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 # 102.
Tenth Circuit Said Analysis of Coal Leases’ Greenhouse Gas Impact Was Arbitrary and Capricious
The Tenth Circuit Court of Appeals ruled that the U.S. Bureau of Land Management (BLM) acted arbitrarily and capriciously when it concluded that issuance of four coal leases in Wyoming’s Powder River Basin would not result in higher national greenhouse gas emissions than declining to issue the leases. The leases extended the lives of two existing surface mines that account for approximately 19.7% of the U.S.’s annual domestic coal production. The Tenth Circuit rejected the argument that the environmental groups challenging the leases lacked standing, concluding that the plaintiffs were not required to assert a climate-related injury to challenge BLM’s analysis of climate impacts. The Tenth Circuit also said the plaintiffs retained their standing on appeal even though they had dropped their challenges regarding the adequacy of BLM’s consideration of the local environmental impacts that formed the basis for their alleged injuries. On the merits, the court held that BLM’s reliance on a “perfect substitution assumption”—that the same amount of coal would be sourced from elsewhere even if BLM did not issue the leases—to compare the greenhouse gas emissions for the no-action alternative and issuance of the leases lacked support in the record. The court also said, however, that “[e]ven if we could conclude that the agency had enough data before it to choose between the preferred and no action alternatives, we would still conclude this perfect substitution assumption arbitrary and capricious because the assumption itself is irrational (i.e., contrary to basic supply and demand principles).” The Tenth Circuit rejected, however, the plaintiffs’ contention that BLM’s failure to use “readily available” modeling tools to determine climate impact was arbitrary and capricious. In rejecting BLM’s use of the perfect substitution assumption, the Tenth Circuit distinguished the case from the Supreme Court’s decision in Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983), in which the Court deferred to the Nuclear Regulatory Commission (NRC) in a matter regarding nuclear waste storage, in part because the matter was within NRC’s expertise and at the “frontiers of science.” The Tenth Circuit said BLM was not owed deference in this case because climate science was not a “scientific frontier”; the Tenth Circuit also noted that BLM had acknowledged that climate change was “a scientifically verified reality.” In a concurring opinion, Judge Baldock indicated that the court’s “assertion that climate science is settled science is, in my view, both unnecessary to this appeal and questionable as a factual matter.” WildEarth Guardians v. U.S. Bureau of Land Management, No. 15-8109 (10th Cir. Sept. 15, 2017).
DECISIONS AND SETTLEMENTS
Massachusetts Federal Court Said Organization Alleging Lack of Preparedness at Oil Terminal Had Standing for Near-Term Coastal Hazards but Not for Climate Change-Related Harms in “Far Future”
The federal district court for the District of Massachusetts granted in part and denied in part ExxonMobil Corporation’s (Exxon’s) motion to dismiss a Clean Water Act citizen suit alleging Exxon failed to prepare an oil terminal for severe storms and climate change. The court found that the plaintiff had adequately alleged standing for claims that there was a substantial risk that severe weather events such as storm surges, heavy rains, or flooding would cause the terminal to discharge pollutants in the near future and while the facility’s current permit was in effect. The court also found, however, that the plaintiffs did not have standing “for injuries that allegedly will result from rises in sea level, or increases in the severity of storms and flooding, that will occur in the far future, such as in 2050 or 2100.” The parties subsequently submitted a joint motion proposing a schedule under which the plaintiff will file an amended complaint in accordance with the court’s order by October 20, 2017, after which the parties will negotiate for one month to resolve or narrow remaining disputed issues. Conservation Law Foundation, Inc. v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass. joint motion Sept. 19, 2017; order Sept. 13, 2017).
D.C. Circuit Declined to Vacate EPA Stay of Landfill Gas Regulations and Continued to Hold Challenge to Regulations in Abeyance
The D.C. Circuit denied a motion for summary vacatur of the U.S. Environmental Protection Agency’s (EPA’s) administrative stay of regulations restricting emissions of landfill gas (including methane) from municipal solid waste landfills. The D.C. Circuit asked the parties to address in their briefs whether the case was moot because the administrative stay being challenged expired on August 29, 2017. Other developments related to the landfill regulations included the D.C. Circuit’s granting of a request by EPA and petitioners challenging the emission guidelines for existing sources to continue to hold the cases in abeyance for 90 days while EPA proceeded with its reconsideration of the guidelines. Natural Resources Defense Council v. Pruitt, No. 17-1157 (D.C. Cir. order Sept. 28, 2017); National Waste & Recycling Association v. EPA, Nos. 16-1371, 16-1374 (D.C. Cir. order Sept. 26, 2017; joint motion Sept. 12, 2017).
Ninth Circuit Said Forest Service Took Hard Look at Climate Change’s Impact on Water Project
In an unpublished decision, the Ninth Circuit Court of Appeals upheld the U.S. Forest Service’s authorization of a project to upgrade a water intake facility and construct a new water pipeline on Deschutes National Forest to serve the City of Bend, Oregon. The Forest Service also authorized the City to operate the system for 20 years. The Ninth Circuit rejected the argument that the Forest Service had conducted an inadequate assessment of climate change impacts on the project and on water levels in a creek from which water was withdrawn. The Ninth Circuit said the Forest Service was not required to conduct a quantitative analysis, noting that climate change would have had the same impact on water flow as either alternative analyzed in the environmental assessment. The Ninth Circuit also said a provision for monitoring did not conflict with the Forest Service’s “hard look” obligation because the Service’s qualitative analysis of impacts was adequate on its own and the Service explained why future monitoring would allow for better evaluation of climate change and its impacts. Central Oregon Landwatch v. Connaughton, No. 15-35089 (9th Cir. Aug. 23, 2017).
Second Circuit Upheld State Denial of Water Quality Certificate for Natural Gas Pipeline
The Second Circuit Court of Appeals upheld the New York State Department of Environmental Conservation’s (DEC’s) denial of an interstate natural gas pipeline developer’s application for a Water Quality Certificate under Section 401 of the Clean Water Act. As a threshold matter, the Second Circuit concluded that it lacked jurisdiction to consider the developer’s argument that DEC had waived its right to rule on the application because it failed to act on the application within the time period required by the Clean Water Act. On the merits, the Second Circuit rejected the developer’s contention that DEC’s action was preempted by FERC’s performance of its obligations under the National Environmental Policy Act. The Second Circuit said the Natural Gas Act and Clean Water Act entitled DEC to conduct its own review of the pipeline project’s impacts on New York waterbodies. The Second Circuit found that the denial of the application after the developer failed to provide information DEC had requested was not arbitrary and capricious. In its brief defending the denial, DEC noted that removal of riparian vegetation to build the project could increase water temperatures and that climate change could exacerbate these impacts in the long term. The pipeline developer filed a petition for panel rehearing or rehearing en banc on September 1, 2017. Constitution Pipeline Co. v. New York State Department of Environmental Conservation, No. 16-1568 (2d Cir. Aug. 18, 2017).
Second Circuit Denied Rehearing of Decision Upholding Connecticut Renewable Energy Programs
On August 17, 2017, the Second Circuit Court of Appeals denied a petition for panel rehearing or rehearing en banc of its opinion upholding Connecticut renewable energy programs over claims that they violated the dormant Commerce Clause or were preempted by federal law. Allco Finance Ltd. v. Klee, Nos. 2946, 2929 (2d Cir. Aug. 17, 2017).
Arizona Federal Court Dismissed Challenges to Approvals for Extended and Expanded Operations at Four Corners Power Plant and Navajo Mine
The federal district court for the District of Arizona dismissed an action challenging federal authorizations for extending operations of the Four Corners Power Plant, renewing rights-of-way for transmission lines, and expanding strip mining in the Navajo Mine. The court agreed with Navajo Transitional Energy Company (NTEC)—a company formed by the Navajo Nation in 2013 to purchase the Navajo Mine—that NTEC was a necessary party that could not be joined by virtue of its sovereign immunity. The court held that “[i]n equity and good conscience” the case could not continue. The groups challenging the approvals had alleged violations of the Endangered Species Act and the National Environmental Policy Act, including allegations that environmental review failed to consider alternatives that would have significantly reduced greenhouse gas emissions. Diné Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, No. 3:16-cv-08077 (D. Ariz. Sept. 11, 2017).
New York High Court Denied Exxon Leave to Appeal Decision Requiring Accounting Firm to Comply with Attorney General’s Subpoena
The New York Court of Appeals denied Exxon Mobil Corporation’s motion for leave to appeal an intermediate appellate court’s decision upholding a trial court order requiring Exxon’s accounting firm to respond to a subpoena issued by the New York Attorney General in his investigation of Exxon’s climate change-related disclosures. The intermediate appellate court had agreed with the trial court that an accountant-client privilege did not exist to shield the accounting firm from complying with the subpoena. Matter of People of the State of New York v. PricewaterhouseCoopers LLP, No. 2017-862 (N.Y. Sept. 12, 2017).
Newhall Ranch Developers Agreed to “Net Zero Plan” in Settlement with Project’s Opponents
The developers of the Newhall Ranch multi-use development project in northwestern Los Angeles County reached a settlement agreement on September 22, 2017 with groups that had opposed the project to end ongoing litigation and avoid future litigation over the projects. The California Supreme Court ruled in November 2015 that the California Department of Fish and Wildlife lacked substantial evidence to support its conclusion that greenhouse gas emissions associated with the project would not result in a cumulatively significant impact under the California Environmental Quality Act. The settlement agreement indicated that in response to the court’s decision, the developers committed to a “Net Zero Plan” that would, among other things, “result in more than approximately 10,000 solar installations producing approximately 250 million kWh of renewable electricity every year” and “installation of approximately 25,000 electric vehicle chargers within the development and across Los Angeles County, as well as approximately $14 million in subsidies toward the purchase of electric vehicles.” Center for Biological Diversity v. California Department of Fish and Wildlife, No. BS131347 (Cal. Super. Ct.), No. B245131 (Cal. Ct. App.); Friends of the Santa Clara River v. County of Los Angeles, No. BS136549 (Cal. Super. Ct.); California Native Plant Society v. County of Los Angeles, No. BS138001 (Cal. Super. Ct.).
Arizona Appellate Court Sent Public Records Case Involving Climate Scientist Emails Back to Trial Court
The Arizona Court of Appeals reversed a trial court ruling that required that the University of Arizona produce emails of two climate scientists. The documents at issue were characterized as “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary.” The trial court issued its ruling on remand from an earlier appellate decision finding that the trial court should have conducted a de novo review of the university’s justification for withholding the documents. In its latest decision, the appellate court said that the trial court’s decision on remand did not refer to a section of the public records law providing for an exemption for “records of a university” and that the trial court seemed unaware of the existence of the academic privilege. The appellate court also said the trial court had not explained why the documents at issue did not fall within other exceptions to the public records law for unpublished research data, drafts of scientific papers, and information developed by university employees for which disclosure would be contrary to the best interests of the state. The appellate court remanded for further proceedings. Energy & Environment Legal Institute v. Arizona Board of Regents, No. 2 CA-CV 2017-0002 (Ariz. Ct. App. Sept. 14, 2017).
Washington Appellate Court Reversed Trial Court Order Requiring State Agency to Set Greenhouse Gas Standards by End of 2016
The Washington State Court of Appeals reversed a May 2016 trial court decision ordering the Washington Department of Ecology (Ecology) to issue a final rule setting limits on greenhouse gas emissions by the end of 2016 and to make recommendations to the state legislature for changes to statutory emission standards. The May 2016 decision came after Ecology withdrew a proposal to set greenhouse gas standards and vacated in part the trial court’s November 2015 judgment denying the youth petitioners’ appeal from Ecology’s denial of their request that the agency Ecology mandate greenhouse gas emission reductions. The November 2015 decision found that Ecology was fulfilling its obligations under the Clean Air Act, as well as the Washington constitution and public trust doctrine, because it had commenced rulemaking to establish greenhouse gas standards. As an initial matter, the appellate court found that Ecology’s appeal was not moot despite Ecology having completed the tasks the trial court ordered May 2016. On the merits of the appeal, the appellate court held that the trial court had abused its discretion in granting the petitioners’ motion for relief from the November 2015 judgment. The appellate court said the trial court had not found a violation of the Administrative Procedure Act and that the granting of affirmative relief to the petitioners was a misuse of the procedure for granting relief from a judgment. In addition, the appellate court said the petitioners had not demonstrated “extraordinary circumstances” warranting relief from the judgment—the appellate court said climate change could not be considered extraordinary circumstances for purposes of relief from the judgment because the trial court had already considered climate change as well as Ecology’s alleged inaction in addressing climate change, climate change’s “urgent and serious” nature was a component of the November 2015 judgment, and the parties did not contest the seriousness of climate change. Nor did Ecology’s withdrawal of a proposed rule constitute extraordinary circumstances. Foster v. Washington Department of Ecology, No. 75374-6-1 (Wash. Ct. App. Sept. 5, 2017).
Review of Methanol Manufacturing Facility’s Greenhouse Gas Impacts Found Inadequate
The Washington Shorelines Hearings Board ruled that Cowlitz County’s environmental review for a proposed methanol manufacturing and shipping facility was adequate. The project would emit more than one million tons of greenhouse gas emissions annually, not including off-site emissions, increasing Washington’s total emissions by more than one percent. The Board found that the final environmental impact statement (EIS) failed to adequately assess the project’s greenhouse gas impacts. The Board said the EIS’s conclusion that the project would not result in unavoidable significant adverse greenhouse gas emissions-related impacts was based “almost entirely” on Washington State Department of Ecology guidance that Ecology had acknowledged was of “limited value” and that Ecology had withdrawn four months before the final EIS was issued. The Board said a condition subsequently imposed by Ecology requiring the facility to mitigate greenhouse gas emissions did not fix the inadequate EIS review because there was insufficient analysis of impacts to determine whether the condition was adequate and there had been no public review. Columbia Riverkeeper v. Cowlitz County, No. 17-010c (Wash. SHB order Sept. 18, 2017).
FERC Ruled That New York Department of Environmental Conservation Waived Authority to Act on Pipeline Application; DEC Request to Reopen FERC Record Still Pending
After the New York State Department of Environmental Conservation conditionally denied an application for a water quality certification for a natural gas pipeline project on the ground that the Federal Energy Regulatory Commission (FERC) had not adequately evaluated the project’s downstream greenhouse gas emissions, FERC issued a declaratory order finding that DEC had waived its authority to act on the application by failing to issue a decision within the one-year timeframe required by the Clean Water Act. FERC indicated that it would assess in a separate order DEC’s motion to reopen the record and to stay FERC’s November 2016 authorization of the project. DEC had argued that FERC should reopen the record to take evidence on downstream greenhouse gas impacts or grant rehearing to conduct supplemental environmental review. In re Millennium Pipeline Co., No. CP16-17-000 (FERC Sept. 15, 2017).
NEW CASES, MOTIONS, AND NOTICES
San Francisco and Oakland Asked State Courts to Require Oil and Gas Companies to Fund Climate Adaptation Programs
San Francisco and Oakland filed lawsuits in California Superior Court against five oil and gas companies alleging that the carbon emissions from their fossil fuel production had created an unlawful public nuisance. The complaints alleged that the defendants had produced and promoted the use of “massive amounts” of fossil fuels despite having been aware since the 1950s, based on information from the American Petroleum Institute, that emissions from fossil fuels would cause severe and even catastrophic climate change impacts. The complaints alleged that the cities were already experiencing impacts from accelerated sea level rise due to climate change. The cities asked the courts to require the companies to abate the nuisance by funding climate adaptation programs to build sea walls and other infrastructure necessary to protect public and private property from sea level rise and other climate impacts. People of State of California v. BP p.l.c., No. CGC-17-561370 (Cal. Super. Ct., filed Sept. 19, 2017); People of State of California v. BP p.l.c., No. RG17875889 (Cal. Super. Ct., filed Sept. 19, 2017).
Trade Association for Trailer Manufacturers Asked for Stay of Greenhouse Gas Standards
On September 25, 2017, the Truck Trailers Manufacturers Association (TTMA) asked the D.C. Circuit to stay the greenhouse gas and fuel efficiency standards for medium- and heavy-duty engines and vehicles, which TTMA said impermissibly imposed standards on heavy-duty trailers. TTMA noted that the trailer standards—which TTMA argued EPA lacked statutory authority to impose—would take effect on January 1, 2018. TTMA said it was now clear that the D.C. Circuit would not complete its review by that time and that EPA, which agreed in August 2017 to reconsider the trailer standards, had not acted on TTMA’s April 2017 request for an administrative stay. On September 18, 2017, EPA requested that the D.C. Circuit continue to hold the case in abeyance pending completion of administrative proceedings. TTMA said it opposed that request unless the court granted its request for the stay. In moving for the stay, TTMA said it was likely to succeed on the merits, that its members would be irreparably harmed in the absence of a stay, and that a stay would not harm any parties and would be in the public interest. Truck Trailers Manufacturers Association v. EPA, Nos. 16-1430 and 16-1447 (D.C. Cir. motion for stay Sept. 25, 2017; motion to continue abeyance Sept. 18, 2017).
Rehearing Sought of D.C. Circuit Decision Vacating Hydrofluorocarbon Prohibition
After the D.C. Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA’s) rule prohibiting use of hydrofluorocarbons (HFCs)—which are powerful greenhouse gases—as replacements for ozone-depleting substances, Natural Resources Defense Council (NRDC) and two companies that intervened as respondents to defend the rule filed petitions for panel rehearing and rehearing en banc. NRDC argued that the panel had committed “two serious errors”: (1) it had reached beyond the 2015 rule at issue to improperly invalidate a rule issued in 1994, and (2) it had adopted a “patently unfounded interpretation of the statutory term ‘replace’ at Step 1” of its Chevron analysis. The two companies also argued that the court had exceeded its jurisdiction by invalidating the 1994 regulation and had incorrectly applied Step 1 of Chevron. The companies asserted that the court had “paradoxically held that even though EPA properly placed HFCs on the prohibited substances list, EPA lacked authority to prohibit pre-existing uses of HFCs” and that the court’s holding amounted to finding that “EPA had one chance, and one chance only, to require a manufacturer to replace an ozone-depleting substance with a safer alternative, no matter how dangerous the replacement might turn out to be or how much safer a newly available alternative is.” Mexichem Fluor, Inc. v. EPA, Nos. 15-1328, 15-1329 (D.C. Cir. Sept. 22, 2017).
With FERC and Court Proceedings Pending on Atlantic Sunrise Pipeline Project, Environmental Groups Said FERC Needed to Reassess Greenhouse Gas Impacts
While requests for rehearing regarding the Atlantic Sunrise natural gas pipeline expansion project were still pending with FERC, the D.C. Circuit Court of Appeals referred motions to dismiss petitions challenging FERC’s February 2017 authorization of the pipeline project to the merits panel. The parallel proceedings resulted at least in part from FERC’s lacking a quorum earlier in 2017 to rule on the rehearing requests within the required 30-day timeframe. The petitioners contended that FERC’s failure to act on the rehearing requests operated as a denial of the requests and gave them the ability to challenge FERC’s authorization in the D.C. Circuit. FERC and the pipeline project’s developer argued that the D.C. Circuit did not have jurisdiction to hear the challenges. Environmental groups filed an amended request for rehearing with FERC on September 22, 2017, arguing that a supplemental environmental impact statement analyzing greenhouse gas emissions and climate change impacts was required in light of the D.C. Circuit’s August 22, 2017 decision in Sierra Club v. FERC, No. 16-1329, which required FERC to do more to assess downstream greenhouse gas emissions and other climate impacts with respect to another pipeline project. The groups contended that the environmental review of the Atlantic Sunrise project had “impermissibly downplay[ed] cumulative climate impacts” as well as downstream greenhouse gas emissions and asserted that FERC was required to use the social cost of carbon to assess the project’s impacts and to analyze or explore mitigation for the project’s combustion impacts. The groups said FERC should halt construction and rescind a notice to proceed issued earlier in September. Allegheny Defense Project v. Federal Energy Regulatory Commission, No. 17-1098 (D.C. Cir. order Sept. 21, 2017); In re Transcontinental Gas Pipe Line Company, LLC, No. CP15-138 (FERC amended request for rehearing Sept. 22, 2017).
Environmental Groups and States Challenged Indefinite Delay of Increase in Civil Penalties for CAFE Standard Violations
Two petitions for review were filed in the Second Circuit Court of Appeals seeking to set aside the National Highway Traffic Safety Administration’s decision to indefinitely delay the effective date of a final rule increasing the civil penalty rate for violations of the Corporate Average Fuel Economy (CAFE) standards. Petitioners in one proceeding were the Natural Resources Defense Council and two other environmental groups. Petitioners in the other proceeding were the State of New York and four other states. The petitions were filed pursuant to the Energy Policy and Conservation Act. Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, No. 17-2780 (2d Cir., filed Sept. 7, 2017); New York v. National Highway Traffic Safety Administration, No. 17-2806 (2d Cir., filed Sept. 8, 2017).
EPA Reported That It Expected to Finalize Clean Power Plan Rule in Fall 2017
In a status report filed in the D.C. Circuit Court of Appeals on September 7, 2017 in the proceedings challenging the Clean Power Plan, EPA indicated that its review of the Clean Power Plan had inadvertently been classified as a “long term action” rather than as in the “proposed rule stage” in the Office of Information and Regulatory Affairs’ unified regulatory agenda. EPA requested that the D.C. Circuit continue to hold the proceedings in abeyance. EPA said its review should have been classified as in the “proposed rule stage” because it expected the EPA Administrator to sign a proposed rule in the fall of 2017. EPA said OIRA was currently reviewing the draft proposed rule. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. Sept. 7, 2017).
Federal Highway Administration Said Lawsuit Challenging Suspension of Greenhouse Gas Highway Performance Measures Was Moot
On September 28, 2017, the Federal Highway Administration (FHWA) published notice that greenhouse gas performance measures for the national highway system that it suspended indefinitely in May 2017 would go into effect. FHWA also said it had initiated additional rulemaking procedures to repeal the greenhouse gas measures and expected to issue a proposed rule in 2017 with the goal of issuing a final rule in spring 2018. Two lawsuits had been filed challenging FHWA’s delay and suspension of the greenhouse gas performance measures’ effective date. On September 25, 2017, the Acting U.S. Attorney for the Southern District of New York submitted a letter to the federal district court for the Southern District of New York, which was hearing one of the cases, indicating that the federal defendants believed the impending September 28 notice would make the lawsuit moot and asking that deadlines for the plaintiffs’ motion for summary judgment be adjourned. The other case challenging the FHWA’s delays and suspension of the performance measures was filed in the federal district court for the Northern District of California on September 20, 2017 by eight states. Clean Air Carolina v. U.S Department of Transportation, No. 1:17-cv-05779 (S.D.N.Y. Sept. 25, 2017); People of State of California v. U.S. Department of Transportation, No. 4:17-cv-05439 (N.D. Cal., filed Sept. 20, 2017).
Exxon Asked Federal Court to Dismiss Securities Class Action
Exxon Mobil Corporation (Exxon) and four of its current and former officers moved to dismiss a federal securities class action in the federal district court for the Northern District of Texas in which the complaint alleged that the defendants made materially false and misleading statements regarding the value and amount of Exxon’s oil and gas reserves and regarding Exxon’s purported efforts to incorporate carbon or greenhouse gas proxy costs into the investment and valuation process for its oil and gas reserves. Exxon asserted that it had fully disclosed the risks of climate change to its business and that it had not misrepresented the methodologies it used to analyze those risks. Exxon said the complaint’s allegations “rest on confusing two distinct concepts”: first, “a proxy cost of carbon,” which Exxon said it used to represent the impact of climate change policies on future global demand and, second, a “greenhouse gas … costs,” which Exxon said it used to “to estimate its own expenses for its emissions of carbon dioxide or other greenhouse gases.” Exxon contended that the complaint’s allegations “establish only the unremarkable fact that ExxonMobil used two different numbers for two different purposes, all for the purpose of prudently taking account of climate-change risks.” Exxon also argued that the complaint did not adequately plead fraudulent intent or loss causation. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111 (N.D. Tex. Sept. 26, 2017).
California Counties and City Argued for Keeping Peabody in Climate Case
San Mateo and Marin Counties and the City of Imperial Beach (the plaintiffs) opposed Peabody Energy Corporation’s (Peabody) motion in federal bankruptcy court in Missouri to enjoin them from pursuing their public nuisance and tort law claims against Peabody. The plaintiffs filed lawsuits in California state court, since removed to federal court, alleging that Peabody and other defendants’ release of greenhouse gases into the atmosphere made them responsible for sea level rise and other climate change impacts affecting their communities. Peabody argued that the discharge and injunction contained in its plan for reorganization barred the claims. The plaintiffs argued that multiple carve-outs in the injunction allowed them to proceed with their claims against Peabody. They contended that they were governmental plaintiffs exercising their police powers, that their statutory public nuisance cause of action did not constitute a “claim” subject to the injunction, and that their claims fell within a carve-out for governmental claims brought under “Environmental Law.” In re Peabody Energy Corp., No. 16-42529 (Bankr. E.D. Mo. Sept. 26, 2017).
Lawsuit Filed Against State of Colorado Seeking Declaration That Colorado River Ecosystem Is “Person” Possessing Rights to Flourish
A social and environmental justice organization and five of its members filed a lawsuit as “next friends” for and guardians of the Colorado River Ecosystem against the State of Colorado. The complaint sought declaratory relief, including declarations that the Colorado River Ecosystem is a “person” capable of possessing rights and possesses “rights to exist, flourish, regenerate, be restored, and naturally evolve.” The complaint also asked for a declaration that certain activities carried out or permitted by the State of Colorado may violate those rights and that the plaintiffs could proceed to seek injunctive relief. The complaint, filed in the federal district court for the District of Colorado, alleged that climate change was among the threats faced by the river. Colorado River Ecosystem v. State of Colorado, No. 1:17-cv-02316 (D. Colo., filed Sept. 25, 2017).
Center for Biological Diversity Challenged Biological Opinion for Copper Mine, Including Failure to Adequately Analyze Climate Impacts
The Center for Biological Diversity filed a lawsuit in the federal district court for the District of Arizona alleging the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion for a proposed open-pit copper mine on the Coronado National Forest violated the Endangered Species Act (ESA). The Center also alleged that the U.S. Forest Service’s reliance on the biological opinion violated the ESA. The complaint also alleged violations of the Administrative Procedure Act. The Center contended that the mine would significantly impact a number of endangered species, including the Gila chub as well as one of three known wild jaguars in the United States. The complaint’s allegations included that the combined impacts of the mine and climate change would cause reduced flows in “key reaches” of a creek that had the only known stable and secure population of Gila chub in existence and also included more general allegations that the biological opinion failed to adequately describe and analyze the environmental baseline and cumulative effects, including the impacts of climate change. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:17-cv-00475 (D. Ariz., filed Sept. 25, 2017).
California and Its Coastal Commission Challenged Waiver for Border Wall Projects, Said Potential Climate Impacts Would Not Be Assessed
The People of the State of California and the California Coastal Commission filed a lawsuit in the federal district court for the Southern District of California alleging that the construction of a border wall and other border barrier projects would violate the National Environmental Policy Act, the Coastal Zone Management Act, and the Administrative Procedure Act. They contended that the Secretary and Acting Secretary of Homeland Security had acted outside their authority in authorizing and waiving review requirements for two border wall projects in California under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The complaint alleged that the impacts of the projects’ construction on climate change would not be quantified or assessed as a result of the waivers. The plaintiffs also asserted that the waivers and the section of the IIRIRA pursuant to which the secretaries acted were unconstitutional. People of State of California v. United States, No. 3:17-cv-01911 (S.D. Cal., filed Sept. 20, 2017).
Sierra Club Filed FOIA Lawsuit Seeking EPA Officials’ External Communications
Sierra Club filed a Freedom of Information Act (FOIA) lawsuit against EPA alleging that the agency failed to respond to four FOIA requests for communications between senior EPA officials, including Administrator Scott Pruitt, and outside people and organizations. Sierra Club also requested calendars for the EPA officials. Sierra Club said it sought the records “to shed light on secretive and potentially improper efforts by Mr. Pruitt and his core political team to nullify critical, lawful EPA regulations and policies.” The complaint alleged that “Mr. Pruitt and his inner circle of political staff at EPA have apparently been implementing secretive and closed-door policies that imprudently reduce transparency about the agency’s operations and activities,” and that EPA had left the public without access to information previously publicly available, including by removing from its website “formerly prominent information about climate change—a phenomenon that, the scientific consensus warns, gravely impacts public health and the environment, but that tends to pressure Mr. Pruitt’s supporters in the fossil fuel industry to reduce carbon emissions.” Sierra Club v. EPA, No. 1:17-cv-01906 (D.D.C., filed Sept. 18, 2017).
New York Challenged EPA Designation of New Ocean Dumping Site, Saying EPA Failed to Account for Future Resilience Projects That Would Require Dredged Materials
The State of New York, its secretary of state, and the commissioner of its environmental regulatory agency sued EPA to challenge its designation of a permanent open water site in the eastern Long Island Sound for disposal of dredged materials. EPA designated the site as one of two new dumping sites in the sound pursuant to the Marine Protection, Research, and Sanctuaries Act, also commonly known as the Ocean Dumping Act. The plaintiffs charged that EPA had acted arbitrarily and capriciously, including by “unreasonably inflat[ing] the projected dredged material disposal needs for the area.” The plaintiffs cited, among other factors, increased need for sand and coarse-grained sediment for beach nourishment and other coastal resilience projects due to sea level rise and increasingly frequent intense storm events. Rosado v. Pruitt, No. 1:17-cv-04843 (E.D.N.Y., filed Aug. 17, 2017).
Environmental and Conservation Groups Said CEQA Review for WaterFix Diversion Project Failed to Consider Impacts of Climate Change
Eleven environmental and conservation groups filed a lawsuit in California Superior Court challenging the approval of the Bay Delta Conservation Plan/California WaterFix Project, which would divert water from the San Francisco Bay-Delta estuary for export south. The groups said the California Department of Water Resources had failed to comply with the Delta Reform Act, the California Environmental Quality Act (CEQA), the “fully protected species” statutes, and the California Public Trust Doctrine. They asserted numerous shortcomings in the CEQA review, including the failure to discuss the implications of climate change for the project’s water deliveries and failure to consider the cumulative impacts of climate change such as changing storm patterns and sea level rise or the potential climate change effects on hydrology. California Sportfishing Protection Alliance v. California Department of Water Resources, No. ___ (Cal. Super. Ct., filed Aug. 21, 2017).
Environmental Groups Notify EPA of Intent to Sue to Compel Issuance of Methane and VOC Guidelines for Existing Oil and Gas Sources
Eight environmental groups sent EPA a letter informing the agency that they intended to file a lawsuit under the Clean Air Act to compel EPA to issue emission guidelines for methane and volatile organic compounds (VOCs) from existing sources in the oil and gas sector. The groups said EPA had known for many years that methane and VOCs were harmful to public health and welfare, that the oil and gas sector emitted large amounts of methane and VOCs, and that low-cost controls were available to reduce emissions. The groups also asserted that that EPA’s promulgation of methane and VOC standards for new sources in the sector imposed a mandatory obligation on it to issue the guidelines for existing sources. Notice of Intent to Sue EPA for Failure to Promulgate Emission Guidelines for Methane and VOC Emissions from the Oil and Gas Sector (Aug. 28, 2017).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Environmental Organization Filed Cases in High Court of South Africa Challenging Government Approval of Two 600 MW Coal-Fired Power Plants Without First Considering the Climate Change Impacts of the Plants
The environmental organization groundWork filed motions requesting that South Africa’s High Court review and set aside the Department of Environmental Affair’s authorizations to develop two 600 MW coal-fired power plants, the “Khanyisa Project” and the “KiPower Project,” without first considering the climate change impacts of the plants. The organization also challenged the Minister of Environmental Affairs’ rejection of groundWork’s applications to appeal the authorization.
Petitioners argued these decisions directly contradicted the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. That case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment (“EIA”)” under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 240(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. Trustees for the Time Being of the groundWork Trust v. Minister of Environmental Affairs, KiPower (PTY) LTD, and Others, Case No. 54087/17 (High Court of South Africa, Sept. 2017); Trustees for the Time Being of the groundWork v. Minister of Environmental Affairs, ACWA Power Khanyisa Thermal Power Station RF (PTY) LTD, and Others, Case No. 61561/17 (High Court of South Africa, Sept. 2017).