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 # 104.
Montana Federal Court Denied Motions to Dismiss Challenges to Keystone XL Pipeline
The federal district court for the District of Montana denied motions to dismiss lawsuits challenging the presidential permit for the Keystone XL Pipeline. The court rejected the federal defendants’ and intervenor TransCanada Corporation’s (TransCanada’s) contention that issuance of the permit was unreviewable presidential action. The court found that President Trump had waived any authority he retained to make the final decision on the presidential permit when he issued a presidential memorandum on the Keystone XL Pipeline on January 24, 2017. The court said the State Department had taken final agency action when it published the record of decision and national interest determination for the pipeline and issued the presidential permit. The court also found that the federal defendants and TransCanada had not met their burden of establishing that Congress had committed to agency discretion the State Department’s determinations. In addition, the court found that the plaintiffs had alleged procedural injuries that could be redressed through the procedural remedy of adequate review under the National Environmental Policy Act (NEPA). The plaintiffs alleged, among other claims, that the defendants failed to adequately disclose climate impacts and failed to consider alternatives that would obviate the need for more crude oil. The court also allowed an Endangered Species Act claim to proceed and decided to hold a NEPA claim against the Bureau of Land Management in abeyance until BLM issued a final decision. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. Nov. 22, 2017); Northern Plains Resource Council v. Shannon, No. 4:17-cv-00031 (D. Mont. Nov. 22, 2017).
DECISIONS AND SETTLEMENTS
D.C. Circuit Denied Emergency Stay of Atlantic Sunrise Pipeline Project
On October 30, 2017, the petitioners challenging FERC’s authorization of the Atlantic Sunrise pipeline project asked the D.C. Circuit Court of Appeals for an emergency stay. The petitioners contended that they had a high likelihood of success on their claims that FERC had not adequately analyzed the climate impacts of the end use of the natural gas transported by the project and had not considered indirect impacts of shale gas drilling that that the project would induce. The petitioners also argued that irreparable environmental injury would occur in the absence of a stay, that a stay would not substantially harm other parties, and that a stay was in the public interest. On November 8, the D.C. Circuit denied the motion for an emergency stay. Allegheny Defense Project v. Federal Energy Regulatory Commission, No. 17-1098 (D.C. Cir. order denying motion Nov. 8, 2017; emergency motion for stay Oct. 30, 2017).
Michigan Community College Reached Settlement with Students Whose Pro-Fossil Fuel Activities Were Halted
A Michigan federal court dismissed an action after a community college in Michigan reached a settlement agreement with several students and a student organization who alleged that the college and officials at the college violated their rights to free speech and equal protection. The students and the organization brought the lawsuit after campus police allegedly stopped the students from talking with other students at an open area on campus about fossil fuels and from offering “educational literature about the benefits of fossil fuels to human flourishing” and collecting signatures to support fossil fuels. The campus police allegedly told the students that their expressive activities required approval by college administrators. The settlement agreement provided that the college would not enforce the advance permission requirements of its expressive activity policy for students and would undertake a revision of the policy. The college also agreed to pay $10,000 to Alliance Defending Freedom for the plaintiffs’ attorneys’ fees and costs. Turning Point USA (TPUSA) v. Macomb Community College, No. 2:17-cv-12179 (E.D. Mich. order of dismissal Nov. 13, 2017; settlement Nov. 8, 2017).
Delaware Bankruptcy Court Ruled That Purchaser of Debtor’s Power Plant Was Not Liable for Pre-Transfer California Cap-and-Trade Obligations
The federal bankruptcy court for the District of Delaware ruled that the purchaser of a natural gas power plant in California from a company that had emerged from bankruptcy did not have successor liability for the debtor company’s pre-transfer compliance obligations under California’s cap-and-trade program. Triennial compliance obligations arising from emissions from 2015 to 2017 come due on November 1, 2018; the cost of complying with the debtors’ compliance obligations was estimated to be approximately $63 million. The bankruptcy court said the cap-and-trade regulations covered only entities, not facilities themselves, and that a purchaser would only be covered after purchasing and operating a facility. The court also concluded that the regulations did not provide for successor liability or otherwise make purchasers liable for the emissions of an entity formerly covered by the regulations. In addition, the court rejected the California Air Resources Board’s argument that the compliance obligations were not an “interest” under the Bankruptcy Code that could escape successor liability. In re La Paloma Generating Co., No. 16-12700 (Bankr. D. Del. Nov. 9, 2017).
California Appellate Court Said Review of Oil Refinery Project’s Greenhouse Gas Impacts Was Acceptable, But Found Fault with Other Aspects of Review
The California Court of Appeal found that the Kern County’s review under the California Environmental Quality Act (CEQA) of a project modifying an oil refinery in Bakersfield to accept lighter crude oil from the Bakken formation in North Dakota was inadequate in two respects. The appellate court said the environmental impact report (EIR) contained factual error regarding federal railroad safety data and improperly concluded that the Interstate Commerce Commission Termination Act of 1995 preempted CEQA review of the environmental impacts of off-site rail activities. The appellate court rejected, however, claims that Kern County had used an inappropriate baseline year for the review, that the EIR’s disclosure of greenhouse gas emissions was misleading and deceptive, and that the County had improperly based its determination that the project’s greenhouse gas emissions would not be significant on the facility’s compliance with the requirements of California’s cap-and-trade program. Association of Irritated Residents v. Kern County Board of Supervisors, No. F073892 (Cal. Ct. App. Nov. 21, 2017).
California Court of Appeal Said 2011 EIR for San Diego Transportation Plan Did Not Adequately Address Mitigation of Greenhouse Gas Impacts
The California Court of Appeal ruled that substantial evidence did not support the determination of the San Diego Association of Governments (SANDAG) that an EIR prepared for a regional long-term transportation plan in 2011 adequately addressed mitigation for the plan’s impacts on greenhouse gas emissions. The Court of Appeal issued this decision on remand from the California Supreme Court, which in July 2017 upheld SANDAG’s approach to disclosures of the plan’s greenhouse gas emissions and potential inconsistency with statewide emissions reduction goals. As a threshold matter on remand, the Court of Appeal rejected SANDAG’s argument that the challenges to the 2011 transportation plan and its EIR were moot because SANDAG had subsequently adopted versions of the transportation plan and EIR that superseded the versions under review. On the merits of the appeal, the court considered whether the 2011 EIR had adequately addressed mitigation of the significant greenhouse gas emissions impacts it disclosed and concluded that it had not. The Court of Appeal stated: “Missing from the EIR is what [the California Environmental Quality Act] requires: a discussion of mitigation alternatives that could both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented.” Instead, the EIR had “considered and deemed feasible three measures requiring little to no effort to implement and assuring little to no concrete steps toward emissions reduction” and had “considered and deemed infeasible three particularly onerous measures” that “would be difficult, if not impossible, to enforce and [that required] implementation resources not readily available.” Cleveland National Forest Foundation v. San Diego Association of Governments, No. D063288 (Cal. Ct. App. Nov. 16, 2017).
Arizona Court Again Ordered Disclosure of Climate Scientists’ Emails
On remand from the Arizona Court of Appeals, the Arizona Superior Court again granted a motion to require disclosure under the state public records law of emails of two climate scientists at the University of Arizona. The Superior Court indicated that the Court of Appeals had mistakenly concluded that the Superior Court had not considered an exemption from the public records law for certain university records in its earlier decision requiring the disclosure. The exemption at issue applies to “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research and prepublication peer reviews.” In its ruling on remand, the Superior Court made explicit findings (1) that to the extent the scientists’ emails fell within this exemption’s scope, the exemption was inapplicable because “the subject matter of the documents has become available to the general public,” (2) that the subject matter of any emails that did not fall within the scope of the exemption also had become available to the general public, and (3) that disclosure of the emails would not be contrary to the best interests of the State. Energy & Environmental Legal Institute v. Arizona Board of Regents, No. C20134963 (Ariz. Super. Ct. Nov. 30, 2017). The Climate Science Legal Defense Fund, which filed an amicus brief in the appellate court in support of the scientists, today released a 50-state report on research protections in open records law. You can review the report here.
Jury Convicted Environmental Activist in Montana Valve-Turning Case
A jury in Montana state court in Chouteau County convicted an environmental activist on charges of criminal mischief and trespassing in connection with his closure of a valve on a pipeline carrying crude oil from Canada to the United States. Earlier in 2017, the court denied the defendant’s request to present a necessity defense based on testimony about the risks of climate change. Sentencing was scheduled for January 2, 2018. The defendant’s attorneys indicated he planned to appeal. State v. Higgins, No. DC-16-18 (Mont. Dist. Ct. Nov. 22, 2017).
NEW CASES, MOTIONS, AND NOTICES
California Counties and City Appealed Bankruptcy Court Order Enjoining Climate Change Lawsuits Against Peabody Energy
San Mateo and Marin Counties and the City of Imperial Beach appealed the order of a federal bankruptcy court in Missouri enjoining them from pursuing their climate change lawsuits against the coal company Peabody Energy Corporation (Peabody). The Counties and City filed their lawsuits in California state court seeking damages for injuries caused by the production, promotion, marketing and use of fossil fuel products and concealment of the hazards of such products by Peabody and other fossil companies. The fossil fuel companies removed the cases to federal court, where a motion to remand is pending. In re Peabody Energy Corp., No. 16-42529 (Bankr. E.D. Mo. notice of appeal Nov. 26, 2017); County of San Mateo v. Chevron Corp., No. 3:17-cv-04929 (N.D. Cal. motion to remandand memorandum in support of motion Sept. 25, 2017 and Oct. 23, 2017).
Oil and Gas Companies Removed San Francisco and Oakland Climate Cases to Federal Court; Court Denied Companies’ Motion to Relate to Other Pending Cases
On October 20, 2017, the five oil and gas company defendants in the City of San Francisco’s and City of Oakland’s climate change nuisance lawsuits removed the cases to federal court. The defendants asserted that the complaints arose under federal laws and treaties, presented substantial federal questions, and presented a claim preempted by federal law. The defendants then moved to relate the cases to the lawsuits brought by San Mateo and Marin Counties and the City of Imperial Beach. San Francisco and Oakland opposed relating the cases; the plaintiffs in the other actions did not take a position. On November 8, 2017, the Executive Committee for the Northern District of California denied the motion to relate the cases. People of State of California v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. order Nov. 8, 2017; notice of removal Oct. 20, 2017).
Climate Change-Based Constitutional Claims Filed Against Federal Government in Pennsylvania Federal Court
Clean Air Council and two children filed a federal lawsuit in the Eastern District of Pennsylvania asserting claims of due process and public trust violations against the United States, the president, the Department of Energy, Secretary of Energy Rick Perry, the Environmental Protection Agency (EPA), and EPA Administrator Scott Pruitt. The complaint seeks a declaration that the defendants cannot implement regulatory rollbacks that increase the frequency of or intensify the effects of climate change “based on junk science in violation of Plaintiffs’ constitutional rights to a life-sustaining climate system and the public trust doctrine.” Clean Air Council v. United States, No. 2:17-cv-04977 (E.D. Pa., filed Nov. 6, 2017).
Ninth Circuit to Hear Oral Argument on December 11 in Young People’s Climate Case
The Ninth Circuit Court of Appeals scheduled oral argument for Monday, December 11 on the United States’ petition for writ of mandamus seeking to bar the climate lawsuit filed by young people and “future generations” from proceeding in federal district court in Oregon. In November 2016, the district court denied motions to dismiss the action, allowing public trust and due process claims to proceed. After unsuccessfully seeking permission for interlocutory appeal, the United States filed the petition for writ of mandamus, arguing that the district court committed clear error in denying the motions to dismiss and was acting outside its jurisdiction. United States v. United States District Court for the District of Oregon, No. 17-71692 (9th Cir. order Nov. 16, 2017).
Sierra Club Sought Stay of Ohio-to-Michigan Pipeline But Then Asked for Voluntary Dismissal After Learning Developer Had Purchased Member’s Property
On November 13, 2017, Sierra Club filed an emergency motion for stay of construction of the 257-mile NEXUS natural gas pipeline between Ohio and Michigan. Sierra Club argued that it had a high likelihood of success on the merits because, among other things, the Federal Energy Regulatory Commission (FERC) had violated the National Environmental Policy Act by failing to evaluate the effects of greenhouse gas emissions. Sierra Club preemptively countered the FERC’s anticipated argument that the D.C. Circuit lacked jurisdiction to consider the challenge to the pipeline because a request for rehearing was still pending before FERC. Sierra Club argued that FERC had denied the request for rehearing by operation of law by failing to act on the request within 30 days. On November 20, Sierra Club filed a motion seeking voluntary dismissal of the proceeding without prejudice after learning that the pipeline’s developer had purchased the property of one of the declarants supporting its emergency motion—a Sierra Club member who owned properties through which the pipeline would cut. FERC and the pipeline developer opposed dismissal without prejudice. Sierra Club v. Federal Energy Regulatory Commission, No. 17-1236 (D.C. Cir. FERC and NEXUS opposition to dismissal without prejudice Nov. , 2017; motion for voluntary dismissal Nov. 20, 2017; stay motion Nov. 13, 2017).
FERC Denied Requests from New York Department of Environmental Conservation to Stop Valley Lateral Pipeline Project; Second Circuit Imposed Administrative Stay
On November 15, 2017, FERC denied the New York State Department of Environmental Conservation’s (NYSDEC’s) request for rehearing of FERC’s determination that NYSDEC had waived its authority to issue a water quality certification for the Valley Lateral pipeline project, a 7.8-mile pipeline and related facilities that will transport natural gas from the mainline system to a new power plant in Orange County, New York. A day later, FERC denied NYSDEC’s request to reopen the record or rehear FERC’s November 2016 authorization of the project. FERC said NYSDEC’s contention that the D.C. Circuit’s decision in Sierra Club v. FERC, No. 16-1329, required FERC to quantify the project’s downstream greenhouse gas emissions and consider their impacts was untimely and that, in any event, the analysis had already been done. Earlier in the month, the Second Circuit Court of Appeals granted an administrative stay pending its review of NYSDEC’s emergency petition for a writ of prohibition asking the Second Circuit to stay the effectiveness of FERC’s Notice to Proceed allowing the developer to construct the project. After FERC denied NYSDEC’s request for rehearing, the pipeline’s developer moved to dismiss the petition and dissolve the stay immediately. New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission, No. 17-3503 (2d Cir. petition Oct. 30, 2017; administrative stay Nov. 2, 2017); In re Millennium Pipeline Company, L.L.C., No. CP16-17-003 (FERC order on rehearing of November 2016 authorization Nov. 16, 2017; order on rehearing of declaratory order Nov. 15, 2017).
Lawsuit Challenging Copper Mine Alleged Failures to Consider Climate Impacts
Environmental groups filed a lawsuit in federal court in Arizona challenging approvals for a copper mine. The complaint alleged, among other things, that the U.S. Forest Service had failed to analyze the greenhouse gas emissions that would result from the smelting of the ore. The complaint also alleged that the combined adverse effects of groundwater drawdown and climate change had not been examined quantitatively. Save the Scenic Santa Ritas v. U.S. Forest Service, No. 4:17-cv-00576 (D. Ariz., filed Nov. 27, 2017).
Plaintiff Opposed Exxon’s Motion to Dismiss Securities Class Action
The lead plaintiff in a securities class action against Exxon Mobil Corporation (Exxon) filed its response in opposition to Exxon’s motion to dismiss. The lead plaintiff contended that Exxon had admitted to internal use for planning purposes of “a separate, undisclosed set of proxy costs” of carbon that was significantly lower than the proxy costs described in defendants’ representations to investors. The lead plaintiff argued that Exxon’s justification of the internal use of the separate set of costs raised factual questions that could not be resolved on a motion to dismiss. The lead plaintiff also asserted that Exxon’s explanations were “plainly inconsistent” with its representations. The lead plaintiff contended that the complaint alleged a strong inference of scienter “by alleging numerous particularized facts establishing that each of the defendants ‘knowingly or recklessly made statements to the market while aware of facts that, if not disclosed, would render those statements misleading,’” and that the complaint sufficiently alleged loss causation by alleging partial disclosures that revealed fraudulent conduct and the value of Exxon’s reserves and that caused significant declines in Exxon’s stock price. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111 (N.D. Tex. Nov. 21, 2017).
WildEarth Guardians Filed Lawsuit to Compel Department of Interior to Produce Records About Secretarial Order on Onshore Mineral Leasing
WildEarth Guardians filed a lawsuit under the Freedom of Information Act (FOIA) seeking to compel production by the Department of the Interior of records related to Secretarial Order 3354, “Supporting and Improving the Federal Onshore Oil and Gas Leasing and Federal Solid Mineral Leasing Program.” WildEarth Guardians alleged that the order “stands to undermine protection of the climate, human and environmental health, fish and wildlife, public lands, and clean energy development.” WildEarth Guardians submitted FOIA requests to the Department of Interior in July and August 2017 seeking records related to the order. WildEarth Guardians v. U.S. Department of the Interior Office of the Secretary, No. 1:17-cv-02512 (D.D.C. Nov. 20, 2017).
Former Department of Interior Employee Filed FOIA Lawsuit Seeking Records on Department’s Reorganization
A former employee of the U.S. Department of the Interior (DOI) filed a FOIA lawsuit against DOI. The former employee alleged that as part of his duties at DOI he formerly had “addressed the danger posed by melting permafrost and other climate change impacts to Alaska Native communities such as Kivalina, Shishmaref, and Shaktoolik” and “raised the threats to these communities and the opportunities for developing resilience plans publicly – at the United Nations, for example – as well as inside the federal government.” The employee alleged that in June 2017 he was reassigned to a DOI office responsible for collection and accounting for and verifying natural resources revenue, a position for which he did not have experience or education. The plaintiff filed a whistleblower complaint alleging that the reassignment was in retaliation for raising concerns about the Alaska Native communities. In two FOIA requests in September and October 2017, the plaintiff sought 39 categories of records relating to reorganization of DOI staff in the Trump administration and to his employment. The plaintiff alleged that DOI had not produced any records or made a determination on his requests. Clement v. U.S. Department of Interior, No. 1:17-cv-02451 (D.D.C., filed Nov. 14, 2017).
Competitive Enterprise Institute Sought State Department Correspondence About “Legal Form” of Paris Agreement
Competitive Enterprise Institute (CEI) filed a FOIA lawsuit against the U.S. Department of State asking the federal district court for the District of Columbia to order the State Department to produce records requested by CEI related to negotiation of the Paris Agreement. CEI sought correspondence to or from two State Department employees: a diplomat who participated in negotiation of the Paris Agreement and another State Department employee who served as Capitol Hill liaison. In a press release, CEI said the individuals were members of the State Department when a decision was made to avoid characterizing the Paris Agreement as a treaty and that the Obama administration had “cut the Senate out of the treaty process” to join the Paris Agreement. CEI alleged that the Paris Agreement and its “legal form” were “the subject of great public and media interest.”Competitive Enterprise Institute v. U.S. Department of State, No. 1:17-cv-02438 (D.D.C., filed Nov. 13, 2017).
Lawsuit Filed to Challenge Highway Widening Project in California State Park
Four individuals and four environmental groups filed a lawsuit in the federal district court for the Northern District of California challenging a highway widening project in Richardson Grove State Park, which the plaintiffs said “provides the gateway to majestic old-growth redwoods unique to California’s northern coast.” The plaintiffs’ claims included that the California Department of Transportation and its director failed to evaluate the project’s impacts under the National Environmental Policy Act, including effects on greenhouse gas emissions. Bair v. California Department of Transportation, No. 1:17-cv-06419 (N.D. Cal., filed Nov. 2, 2017).
Texas County Filed Lawsuit Against Chemical Manufacturer That Owned Facility Where Fires Burned After Harvey
Harris County, Texas, filed a petition in state court against Arkema, Inc. alleging, among other things, that a chemical manufacturing facility owned and operated by Arkema did not have required permits under the County’s Floodplain Regulations for one or more structures that sit beneath base flood elevation. As a result of Hurricane Harvey, the facility flooded, causing its primary and backup power to go offline. The County alleged that without refrigeration, the temperatures of certain organic peroxides manufactured at the facility increased to their “self-accelerating decomposition temperatures,” the point at which the chemicals begin a “chemical decomposition process that leads to rapid burning,” leading to fires and unauthorized air emissions. The flooding also resulted in industrial wastewater overflowing wastewater tanks and their containment dikes. The County asserted that Arkema had violated the Texas Clean Air Act and the Texas Water Code. The County sought civil penalties, response costs, and injunctive relief, including ordering an independent third-party audit of the facility’s disaster preparedness and implementation of the auditor’s recommendations and ordering Arkema to obtain all required permits under the Floodplain Regulations. Harris County v. Arkema, Inc., No. 2017-76961 (Tex. Dist. Ct., filed Nov. 16, 2017).
Community Group Filed CEQA Challenge to Highway Interchange Project in San Diego
A community group filed a lawsuit in California Superior Court seeking to set aside a notice of exemption issued by the California Department of Transportation (Caltrans) for a highway interchange project in San Diego. The group said Caltrans had improperly concluded that the project was exempt from California Environmental Quality Act review without notice after members of the group had been “actively engaged” in commenting on the draft EIR for over five years. The group also charged that the EIR was inadequate. The group asserted a number of shortcomings in the EIR, including that it erroneously concluded that the project’s contribution to climate change was too speculative and that it failed to quantify or analyze construction-related greenhouse gas emissions. Citizens for a Responsible Caltrans Decision v. California Department of Transportation, No. 37-2017-00041547-CU-TT- CTL (Cal. Super. Ct., filed Nov. 1, 2017).
EPA Proposed to Repeal Emission Standards for “Glider” Vehicles, Engines, and Kits
On November 16, 2017, EPA published a proposal to repeal greenhouse gas emissions standards and other requirements for heavy-duty glider vehicles, glider engines, and glider kits. EPA promulgated the standards, which apply to medium- and heavy-duty engines and vehicles, in October 2016; in July 2017, EPA received a petition for reconsideration of the standards’ application to gliders, which EPA describes as a “truck that utilizes a previously owned powertrain (including the engine, the transmission, and usually the rear axle) but which has new body parts.” EPA proposed a new interpretation of the Clean Air Act pursuant to which EPA would lack authority to issue the standards because glider vehicles would not constitute “new motor vehicles,” glider engines would not constitute “new motor vehicle engines,” and glider kits would not be treated as “incomplete” new motor vehicles. Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits, 82 Fed. Reg. 53442 (Nov. 16, 2017).
Rehearing Sought of FERC Approval of Atlantic Coast Natural Gas Pipeline
Environmental and community groups filed a request for rehearing and rescission of FERC’s authorization for the Atlantic Coast Pipeline, a natural gas pipeline running through West Virginia, Virginia, and North Carolina. The environmental groups also asked for a stay of the project. Among the errors asserted by the environmental groups were a failure to adequately assess the project’s reasonably foreseeable greenhouse gas emissions and climate change impacts and a failure to adequately consider all reasonable direct and indirect impacts and cumulative impacts, including the upstream and downstream impacts associated with gas development and compressor stations. In re Atlantic Coast Pipeline, LLC, Nos. CP15-554-000 et al. (FERC Nov. 13, 2017).
Youth Petitioners Asked North Carolina Agencies to Reduce State’s Carbon Emissions to Zero by 2050
The Duke Environmental Law & Policy Clinic submitted a rulemaking petition to the North Carolina Department of Environmental Quality and the North Carolina Environmental Management Commission (EMC) on behalf of three youth petitioners and present and future generations requesting that the agencies require that carbon dioxide emissions within the boundaries of the state be reduced to zero by 2050. The petition asserted that such action was required to meet the EMC’s public trust obligations “to protect human health, prevent injury to animal and plant life, and ensure that the State’s natural resources will be protected and conserved for future generations.” Petition for Rulemaking to Limit North Carolina’s Carbon Dioxide Emissions to Protect a Stable Climate System and Preserve the Natural Resources of North Carolina (Nov. 14, 2017).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
German Appellate Court Allowed Peruvian Farmer’s Claims to Proceed Against German Electricity Producer
On November 30, 2017, a German appeals court recognized as well-pled and admissible the complaint filed by a Peruvian farmer against RWE, Germany’s largest electricity producer, seeking damages resulting from the melting of mountain glaciers near the farmer’s town. The case will move forward into the evidentiary phase to determine whether the farmer’s home is (a) threatened by flooding or mudslide as a result of the recent increase in the volume of the glacial lake located nearby, and (b) how the greenhouse gas emissions contribute to that risk. The court will review expert opinion on RWE’s CO2 emissions, the contribution of those emissions to climate change, the resulting impact on the Palcaraju Glacier, and RWE’s contributory share of responsibility for causing the preceding effects. Lliuya v. RWE AG (Nov. 30, 2017).
Ireland High Court Denied Relief in Challenge to Dublin Airport Runway But Recognized “Personal Constitutional Right to an Environment”
Friends of the Irish Environment challenged the Fingal County Council’s decision to issue a five-year extension to the Dublin Airport Authority for their planning permission to construct a new runway. The court declined to grant any of the relief sought by plaintiffs because they failed to assert a viable claim for standing. However, the High Court issued a judgment recognizing “a personal constitutional right to an environment” under the Irish Constitution. Despite finding a lack of standing, the High Court issued a comprehensive review of the merits in anticipation of a future appeal.
The High Court declared that, “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Art. 40.3.1° of the Constitution.” The Court elaborated that this right was not so “Utopian” as to prevent enforcement, but would rather become enforceable once made concrete through the definition and demarcation of specific duties and obligations. The High Court explained that recognizing this previously unenumerated constitutional right was a first step in this process to define and demarcate a right to an environment.
However, the High Court did not find that the Fingal County Council violated this newly recognized right to an environment by extending the planning permission for the runway. The Court explained, “. . . even though the court accepts that members of the [Friends of Irish Environment] enjoy the contended-for constitutional right, and that the [Friends of the Irish Environment] itself has standing as a body corporate, and has a sufficient basis to contend for recognition of that existing but unenumerated constitutional right, the [Friends of the Irish Environment] nevertheless did not have a right to participate in the extension decision under [Section 42 of the Planning and Development Act 2000] (there is no such right of participation) and it has failed to establish that there is, by reference to that section and on the facts presenting, any disproportionate interference with the personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large. In truth, the court sees in [Section 42] nothing more than a proper and proportionate legislative interference with the said, ever-present and now expressly recognised personal constitutional right.”
Further, the High Court ruled that Friends of the Irish Environment did not fulfill standing requirements under section 42 of the Planning and Development Act 2000, Article 11 of the Consolidated EIA Directive, or the “Aarhus Convention” (i.e. the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters adopted on 25th June 1998 in the Danish city of Aarhus). The High Court found that neither the Planning and Development Act 2000 nor the Consolidated EIA contained requirements for further public participation in granting an extension of a planning permission. Claims concerning the original decision to grant a planning permission in 2007 were deemed impermissible collateral attacks.
The Court did not find that the Section 15 of the Climate Action and Low Carbon Development Act 2015 changed the substance of Section 42 of the Planning and Development Act in a way relevant to the claims of this case. Section 15 creates an obligation that “A relevant body shall, in the performance of its functions, have regard to . . . the furtherance of the national transition objective, and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.” The High Court said that the Fingal Council would only need to provide reasons if it elected to entirely depart from the objectives of Section 15. The High Court did not believe this this sort of departure was present in the case at hand. Friends of the Irish Environment CLG v. Fingal County Council, 2017 No.344 JR (Ireland High Court Nov. 22, 2017).