal, despite having “long been well aware” of climate change’s impacts and risks and having incorporated such risks in “ongoing company investments,” including projects off the coast of Nova Scotia and in the North Sea. CLF asserted that Shell’s “knowing disregard of the imminent risks” of climate change and failure to fortify the Providence Terminal against such risks constituted violations of the Clean Water Act. CLF identified 19 separate causes of action for violation of the Clean Water Act and sought civil penalties, environmental restoration and compensatory mitigation to address past violations, and declaratory and injunctive relief to prevent future violations. Conservation Law Foundation, Inc. v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. Aug. 28, 2017).
Peabody Energy Sought Dismissal of California County and City Lawsuits Against Fossil Fuel Companies; Defendants Removed Cases to Federal Court
On August 28, 2017, Peabody Energy Corporation (Peabody) asked the U.S. Bankruptcy Court for the Eastern District of Missouri to order San Mateo County, Marin County, and the City of Imperial Beach to dismiss complaints against Peabody filed in California Superior Court in July 2017. The Counties and City’s complaints sought relief from a number of fossil fuel companies, including Peabody, for alleged damage arising from climate change. Peabody—which emerged from bankruptcy in April 2017—argued that the complaints sought to “obliterate” Peabody’s “fresh start” by seeking damages and equitable relief based upon pre-bankruptcy petition conduct. Peabody asserted that the Counties and City’s claims were therefore discharged and enjoined pursuant to Peabody’s reorganization plan and the bankruptcy court’s confirmation order. In re Peabody Energy Corp., No. 16-42529-399 (Bankr. E.D. Mo. Aug. 28, 2017).
Earlier in August, defendants Chevron Corporation and Chevron U.S.A., Inc. (together, Chevron) removed all three of the actions to the federal district court for the Northern District of California. Chevron said all other defendants joined in or had consented to the notice of removal. Chevron also said the defendants would be moving “at the appropriate time” to dismiss the plaintiffs’ claims. Chevron asserted that though the complaint nominally asserted state law claims, it should be heard in a federal forum because there was federal question jurisdiction. Citing the Ninth Circuit’s opinion in Native Village of Kivalina v. ExxonMobil Corp., Chevron argued that “[r]eflecting the uniquely federal interests posed by greenhouse gas claims like these,” the Ninth Circuit had recognized “that causes of action of the types asserted here are governed by federal common law, not state law.” Chevron also said removal was also authorized because the action “necessarily raises disputed and substantial federal questions that a federal forum may entertain without disturbing a congressionally approved balance of responsibilities between the federal and state judiciaries”; because the Clean Air Act and other federal statutes and the U.S. Constitution completely preempted the plaintiffs’ claims; because the action arose under the Outer Continental Shelf Lands Act (OCSLA); because a causal nexus existed between the alleged actions taken by the defendants pursuant to a federal officer’s directions and the plaintiffs’ claims and because the defendants could assert colorable federal defenses; because the claims were based on alleged injuries to or conduct on federal enclaves; and because the state law claims were related to bankruptcy cases. County of Marin v. Chevron Corp., No. 3:17-cv-04935 (N.D. Cal. Aug. 24, 2017); City of Imperial Beach v. Chevron Corp., No. 4:17-cv-04934 (N.D. Cal. Aug. 24, 2017); County of San Mateo v. Chevron Corp., No. 3:17-cv-04929 (N.D. Cal. Aug. 24, 2017).
Dakota Access Pipeline Developers Filed RICO Action Against Environmental Groups
Two companies that led development of the Dakota Access Pipeline filed an action under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Greenpeace International and other environmental activist groups. The companies—Energy Transfer Equity, L.P. and Energy Transfer Partners, L.P. (together, Energy Transfer)—alleged that they were the latest business to be targeted by “a network of putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims.” Energy Transfer asserted that the defendants and other parties had “manufactured” a crisis and engaged in an illegal campaign against the Dakota Access Pipeline, and had worked together to carry out racketeering activity, that included supporting acts of terrorism; defrauding donors, supporters, and state and federal treasuries; engaging in tax fraud and interstate drug trafficking; and transporting and transmitting misappropriated funds and property through interstate commerce. The complaint alleged numerous misrepresentations regarding the pipeline project, citing the campaign’s charges that the project was a “climate destroying project” that would ensure “guaranteed destruction of the planet,” which the complaint called “a sensational lie.” The complaint asserted that the enterprise had exploited “legitimate concerns about mitigating climate change to dupe the public into supporting a campaign that does the opposite” and that the exploitation “lays bare that [the enterprise] is motivated entirely by money, not its proclaimed concerns about environmental impacts.” Energy Transfer alleged that the “scheme’s dissemination of negative misinformation devastated the market reputation of Energy Transfer as well as the business relationships vital to its operations and growth.” In addition to racketeering and conspiracy counts under RICO, Energy Transfer also asserted claims of state law racketeering, defamation, tortious interference with business, and common law civil conspiracy. Energy Transfer Equity, L.P. v. Greenpeace International, No. 1:17-cv-00173-CSM (D.N.D., filed Aug. 22, 2017).
Sierra Club Filed FOIA Lawsuit Seeking Communications Regarding Department of Energy Grid Study
Sierra Club filed a lawsuit asking the federal district court for the Northern District of California to order the U.S. Department of Energy to produce documents requested under FOIA regarding DOE’s study of U.S. electricity markets and the reliability of the electrical grid. Sierra Club alleged that it appeared that DOE had “intended from the outset to release a biased study containing pre-determined conclusions that ‘baseload’ plants utilizing fossil fuels are necessary for the reliability and resiliency of the grid, and that existing policies to encourage adoption of clean energy sources must be scaled back.” Sierra Club had submitted a FOIA request to DOE on May 1, 2017 requesting communications between DOE officials and outside parties such as trade groups, representatives of the electricity utility or generation industries, FERC, regional transmission organizations, and independent system operators. Sierra Club v. U.S. Department of Energy, No. 3:17-cv-04663 (N.D. Cal., filed Aug. 14, 2017).
California Sought Records on EPA Procedures for Avoiding Appearance of Lack of Impartiality in Pruitt’s Involvement in Rulemaking Processes
The State of California filed a lawsuit in the federal district court for the District of Columbia alleging that EPA had not complied with FOIA in response to California’s request for records concerning EPA’s process to ensure that Administrator E. Scott Pruitt was in compliance with federal ethics regulations and obligations and EPA’s policies and procedures for determining who would assume the Administrator’s powers if Pruitt was recused or disqualified from participating in a matter. California said that as EPA Administrator, Pruitt became responsible for implementing regulations he had worked to overturn as Oklahoma Attorney General “just moments earlier,” including rules limiting greenhouse gas emissions from power plants and the oil and gas sector. California asserted that Pruitt’s “public attacks on the legal and factual justification EPA provided for many rules … raise a question regarding his ability to participate in administrative processes and rulemakings concerning these same rules with the impartiality required by federal law.” California v. EPA, No. 1:17-cv-01626 (D.D.C., filed Aug. 11, 2017).
Lawsuit Alleged That Renewal of Permit for Shellfish Aquaculture Did Not Consider Climate Impacts on Washington State Waters
Center for Food Safety (CFS)—a nonprofit organization “whose mission is to empower people, support farmers, and protect the earth from the adverse impacts of industrial food production”—filed an action challenging the U.S. Army Corps of Engineers’ renewal of a nationwide permit to cover shellfish aquaculture in Washington State. CFS’s complaint, filed in the federal district court for the Western District of Washington, asserted that the Corps failed to comply with the Clean Water Act and NEPA. CFS alleged, among other things, that the supplemental environmental assessment prepared by the Corps did not fully assess the incremental impact of expanding the area of commercial shellfish aquaculture in combination with existing impacts from other human activities, including climate change. Center for Food Safety v. U.S. Army Corps of Engineers, No. 2:17-cv-01209 (W.D. Wash., filed Aug. 10, 2017).
