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 # 103.
FEATURED CASE
Bankruptcy Court Said California City and Counties Could Not Sue Coal Company for Climate Change Impacts
A federal bankruptcy court in Missouri enjoined San Mateo and Marin Counties and the City of Imperial Beach (the plaintiffs) from pursuing their climate change lawsuits against Peabody Energy Corporation (Peabody). The plaintiffs alleged that Peabody (and a number of other fossil fuel companies) caused greenhouse gas emissions that resulted in sea level rise and damage to their property. Peabody, a coal company, filed for bankruptcy in April 2016 and emerged from bankruptcy under a plan that became effective on April 3, 2017. As an initial matter, the bankruptcy court said the plaintiffs had not established any basis for a claim because the complaints’ only Peabody-specific allegations were that Peabody had exported coal from terminals or ports in several California counties and was a member of organizations that plaintiffs said denied climate change. The court further concluded, however, that even assuming claims did exist, the claims were pre-bankruptcy petition claims that had been discharged under the bankruptcy plan because the plaintiffs had not filed proofs of claim. The court determined, moreover, that even if the plaintiffs’ claims could be construed as post-effective date claims (i.e., claims concerning conduct and harm after Peabody emerged from bankruptcy), the claims did not fall within the scope of a settlement with the U.S. Environmental Protection Agency (EPA) and other governmental entities to allow continued enforcement of environmental laws related to ongoing mining operations. The bankruptcy court also rejected the plaintiffs’ argument that one of their nuisance claims did not constitute a “Claim” or “Liability” pursuant to the Bankruptcy Code and Peabody’s bankruptcy plan and therefore could not be discharged and enjoined. Reorganized Peabody Energy Corp. v. County of San Mateo (In re Peabody Energy Corp.), No. 16-42529 (Bankr. E.D. Mo. Oct. 24, 2017).
DECISIONS AND SETTLEMENTS
D.C. Circuit Upheld Department of Energy LNG Export Authorizations from Three More Facilities
In an unpublished decision, the D.C. Circuit Court of Appeals upheld the U.S. Department of Energy’s (DOE’s) authorization of liquefied natural gas (LNG) exports from three facilities in Louisiana, Maryland, and Texas. The court said its August 2017 decision rejecting challenges under the National Environmental Policy Act (NEPA) and Natural Gas Act to DOE’s authorization of LNG exports at another Texas facility largely governed the resolution of the instant cases. The court addressed three narrow issues that remained in one or more of the cases. First, it said the determination not to prepare an environmental impact statement in two of the cases was not arbitrary and capricious. Second, it found that DOE had not acted arbitrarily and capriciously by not conducting more localized analysis of where exports would result in increased production. Finally, the court found that DOE adequately considered distributional impacts in its evaluation of “public interest” under the Natural Gas Act. Sierra Club v. U.S. Department of Energy, Nos. 16-1186, 16-1252, 16-1253 (D.C. Cir. Nov. 1, 2017).
D.C. Circuit Stayed Greenhouse Gas Emissions Standards for Truck Trailers
The D.C. Circuit Court of Appeals granted a motion by a truck trailer manufacturers trade group to stay the final rule adopted by the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration in August 2016 establishing greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles. The court said the trade group had satisfied the stringent requirements for a stay pending judicial review and stayed the rule “insofar as it purports to regulate trailers.” The court also granted the respondents’ motion to continue holding the case in abeyance pending the completion of administrative proceedings that the agencies said “could obviate the need for judicial resolution” of the issues raised by the trade group. The court directed the parties to file status reports every 90 days. Truck Trailer Manufacturers Association, Inc. v. EPA, No. 16-1430 (D.C. Cir. Oct. 27, 2017).
Second Circuit Declined to Rehear Decision Upholding New York’s Denial of Water Quality Certificate for Pipeline
On October 19, the Second Circuit Court of Appeals denied a natural gas pipeline developer’s petition for panel rehearing or rehearing en banc of its ruling that upheld the New York State Department of Environmental Conservation’s (NYSDEC’s) denial of a water quality certificate for the pipeline. The developer had argued that the Second Circuit’s conclusion that New York could consider alternative routes for Natural Gas Act projects conflicted with other precedent of the Second Circuit as well as precedent of the Supreme Court and other circuit courts of appeals. The developer also argued that the Second Circuit had prematurely decided the merits of the case when it should have held the case in abeyance until the Federal Energy Regulatory Commission (FERC) determined whether NYSDEC had waived the water quality certificate requirement by taking too long to render a decision on the developer’s application. On October 11, the developer petitioned FERC for a declaratory order finding that NYSDEC had failed to act within a reasonable period of time on its application. Constitution Pipeline Co. v. Seggos, No. 16-1568 (2d Cir. Oct. 19, 2017); In re Constitution Pipeline Co., No. CP18-5 (FERC Oct. 11, 2017).
Montana Federal Court Allowed Some Coal Mining Activity to Take Place While Federal Agency Completed Required NEPA Review
On October 31, 2017, the federal district court for the District of Montana modified its August 2017 injunction barring mining of federal coal within an area subject to a mining plan modification for which the court had vacated the environmental assessment. In an opinion issued on November 3 to explain the basis of the October 31 order, the court considered the factors for a permanent injunction. The court concluded that although the removal of federal coal would be an irreparable injury with consequences such as greenhouse gas emissions that could not be addressed through alternative judicial remedies, the balance of the hardships and the public interest warranted a “limited modification.” The court found that the “blanket injunction” it originally issued would not completely address the harms of coal mining because mining of private coal would continue at the mine regardless of the scope of the injunction; the court found that a blanket injunction would, however, inflict economic harm on the coal company’s employees and the local community. The court therefore permitted the mining company to conduct development work within federal coal in one section of the mining plan area, but ordered that the amount of federal coal “displaced” not exceed 170,000 tons. The court also required that the federal coal be stockpiled and stored at the mine and that it not be sold or shipped. In its August decision, the court had found that the Office of Surface Mining failed to comply with NEPA, including by failing to take a hard look at foreseeable greenhouse gas emissions and at the impacts of coal transportation. The mining company’s emergency motion after the August 2017 order asked the court to amend its judgment and stay the injunction. The mining company argued that the district court should not have issued the injunction without hearing legal arguments and factual evidence on the appropriate remedy, and without weighing the mandatory factors for a mandatory injunction. The company said the injunction would “[i]n a matter of weeks … cause severe consequences to the mine and its employees, in an area of Montana that can ill-afford economic displacement.” On October 2, the court denied the request for a stay of the injunction, after which the mining company appealed both the October 2 order and the court’s August 2017 decision to the Ninth Circuit and requested emergency relief. On October 25 and against on October 30, the Ninth Circuit said the appeal was not yet effective and held it in abeyance pending the district court’s resolution of the emergency motion. Montana Environmental Information Center v. U.S. Office of Surface Mining, No. 9:15-cv-00106 (D. Mont. emergency motion Sept. 11, 2017; order denying stay Oct. 2, 2017; notice of appeal Oct. 5, 2017; order modifying injunction Oct. 31, 2017; opinion and order Nov. 3, 2017), No. 17-35808 (9th Cir. emergency motion Oct. 5, 2017; order denying motion Oct. 25, 2017; emergency motion to reconsider Oct. 27, 2017; order denying motion to reconsider Oct. 30, 2017).
California Federal Court Dismissed Paper Products Company’s RICO Lawsuit Against Environmental Groups
The federal district court for the Northern District of California dismissed an action brought against Greenpeace and another environmental advocacy organization by a forest products company and its affiliates. The forest products company claimed that the environmental groups had committed violations of the Racketeer Influenced and Corruption Organizations (RICO) Act by falsely and maliciously labeling the companies as “forest destroyers” whose activities created significant climate risk. The court dismissed the RICO claims for failure to meet the heightened pleading standard required for claims sounding in fraud. In addition, the court found that the company had failed to show that the alleged RICO violations proximately caused injury to its business or property. The court also dismissed defamation and related state tort claims. The court concluded that the forest products company had not pleaded actual malice with the level of specificity required to sustain the state law claims. The court also granted motions to strike the state law claims pursuant to California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. The court granted the company leave to amend its complaint with 21 days. Resolute Forest Products, Inc. v. Greenpeace International, No. 3:17-cv-02824 (N.D. Cal. Oct. 16, 2017).
As Compliance Date for Methane Waste Rule Nears, California Federal Court Ruled That BLM Could Not Postpone Compliance, Oil and Gas Trade Groups Again Asked Wyoming Federal Court for Preliminary Injunction
On October 4, the federal district court for the Northern District of California vacated the U.S. Bureau of Land Management’s (BLM’s) postponement of the compliance date for certain provisions of the methane waste rule, which was intended to reduce waste of natural gas through venting, flaring, and leaks during oil and gas production on federal and tribal lands. The rule took effect on January 17, 2017; on June 15, 2017, BLM issued a notice of postponement of January 17, 2018 compliance dates. The court—which in September denied a motion to transfer the case to the District of Wyoming where a challenge to the rule was pending—held that BLM had acted outside its authority to postpone the “effective date” of a rule under Section 705 of the Administrative Procedure Act (APA). The court rejected the defendants’ argument that “effective date” in Section 705 also encompassed compliance dates; the court also found that BLM had violated the APA’s notice-and-comment rulemaking requirements. In addition, the court held that BLM’s postponement of the compliance dates was arbitrary and capricious because pending litigation challenging the review was not a true reason for the postponement, as required by Section 705, and because BLM “entirely failed” to consider the rule’s benefits in its determination that justice required postponement. The court stated: “New presidential administrations are entitled to change policy positions, but to meet the requirements of the APA they must give reasoned explanations for those changes and ‘address [the] prior factual findings’ underpinning a prior regulatory regime.” A day after the court’s decision, BLM published a proposed rule to temporarily suspend or delay certain requirements until January 17, 2019. California v. U.S. Bureau of Land Management, Nos. 17-cv-03804-EDL, 17-cv-3885-EDL (N.D. Cal. Oct. 4, 2017).
In late October, Western Energy Alliance and Independent Petroleum Association of America filed a motion for preliminary injunction in the lawsuit challenging BLM’s methane waste rule in the federal district court for the District of Wyoming. The rule requires that measures be taken, beginning in January 2018, to reduce venting and flaring from oil and gas production on federal and tribal lands. The court denied an earlier motion for a preliminary injunction in January 2017. The two trade groups contended that injunctive relief was warranted because their members were suffering “increasingly immediate and irreparable harm” as the compliance deadline approached. The trade groups also argued that the rule was unconstitutional and outside BLM’s authority, and that the balance of the equities and public interest also favored an injunction. Wyoming v. U.S. Department of Interior, No. 2:16-cv-00285 (D. Wyo. Oct. 27, 2017).
Wisconsin Federal Court Dismissed Pro Se Lawsuit Claiming That Republican and Conservative Policies—Including Failure to Address Climate Change—Violated Plaintiff’s Rights
The federal district court for the Western District of Wisconsin dismissed a pro se complaint that listed a number of grievances against more than 120 defendants, including the Republican National Committee, President Trump, Trump administration cabinet officials, and elected officials. The plaintiff said the defendants had violated her rights by, among other things, failing to act on global warming. The relief sought included removal of President Trump, his cabinet, and Republican senators, declaration of Hillary Clinton as president, and restructuring of the voting system. The court said the plaintiff had not alleged an injury connected to any particular action or law and that her allegations instead suggested disagreements with the defendants’ policy positions, which made her claims nonjusticiable political questions. Lindsay v. Republican National Committee, No. 3:17-cv-00123 (W.D. Wis. Oct. 2, 2017).
California Appellate Court Upheld Climate Analysis in CEQA Review for Residential Development
The California Court of Appeal reversed a trial court’s finding that the analysis of climate change and greenhouse gas emissions under the California Environmental Quality Act (CEQA) for a hillside residential development in the City of Brea was inadequate. On other issues, however, the appellate court largely affirmed the trial court’s judgment in favor of the petitioners challenging the project. With respect to the analysis of climate change impacts, the appellate court said the City of Brea had appropriately selected a significance threshold for project greenhouse gas emissions that was higher than one used for a similar residential project in 2010. The appellate court also said that the final environmental impact report for the project was not inadequate for failing to address the City’s Sustainability Plan, which the court said was not a regulation or requirement requiring an analysis of consistency under CEQA and was not detailed enough to serve as a basis for evaluating the project’s effects on greenhouse gas emissions. In addition, the appellate court upheld the residential trip generation rate used by the City for its analysis of greenhouse gas impacts. Hills for Everyone v. OSLIC Holdings LLC, No. G053160 (Cal. Ct. App. Oct. 17, 2017).
Vermont Court Said Former Attorney General Could Be Deposed on Use of Private Email Account
In a case brought under Vermont’s Public Records Law by Energy & Environment Legal Institute seeking communications of the Vermont attorney general regarding potential climate change-related investigations, a Vermont state court ruled that former Attorney General William Sorrell could be deposed on the extent to which he had documents and correspondence on a private email account that related to the plaintiff’s records request. The court said the plaintiff had presented an exhibit that showed Sorrell conducted public business on a private account to at least some extent. The court said paper work kept “in a desk drawer at home rather than at the government office” would not be exempt from public access, “no matter whether that happened unintentionally, negligently, or deliberately”—and indicated that the electronic format of documents would not alter the treatment of documents. Energy & Environment Legal Institute v. Attorney General of Vermont, No. 349-6-16WNCV (Vt. Super. Ct. Oct. 18, 2017).
Minnesota and Washington Courts Said Climate Protesters Could Present Necessity Defense at Trial; Protester Found Guilty of Criminal Mischief and Trespass After North Dakota Court Denied Permission to Present Necessity Defense
A Minnesota trial court granted four environmental activists’ motion to present a necessity defense. The defendants—two of whom acknowledged they had attempted to shut down tar sands crude oil pipelines by turning shut-off valves on the pipelines—were charged with criminal damage to property of critical public facilities, utilities, and pipelines; trespass on such facilities; and/or aiding and abetting criminal damage to property and/or trespass. The court noted that Minnesota’s standard for the necessity defense was “high” and would require the defendants to show that “the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm.” The court indicated that its grant of the motion to present evidence on the necessity defense was “not unlimited” and that it expected any evidence “to be focused, direct, and presented in a non-cumulative manner.” State v. Klapstein, Nos. 15-CR-16-413, 15-CR-16-414, 15-CR-16-425, 15-CR-16-25 (Minn. Dist. Ct. Oct. 11, 2017).
A few days after the Minnesota court’s decision, a Washington district court also ruled that a defendant could present a necessity defense. The defendant in the Washington case was charged with criminal trespass and obstructing and delaying a train in connection with a protest that blocked coal and oil trains. State v. Taylor, No. 6Z0117975 (Wash. Dist. Ct. Oct. 16, 2017).
Earlier in October, a jury in North Dakota state court found another defendant who participated in a protest by turning a valve on the Keystone Pipeline guilty of conspiracy to commit criminal mischief, criminal mischief, and criminal trespass, but not guilty of reckless endangerment. A second defendant was found guilty of trespass. The court in the North Dakota case had denied the defendants’ request to present a necessity defense. The North Dakota court found that the defendants’ offered proof would not allow a reasonable person to conclude that they had no reasonable legal alternative and that a reasonable person could not conclude based on the defendants’ proof that the harms of climate change, “however serious they might be, were imminent and certain to occur absent defendants’ acts.” The court also found that expert testimony both as to the efficacy of nonviolent civil disobedience as a means to political change and as to the defendants’ belief that their actions would reduce the amount of tar sands transported through the pipeline did not reach the level of proof necessary to show a direct, causal relationship between the defendants’ acts and the avoidance of harm. State v. Foster, No. 34-2016-CR-00187 (N.D. Dist. Ct. decision Sept. 29, 2017; verdict Oct. 6, 2017).
NEW CASES, MOTIONS, AND NOTICES
Murray Energy Sought Supreme Court Review of Fourth Circuit’s Dismissal of Clean Air Act Jobs Study Case
The coal company Murray Energy Corporation and affiliated companies filed a petition for writ of certiorari asking the Supreme Court to overturn the Fourth Circuit’s dismissal of their action that sought to compel EPA to conduct a study of the Clean Air Act’s employment effects and particularly its effects on the coal industry. The Fourth Circuit concluded that courts lacked jurisdiction to review EPA’s management of the “broad, open-ended” mandate of Section 321(a) of the Clean Air Act requiring EPA to conduct evaluations of potential employment losses and shifts resulting from its administration and enforcement. The petition to the Supreme Court presented two questions: (1) whether a federal court may decline jurisdiction to compel agency action where the statutory requirements for a claim have been satisfied, and (2) whether EPA’s refusal to comply with Section 321 was within the bounds of a federal court’s authority to correct. Murray Energy also moved in the federal district court for the Northern District of West Virginia to amend the order of dismissal with prejudice issued by the court on October 2, 2017. Murray Energy argued that the dismissal should have been without prejudice because the Fourth Circuit dismissed based on subject matter jurisdiction, not the merits of the case. On November 3, the district court granted Murray Energy’s motion and dismissed the action without prejudice for want of jurisdiction. Murray Energy Corp. v. Pruitt, No. 17-478 (U.S. Sept. 27, 2017); No. 5:14-cv-00039 (N.D. W. Va. order granting motion Nov. 3, 2017; motion to amend Oct. 26, 2017; order of dismissal Oct. 2, 2017).
States and Environmental Groups Asked Second Circuit to Vacate or Stay Delay in Penalty Increases for Vehicle Standard Violations
States and environmental groups asked the Second Circuit Court of Appeals for summary vacatur of the National Highway Traffic Safety Administration’s (NHTSA’s) indefinite delay of a rule increasing civil penalties for violations of fuel economy standards. The states and environmental groups contended that summary vacatur was warranted because NHTSA lacked authority to delay the rule’s effective date and failed to comply with the Administrative Procedure Act’s notice and comment requirements. Alternatively, the states and environmental groups asked the D.C. Circuit to stay the delay pending judicial review. Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, Nos. 17-2780, 17-2806 (2d Cir. Oct. 24, 2017).
After Proposing Repeal of Clean Power Plan, EPA Sought Continued Abeyance of Pending Cases in D.C. Circuit
On the same day that EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan, EPA asked the D.C. Circuit Court of Appeals to continue to hold the cases challenging the Clean Power Plan in abeyance pending the conclusion of rulemaking. States and public health and environmental organizations that intervened as respondents in the cases opposed the continued abeyance. The public health and environmental organizations argued that EPA had not satisfied the requirements for abeyance and that the court should decide the fully briefed and argued matter because “the case involves a time-sensitive statutory obligation to protect the public health and welfare from grave threats.” The organizations argued that “[t]he impacts of climate change are increasingly evident and dire” and that the “unaddressed threats” and EPA’s “unmet statutory duties” counseled against the court exercising its discretion in a way that would cause further delay. The states similarly argued that continued abeyance would be inappropriate because EPA had not proposed an alternative way to reduce greenhouse gas emissions from existing power plants and a “pure repeal … would put the agency in violation of its statutory duty to regulate carbon dioxide from existing power plants under the Clean Air Act, a duty the agency is not contesting it must fulfill.” Both sets of intervenors also said the court should limit any abeyance period to 120 days. West Virginia v. EPA, Nos. 15-1363 (D.C. Cir. EPA status report Oct. 10, 2017; responses to status report Oct. 17, 2017).
Stanford Professor Sued Scientific Journal and Article Authors Who Critiqued His Work
Mark Jacobson (a professor at Stanford) sued Christopher Clack (founder and CEO of Vibrant Clean Energy, LLC) and the National Academy of Sciences (NAS) in the Superior Court of the District of Columbia alleging defamation, breach of contract, and promissory estoppel claims in connection with the publication of an article by Clack and other co-authors that critiqued an article published by Jacobson. In December 2015, Proceedings of the National Academy of Sciences (PNAS) published an article by Jacobson and co-authors, “Low-cost solution to the grid reliability problem with 100% penetration of intermittent wind, water, and solar for all purposes.” In June 2016, Clack and co-authors submitted a critique of the Jacobson article to PNAS, which PNAS shared with Jacobson in February 2017 when the journal asked if he would like to submit a letter to the editor commenting on the Clack article. Jacobson alleged that he informed PNAS that the Clack article contained “thirty false statements and five materially misleading statements,” and that he repeatedly complained to NAS and asked for corrections. He contended that when PNAS published a slightly revised version of the Clack article in June 2017, it corrected almost none of the statements that Jacobson said were false and misleading. The disputes concerned various modeling procedures and assumptions, issues concerning the amount of hydropower that would be available, and other technical matters. The complaint alleged that the Clack article received extensive press coverage and that “[t]he resulting headlines and articles made Dr. Jacobson and his co-authors look like poor, sloppy, incompetent, and clueless researchers.” Jacobson asserted that the Clack article did not disclose alleged conflicts of interest of some of Clack’s co-authors, including that one is associated with a nuclear advocacy organization and another has received funding from Exxon and various other fossil fuel companies. Jacobson also asserted that NAS violated its own publication policies in numerous ways and that only three of the 21 listed co-authors actually worked on the Clack article, artificially inflating its credibility. The complaint asserted defamation claims against both Clack and NAS and also asserted breach of contract and promissory estoppel claims against NAS for publishing Jacobson’s initial article and then not adhering to its publication policies in the way it handled the Clack article. Jacobson demanded damages from Clack and NAS “to be determined at trial believed to be in excess of Ten Million Dollars,” plus punitive damages and attorney fees. Jacobson v. National Academy of Sciences, No. 2017 CA 006685 B (D.C. Super. Ct. Sept. 29, 2017).
Pipeline Company Asked Federal Court to Declare That Federal Law Preempted New York Permitting Requirements
A pipeline developer filed a lawsuit in the federal district court for the Northern District of New York claiming that the Natural Gas Act preempted NYSDEC from applying any state permitting requirements that would delay or interfere with the construction and operation of a 7.8-mile pipeline project known as the Valley Lateral Project. The project would provide natural gas to a new power plant in Orange County. In August 2017, NYSDEC conditionally denied the developer’s joint application for state law stream disturbance and freshwater wetlands permits, as well as for a water quality certificate pursuant to Section 401 of the Clean Water Act, asserting that a recent D.C. Circuit case regarding FERC’s obligation to consider greenhouse gas emissions in the environmental review for a pipeline rendered FERC’s review of the Valley Lateral Project insufficient. Other developments regarding the Valley Lateral Project included NYSDEC request to FERC for rehearing and stay of the order finding that NYSDEC had waived its jurisdiction to act on the application for a water quality certificate pursuant to Section 401. Millennium Pipeline Co. v. Seggos, No. 1:17-cv-01197 (N.D.N.Y., filed Oct. 27, 2017); In re Millennium Pipeline Co., No. CP16-17-000 (FERC Oct. 13, 2017).
Environmental Groups Filed Lawsuit Challenging Colorado River Diversion Project and Alleging Insufficient Analysis of Climate Change Impact on Water Availability
Five environmental groups filed a lawsuit in federal district court in Colorado challenging federal approvals of a project facilitating the diversion of water from the Colorado River to fill a new 90,000 acre-foot reservoir on Colorado’s Front Range. The plaintiffs called the project “ill-conceived and unnecessary” and alleged that the federal government’s predisposition to pursue the project to fix a failed project exemplified “sunk cost bias” and improperly limited its consideration of alternatives. The plaintiffs contended that the U.S. Bureau of Reclamation (Reclamation) had failed to comply with NEPA and that the U.S. Army Corps of Engineers had violated the Clean Water Act. The plaintiffs claimed among other things that Reclamation had failed to fully analyze the potential impacts of climate change on water availability for the project; the complaint alleged that “[a]lthough Reclamation considered climate change in a limited fashion, Reclamation did not include its effects quantitatively, did not utilize current scientific findings about climate change, and did not provide a rational explanation of how climate change influenced its decisionmaking.” Save the Colorado v. U.S. Bureau of Reclamation, No. 10/ (D. Colo., filed Oct. 26, 2017).
Sierra Club Filed Lawsuit to Compel EPA to Complete Reports on Renewable Fuels Standards Environmental Impacts
Sierra Club filed a lawsuit against EPA Administrator Scott Pruitt alleging that the EPA administrator had failed to perform non-discretionary duties under the Clean Air Act and the Energy Independence and Security Act (EISA) to submit triennial reports to Congress in 2013 and 2016 on the Renewable Fuel Standard program’s environmental and resource impacts and to complete an “anti-backsliding” study to determine the program’s impacts on air quality. The anti-backsliding study was due in June 2009, 18 months after EISA’s enactment. Sierra Club asserted that the delays in preparing the reports undermined the purpose of the reporting requirements, which Sierra Club said was to ensure that the Renewable Fuel Standard program was addressing climate change without adversely affecting the environment. Sierra Club v. Pruitt, No. 1:17-cv-02174 (D.D.C., filed Oct. 19, 2017).
Wyoming Asked to Intervene to Defend Delisting of Yellowstone Grizzlies
Wyoming filed a motion in Montana federal court to intervene in support of the defendants in the lawsuit challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision to remove the Greater Yellowstone Ecosystem grizzly bear from the list of threatened and endangered species. The plaintiffs’ claims include that FWS failed to address climate change impacts on the grizzly bears’ food sources. Wyoming argued that it was entitled to intervene as of right because it had a significant protectable interest that could be impaired if the plaintiffs prevailed. Wyoming argued that the vast majority of the grizzly bear distinct population segment at issue was located within its boundaries and that it had long participated in the management of grizzly bears in the Greater Yellowstone Ecosystem alongside the federal government, Montana, and Idaho. Wyoming asserted that it had a significant interest in exercising sovereign authority over wildlife in its borders and that its interests were different from those of the federal defendants. In the alternative, Wyoming argued that the court should grant permissive intervention. Northern Cheyenne Tribe v. Zinke, No. 9:17-cv-00119 (D. Mont. Oct. 11, 2017).
Competitive Enterprise Institute Sought State Department Correspondence on Climate Negotiations
Competitive Enterprise Institute (CEI) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia seeking to compel the U.S. Department of State to produce correspondence of two officials related to climate change, the December 2016 Paris Agreement, the “legal form” of the Paris Agreement’s provisions, the Kyoto Protocol, and the United Nations Framework Convention on Climate Change. The two officials were Todd Stern, the former Special Envoy for Climate Change, and Susan Biniaz, formerly the State Department’s lead climate lawyer. CEI also sought email correspondence between the two officials and people at the Natural Resources Defense Council or World Wildlife Fund. Competitive Enterprise Institute v. U.S. Department of State, No. 1:17-cv-02032 (D.D.C., filed Oct. 3, 2017).
Center for Biological Diversity Filed Lawsuit Seeking Records on Termination of National Climate Assessment Advisory Committee
Center for Biological Diversity (CBD) filed a FOIA lawsuit against the National Oceanic and Atmospheric Administration and the Department of Commerce in the federal district court for the District of Columbia, seeking to compel the production of records “that would shed light on the recent and sudden termination of the ‘Advisory Committee for the Sustained National Climate Assessment.’” CBD alleged that the Committee was established after the charter for the National Climate Assessment and Development Advisory Committee expired in 2015 to support development of the National Climate Assessment pursuant to the Global Change Research Act. CBD sought records regarding the termination of the committee in August 2017, including information on who participated in the decisionmaking process, what factors were considered, and how the Committee’s unfinished work—including work in support of the Fourth National Climate Assessment, which is due in 2018—would be completed. Center for Biological Diversity v. National Oceanic and Atmospheric Administration, No. 1:17-cv-02031 (D.D.C., filed Oct. 3, 2017).
Lawsuit Filed in Nevada Federal Court Alleging Inadequate Environmental Review for Oil and Gas Lease Sale
Center for Biological Diversity and Sierra Club filed a lawsuit in the federal district court for the District of Nevada seeking to overturn BLM’s oil and gas lease sale for 195,732 acres of federal estate. The plaintiffs alleged that the environmental assessment on which BLM relied contained inadequate analysis of many of the environmental impacts of oil and gas development, including greenhouse gas emissions and climate change. They contended that BLM minimized impacts by determining that few environmental impacts resulted from the lease sale stage and that impacts would be avoided at future stages of review. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 3:17-cv-00553 (D. Nev., filed Sept. 11, 2017).
Youth Plaintiffs Commenced Lawsuit Alleging That Alaska’s Climate and Energy Policy Violated Constitutional Rights
Sixteen youth plaintiffs filed a lawsuit against the State of Alaska, its governor, and Alaska state agencies in Alaska state court alleging that the defendants had violated their rights under the Alaska constitution by implementing a “Climate and Energy Policy” that authorized and facilitated activities producing greenhouse gas emissions and failed to implement climate mitigation standards. The plaintiffs alleged that the State’s denial in September 2017 of their rulemaking petition requesting reductions of Alaska’s greenhouse gas emissions provided evidence of this Climate and Energy Policy and violated their constitutional rights. The plaintiffs charged that the defendants’ conduct infringed on their fundamental substantive due process rights to life, liberty, and property and other unenumerated rights, including the right to a stable climate system. The plaintiffs further contended that the defendants had knowingly and with deliberate indifference created a dangerous situation for the plaintiffs in violation of their substantive due process rights. In addition, the plaintiffs asserted an equal protection claim, contending that they should be treated as a protected class because some of the plaintiffs were below the voting age and because the “overwhelming majority of harmful effects” caused by the defendants’ actions would occur in the future; the plaintiffs asserted that “the harm caused by Defendants has denied Youth Plaintiffs the same protection of fundamental rights afforded to prior and present generations of adult citizens.” The complaint also alleged a violation of Alaska’s Public Trust Doctrine. The plaintiffs sought declaratory relief, an injunction barring the defendants from further implementing their Climate and Energy Policy, and orders requiring the defendants to complete an accounting of the State’s greenhouse gas emissions and to develop a climate recovery plan to achieve “science-based numeric reductions of Alaska’s in-boundary and extraction-based emissions consistent with global emissions reductions rates necessary to stabilize the climate system and protect the vital Public Trust Resources on which Youth Plaintiffs depend.” Sinnok v. Alaska, No. 3AN-17-__ (Alaska Super. Ct., filed Oct. 27, 2017).
Coal Terminal Developer Filed Lawsuit Challenging Washington State’s Denial of Water Quality Certification
A company proposing to develop a coal export terminal on the lower Columbia River in Washington State filed a lawsuit alleging that the Washington State Department of Ecology (Ecology) and its director had violated federal and state law and the U.S. and Washington State constitutions by denying “with prejudice” the company’s application for a water quality certification under Section 401 of the Clean Water Act. The company contended that the defendants had “turned section 401 on its head by denying the certification based on purported impacts of every kind other than water quality” and said that Ecology “created from whole cloth a uniquely onerous and unfair environmental review process … that it justified based on its animus towards the commodity that would be handled.” The company’s claims included that the Clean Water Act preempted the denial and that the denial order was ultra vires, a misapplication or misinterpretation of the law, at odds with previous Ecology practice, arbitrary and capricious, and unsupported by substantial evidence. In support of its claim that the denial was arbitrary and capricious, the complaint alleged that “[a]lthough the Denial does not mention greenhouse gas … emissions (not even once),” the defendants had speculated on social media about the new emissions associated with the project; the company alleged that the defendants’ social media posts demonstrated their bias against the project. The company also claimed that the denial constituted a deprivation of rights actionable under 42 U.S.C. § 1983 and violated equal protection. The complaint also disclosed claims of preemption under the Ports and Waterways Safety Act and the Interstate Commerce Clause Termination Act and violation of the Commerce Clause. The company said it would soon file a federal lawsuit to pursue these claims. In addition, the company filed an appeal with the Washington State Pollution Control Hearings Board. Millennium Bulk Terminals-Longview, LLC v. Washington State Department of Ecology, No. ___ (Wash. Super. Ct., filed Oct. 24, 2017); Millennium Bulk Terminals-Longview, LLC v. Washington State Department of Ecology, No. P17-090 (Wash. PCHB, filed Oct. 24, 2017).
Group Sought New York Attorney General’s Emails Related to Alleged “Climate-RICO” Scheme
Energy & Environmental Legal Institute (E&E Legal) filed a lawsuit in New York Supreme Court to compel the New York attorney general to produce records in response to E&E Legal’s Freedom of Information Law request for correspondence between Attorney General Eric Schneiderman and former Vermont Attorney General William Sorrell in which Schneiderman used a Gmail account. In a press release, E&E Legal said the lawsuit was part of its “ongoing attempt to obtain public records relating to Schneiderman’s ‘climate-RICO’ scheme” with other state attorneys general. Energy & Environmental Legal Institute v. Attorney General of New York, No. __ (N.Y. Sup. Ct., filed Oct. 17, 2017).
Challenge to Settlement in Utility Rate-Setting Case in New Mexico Cited Failure to Quantify Coal Plant’s Carbon Emission Risks
New Energy Economy—a non-profit organization founded “to build a carbon-free energy future for our health and the environment—filed a brief requesting that the New Mexico Public Regulation Commission reject a “black box settlement” reached by the parties to a case concerning the Public Service Company of New Mexico’s (PNM’s) request for a $791.6 million rate increase. New Energy Economy said the settlement was “not fair, just and reasonable, and in the public interest” and asked the Commission to deny PNM all costs associated with the Four Corners Power Plant, a coal-fired facility. New Energy Economy said PNM’s testimony failed to include “even one word about the risks and uncertainties of the use of coal” and argued that PNM was required to quantify carbon emission risks or explain why it could not do so. In re Public Service Company of New Mexico, No. 16-00276-UT (NMPRC Sept. 8, 2017).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
New Zealand High Court Dismissed Law Student’s Challenge to Greenhouse Gas Reduction Targets, but Said Review of Targets Was Required After IPCC Fifth Assessment Report
Sarah Thomson, a New Zealand law student, filed a Statement of Claim in 2015 against New Zealand’s Minister of Climate Change Issues alleging that the Minister had failed in several respects regarding the setting of greenhouse gas emissions reduction targets required by New Zealand’s Climate Change Response Act of 2002. That Act implements New Zealand’s responsibilities as a ratifying Annex I member of the United Nations Framework Convention on Climate Change (UNFCCC). It requires the Minister to set an emissions reduction target in keeping with the statements of the Intergovernmental Panel on Climate Change (IPCC), and to consider whether to revise that target as the IPCC issues updated findings. In March 2011, pursuant to the 2002 Act, the Minister had set a target of 50% reduction from 1990 greenhouse gas (GHG) emissions levels by 2050. The Minister did not review or revise that target following the 2014 issuance of the IPCC’s Fifth Assessment Report. In July 2015, in advance of the 21st Conference of the Parties to the UNFCCC in Paris, the Minister submitted New Zealand’s intended nationally determined contribution (INDC)—and then subsequently a nationally determined contribution (NDC)—consistent with a “provisional target” of only 30% reduction from 2005 levels by 2030. As Thomson’s Statement of Claim noted, “this equates to a reduction of 11% below New Zealand’s 1990 emission levels by 2030,” and thus “will not, if adopted by other developed countries in combination with appropriate targets set by developing countries, stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” Thus Thompson challenged both the target set pursuant to the 2002 law and the target set as part of New Zealand’s NDC pursuant to the United National Convention on Climate Change and the Paris Agreement, both ratified by New Zealand.
The High Court of New Zealand issued its decision after the 2017 election had ousted the prior government, replacing it with a government whose members had campaigned on a commitment to eliminate all GHG emissions by 2050. Nonetheless, the court reviewed both the 2030 and 2050 targets set by the prior government’s Minister and ruled on their legality. With respect to the 2050 target, the court determined that although the Minister had discretion under the 2002 act to review and determine New Zealand’s emissions reduction target for 2050, that discretion was limited by the act’s purpose and by the evidence contained in IPCC Fifth Assessment Report (AR5), both of which argued strongly for a lower national emissions target than the one set based on the IPCC’s Fourth Assessment Report (AR4). However, because it was not clear that a review of the 2050 target in light of AR5 would certainly have led to the target’s revision, and because the question was largely mooted by the recent election (“[s]uch a declaration would now be of historic interest only”), the court concluded merely that the Minister should have reviewed the target, but not that a decision to maintain the existing target after such a review would necessarily have been unlawful. With respect to the 2030 target in New Zealand’s INDC and NDC, the court determined that it had authority to review the Minister’s setting of that target but no grounds for invalidating it because the Minister had not made “any reviewable error for which the Court may intervene.”
Regarding the authority of the courts to review climate change policy, the decision noted “it may be appropriate for domestic courts to play a role in Government decision making about climate change policy . . . The courts have not considered the entire subject matter is a “no go” area, whether because the state had entered into international obligations, or because the problem is a global one and one country’s efforts alone cannot prevent harm to that country’s people and their environment, or because the Government’s response involves the weighing of social, economic and political factors, or because of the complexity of the science. The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change. The various domestic courts have held they have a proper role to play in Government decision making on this topic, while emphasising that there are constitutional limits in how far that role may extend. The IPCC reports provide a factual basis on which decisions can be made. Remedies are fashioned to ensure appropriate action is taken while leaving the policy choices about the content of that action to the appropriate state body.” Thomson v. Minister for Climate Change Issues [2017] NZHC 733
Scottish Wind Farm Approval Survived Challenge
Petitioners asked the court to overturn the approval of a 22-turbine, 50 megawatt on-shore wind farm on the grounds that the Scottish Ministers who issued the decision failed to offer “clear and cogent” reasons for doing so in light of adverse impacts to the region’s distinctive character and wilderness areas. The petitioners emphasized that Scottish National Heritage (SNH) had recommended against approval of the wind farm because of its adverse impacts, and that the Town & Country Planning (Scotland) Act 1997 requires the Ministers to consult with SNH and others. However, the Highland Council, the local planning authority, had concluded that the wind farm would have minimal impacts on view sheds. The court rejected the petitioners’ arguments. It explained that the Ministers were not required to agree with the recommendations they received from consulting bodies, but only to explain their decision in full and to respond to points raised by consulting bodies if necessary. Because the Ministers’ explanation reflected a balancing of the relevant factors and met the “clear and cogent” standard in the court’s view, it would stand. Wildland Ltd. and the Welbeck Estates v. Scottish Ministers [2017] CSOH 113
