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 # 105.
FEATURED CASE
In Split Opinion, Hawai‘i Supreme Court Ruled That Due Process Hearing Was Required to Protect Right to Clean and Healthful Environment by Considering Greenhouse Gas Impacts of Utility’s Power Purchase Agreement
In a case concerning whether Sierra Club had a right to participate in proceedings before the Hawai‘i Public Utility Commission (Commission) concerning an electric utility company’s application for approval of a power purchase agreement between the utility and an electricity producer, the Hawai‘i Supreme Court ruled that Sierra Club and its members had asserted a property interest in a clean and healthful environment that was protectable under the Hawai‘i Constitution’s due process clause. The electricity producer had produced electricity at a bagasse-fired power plant that also burned other fuels including coal and petroleum. (Bagasse is a residue produced from sugar cane processing.) The power purchase agreement sought to restate, amend, and extend an existing agreement; the Commission approved it in 2015 after denying Sierra Club’s requests to intervene or participate in the proceedings. Although the plant closed after the Commission approved the agreement, the Supreme Court said Sierra Club’s claim fell within the public interest exception to the mootness doctrine because “[r]esolution of the issue may affect similarly situated parties who in the future seek to assert their right to a clean and healthful environment in proceedings before agencies and other governmental bodies.” On the merits, the Supreme Court concluded that the Hawai‘i Constitution established a substantive right to a clean and healthful environment and that the scope of that interest was defined by “existing law relating to environmental quality,” which the court said included statutory provisions requiring the Commission to “consider the need to reduce the State’s reliance on fossil fuels through energy efficiency and increased renewable energy generation” and to “explicitly consider” the effects the State’s reliance on fossil fuels would have on greenhouse gas emissions. The court concluded that these laws defined the right to a clean and healthful environment by requiring “that express consideration be given to reduction of greenhouse gas emissions in the decision-making of the Commission.” The court concluded that the utility’s application raised issues that directly affected Sierra Club’s members’ right to a clean and healthful environment and that the Commission’s approval of the power purchase agreement adversely affected the members’ interests. A due process hearing therefore was required to consider the impacts of approving the agreement on the members’ right to a clean and healthful environment, “including the release of harmful greenhouse gases” by the power plant. Two justices dissented, with the dissenting opinion stating that the majority’s decision “expands the limits of due process in ways that could have unintended consequences.” In re Maui Electric Co., No. SCWC-15-0000640 (Haw. Dec. 14, 2017).
DECISIONS AND SETTLEMENTS
Ninth Circuit Issued Mixed Ruling on Assessment of Fishery Impacts on Climate Change-Threatened Sea Turtles
The Ninth Circuit Court of Appeals ruled that the National Marine Fisheries Service (NMFS) had acted arbitrarily and capriciously when it determined that a swordfish fishery’s expansion would not jeopardize the continued existence of the endangered loggerhead sea turtle despite scientific data suggesting that loggerhead population would significantly decline due to climate change and also to rising levels of marine debris. In doing so, the Ninth Circuit partially reversed a Hawaii district court’s granting of summary judgment upholding the NMFS’s determinations under the Endangered Species Act in connection with the fishery expansion. (The court also ruled that the NMFS’s grant of a permit under the Migratory Bird Treaty Act was arbitrary and capricious, but this aspect of the court’s ruling did not address climate change.) The Ninth Circuit said the NMFS failed to articulate a “rational connection” between the climate-based population viability model and its no-jeopardy conclusion; the model showed the loggerhead facing high extinction risk even without the proposed action and additional loss of 4 to 11% with the proposed action. The Ninth Circuit found that the NMFS “improperly minimized” the proposed action’s risks to loggerhead survival “by only comparing the effects of the fishery against the baseline conditions that have already contributed to the turtles’ decline.” The Ninth Circuit upheld, however, the NMFS’s no-jeopardy conclusion for endangered leatherback sea turtles. The court was not persuaded by the plaintiffs’ argument that the NMFS erred by limiting the “temporal scale” of its analysis to 25 years despite the NMFS’s determination that rising temperatures would have impacts on sea turtles over the next century. The Ninth Circuit said the NMFS was entitled to rely on the climate-based population assessment model even though it could only predict changes for 25 years. The Ninth Circuit also was not persuaded that the NMFS had arbitrarily dismissed climate change impacts on sea turtles as uncertain. The court said that it could not conclude “from the NMFS’s lack of precision that it failed to adequately consider the effects of climate change” and that the plaintiffs had failed to point to less speculative evidence that the agency had failed to consider. One judge dissented from the court’s rejection of the no-jeopardy determination for loggerhead sea turtles, stating that “[w]hile the record data shows that the loggerhead is in decline, NMFS reasonably concluded that the fishery expansion would not appreciably reduce the likelihood of the loggerhead’s survival and recovery.” Turtle Island Restoration Network v. U.S. Department of Commerce, No. 13-17123 (9th Cir. Dec. 27, 2017).
Reversing District Court, Tenth Circuit Said Conservation Groups Could Intervene in Lawsuit Seeking Quarterly Mineral Lease Sales
The Tenth Circuit Court of Appeals reversed a district court’s denial of conservation groups’ motion to intervene in an oil and gas trade association’s lawsuit that sought to compel the U.S. Bureau of Land Management (BLM) to hold quarterly lease sales for federal minerals. The Tenth Circuit concluded that the federal district court for the District of New Mexico had erred in denying the groups’ motion to intervene as of right. Like the district court, the Tenth Circuit found that the groups’ motion to intervene had been timely. The Tenth Circuit also agreed with the district court that the groups had an interest in protecting public lands from the impacts of oil and gas development. The Tenth Circuit concluded, however, that the conservation groups had an additional interest in preserving reforms they had worked implement, including a “Leasing Reform Policy” (Policy). While the district court had concluded that the lawsuit did not seek to set aside or modify the Policy, the Tenth Circuit found that “the district court overlooked two key points”: (1) that increasing the frequency of lease sales could require BLM to abandon existing policies and (2) that the trade association asked the court to require BLM to revise or rescind the Policy if the court found that the Policy violated the Mineral Leasing Act. The Tenth Circuit therefore found that the conservation groups’ interests might be impaired or impeded by the pending case and further concluded that BLM could not adequately represent the groups’ interests. In finding that the federal defendants could not adequately represent the groups’ interests, the court cited executive orders signed by President Trump that directed review of agency regulations that potentially burden development of oil, gas, and other domestic energy resources. Western Energy Alliance v. Zinke, No. 17-2005 (10th Cir. Dec. 18, 2017).
D.C. Circuit Dismissed Challenges to Ohio-to-Michigan Pipeline Without Prejudice
The D.C. Circuit Court of Appeals dismissed without prejudice cases challenging the Federal Energy Regulatory Commission’s (FERC’s) approvals for the NEXUS pipeline between Ohio and Michigan. In doing so, the court granted Sierra Club’s motion for voluntary dismissal, which Sierra Club made after learning that the pipeline’s developer had purchased the property of one of the declarants supporting its emergency motion for a stay. FERC and pipeline developer had argued that the dismissal should be with prejudice. The emergency motion for stay, a motion to dismiss for lack of jurisdiction, and an emergency petition for writ of mandamus were dismissed as moot. Sierra Club v. Federal Energy Regulatory Commission, No. 17-1236 (D.C. Cir. Dec. 13, 2017).
Maine Federal Court Rejected Most Claims in Pipeline Operator’s Challenge to City’s Ban on Loading Crude Oil on Tankers; Dormant Commerce Claim Can Proceed
A federal district court in Maine ruled for the City of South Portland on all but one claim brought by a pipeline operator to challenge the City’s “Clear Skies” ordinance, which prohibits loading crude oil on tankers in South Portland harbor. The pipeline operator currently pumps oil from South Portland to Montreal to bring the oil to refineries but asserted that it had plans to reverse the flow of oil. The pipeline operator said the City’s prohibition on loading crude oil on tankers would prevent it from implementing those plans. While the Clear Skies ordinance’s legislative findings focused on local air quality and land use impacts, City Council members also cited the need to take local action to address climate change and the ordinance’s potential effects on “the health and safety of other global residents.” The court ruled that the prohibition on loading crude oil was not preempted by the Pipeline Safety Act (because the prohibition was not a safety standard), by the Port and Waterways Safety Act, or by maritime law. The court also found that the prohibition did not impermissibly intrude on the federal government’s federal affairs power. In addition, the court rejected a class-of-one equal protection claim and a claim that the ordinance violated the Due Process clause based on the void-for-vagueness doctrine. The court also concluded that the City could rationally have concluded that the ordinance was consistent with its comprehensive plan and ruled that Maine’s Oil Discharge Prevention Law did not preempt the ordinance. The court concluded, however, that genuine disputes of material fact regarding the ordinance’s purpose and practical effects on interstate and foreign commerce prevented summary judgment on the plaintiffs’ dormant Commerce Clause claim. Portland Pipe Line Corp. v. City of South Portland, 2:15-cv-00054 (D. Me. Dec. 29, 2017).
Second Circuit Denied Stay Requested by New York Department of Environmental Conservation to Stop Pipeline Construction; District Court Enjoined Agency from Enforcing State Permitting Requirements to Stop Construction
The Second Circuit Court of Appeals denied the New York State Department of Environmental Conservation’s (NYSDEC’s) emergency motion for a stay of all construction activities for the Valley Lateral 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. NYSDEC is challenging FERC’s determination that NYSDEC waived its authority to consider an application for a water quality certification for the project. A hearing on the merits was scheduled for January 24, 2018. New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission, No. 17-3770, -3503 (2d Cir. Dec. 7, 2017).
Six days after the Second Circuit order denying the stay, the federal district court for the Northern District of New York granted a pipeline company’s request for a preliminary injunction barring NYSDEC from enforcing stream disturbance and freshwater wetlands permitting requirements to prevent the company from beginning construction on a pipeline. NYSDEC had denied the company’s application for the permits on the ground that FERC’s review of the pipeline project had not been sufficient because FERC did not adequately consider greenhouse gas impacts as required by a recent D.C. Circuit decision. The court denied NYSDEC’s motion to dismiss; it held that the Second Circuit did not have exclusive jurisdiction of the pipeline company’s claims and that the company had standing to challenge the permits that NYSDEC denied. In granting the preliminary injunction, the court found that the company had demonstrated irreparable harm and a strong likelihood of success on the merits of the argument that the federal Natural Gas Act preempted state permitting requirements. The court also found that the defendants had not shown that environmental damage caused by the “just 7.8 miles long” pipeline would outweigh the economic harm of a construction delay and that the public interest would not be disserved by a preliminary injunction. Millennium Pipeline Co. v. Seggos, No. 1:17-cv-01197 (N.D.N.Y. Dec. 13, 2017).
Washington State Court Invalidated at Least Some Aspects of State’s Regulations of Greenhouse Gases
A Washington state court ruled from the bench that the Washington Department of Ecology lacked statutory authority to promulgate a component of its Clean Air Rule that regulated petroleum and natural gas suppliers. The Clean Air Rule capped and reduced greenhouse gas emissions from significant in-state stationary sources; petroleum product producers, importers, and distributors; and natural gas distributors operating within Washington. It was promulgated as a step towards achieving statutory targets for greenhouse gas emissions reductions. The court said it would take additional briefs on whether to sever the Clean Air Rule’s provisions for stationary sources or to invalidate the entire rule. Association of Washington Business v. Washington Department of Ecology, No. 16-2-03923-34 (Wash. Super. Ct. Dec. 15, 2017).
SEC Said Apple Could Omit Climate Change-Related Shareholder Proposals from Proxy Materials
The U.S. Securities and Exchange Commission (SEC) issued letters to Apple, Inc. indicating that the SEC’s Office of Chief Counsel would not recommend enforcement action if Apple omitted from its proxy materials certain shareholder proposals asking Apple to take actions to assess its greenhouse gas impacts. In one letter, the SEC addressed a shareholder proposal asking Apple to produce a report assessing the climate benefits and feasibility of adopting requirements that all retail locations implement a policy to keep store doors closed when climate control, especially air-conditioning, was in use. The SEC said there “appear[ed] to be some basis” for Apple’s view that it could exclude the proposal because it had already substantially implemented the proposal. The SEC did not find it necessary to address Apple’s second basis for omitting the proposal—that the proposal concerned Apple’s ordinary business operations. In another letter, the SEC said it appeared Apple had a basis for excluding a request that it prepare a report evaluating the potential for Apple to achieve net-zero emissions of greenhouse gases from operations directly owned by the company and major suppliers. The SEC agreed that the proposal appeared to relate to ordinary business operations because it sought “to micromanage the company by probing too deeply into matters of a complex nature upon which shareholders, as a group, would not be in a position to make an informed judgment.” SEC Response to Rule 14a-8 No-Action Request from Apple, Inc. Regarding Shareholder Proposal of Sustainvest Asset Management, LLC (Dec. 12, 2017); SEC Response to Rule 14a-8 No-Action Request from Apple, Inc. Regarding Shareholder Proposal of Christine Jantz (Dec. 21, 2017).
FERC Denied Rehearing of Approval of Atlantic Sunrise Pipeline
The Federal Energy Regulatory Commission (FERC) denied requests for rehearing of its order authorizing construction and operation of the Atlantic Sunrise Project, which includes approximately 200 miles of interstate natural gas pipeline and related facilities in Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina. Environmental and citizen groups had asserted that FERC failed to take greenhouse gas impacts into account in several ways; FERC rejected each of these arguments. FERC said the National Environmental Policy Act (NEPA) did not require it to consider indirect effects of induced gas production, including greenhouse gas emissions, because there was not a causal relationship between FERC’s action and additional production and, in any event, the scope of impacts from any such induced production was not reasonably foreseeable. FERC also found that it adequately considered the project’s downstream impacts on greenhouse gas emissions and climate change, noting that it had estimated the greenhouse gas emissions associated with combustion of the gas to be transported by the project as required by the D.C. Circuit in its decision regarding the Southeast Market Pipelines Project. FERC said it could not quantify possible effects the project would have on renewable energy production. In re Transcontinental Gas Pipe Line Co., No. CP15-138-001, -004 (FERC Dec. 6, 2017).
NEW CASES, MOTIONS, AND NOTICES
Lawsuits Filed in California Federal Court to Challenge One-Year Delay of BLM Waste Prevention Rule Requirements
On December 19, 2017, 16 conservation and tribal citizen organizations filed a lawsuit in the federal district court for the Northern District of California challenging BLM’s final rule postponing most compliance dates in BLM’s Waste Prevention Rule for one year. The Waste Prevention Rule, which was published in the Federal Register on November 18, 2016, imposed requirements on oil and gas companies to reduce the venting, flaring, and leaking of natural gas, including the greenhouse gas methane, during production activities on onshore federal and Indian leases. The organizations alleged that postponement of the compliance dates violated the Mineral Leasing Act (MLA), NEPA, the Federal Land Policy and Management Act (FLPMA), and the Administrative Procedure Act (APA). On the same day and in the same court, the attorneys general of California and New Mexico filed a similar lawsuit challenging the postponement of the compliance dates. The states asserted that the one-year suspension of the Waste Prevention Rule’s compliance dates “lacks any reasoned analysis, contravenes BLM’s statutory mandates, and ignores significant environmental consequences.” Like the conservation and tribal citizen groups, the states alleged violations of the MLA, NEPA, FLPMA, and APA; in addition, the states alleged that the delay rule violated the Federal Oil and Gas Royalty Management Act of 1982. Sierra Club v. Zinke, No. 3:17-cv-07187 (N.D. Cal., filed Dec. 19, 2017); California v. U.S. Bureau of Land Management, No. 3:17-cv-07186 (N.D. Cal., filed Dec. 19, 2017).
BLM Appealed Ruling Requiring APA Compliance for Postponement of Compliance Dates in Waste Prevention Rule
In a related case, BLM and other federal defendants filed a notice of appeal of the federal court decision ruling that they could not postpone compliance with rule’s requirements without complying with the Administrative Procedure Act. In October 2017, the federal district court for the Northern District of California vacated a BLM rule that postponed the Waste Prevention Rule’s compliance dates for one year. California v. U.S. Bureau of Land Management, No. 3:17-cv-03804 (N.D. Cal. Dec. 4, 2017).
Sierra Club Sought to Compel Issuance of Long-Overdue Efficiency Standards for Manufactured Housing
Sierra Club filed a lawsuit in the federal district court for the District of Columbia seeking to compel Secretary of Energy Rick Perry to establish energy efficiency standards for manufactured housing. Sierra Club alleged that the Secretary of Energy had failed to meet the December 19, 2011 deadline for prescribing such standards set by the Energy Independence and Security Act of 2007 (EISA). Sierra Club said the Secretary had violated EISA and that the failure to promulgate standards constituted an agency action unlawfully withheld under the Administrative Procedure Act. Sierra Club v. Perry, No. 1:17-cv-02700 (D.D.C., filed Dec. 18, 2017).
Conservation Groups Filed New Lawsuit Challenging Federal Approvals of Coal Mine’s Expansion
On December 15, 2017, five conservation groups filed a complaint in the federal district court for the District of Colorado alleging that the U.S. Forest Service and BLM violated NEPA when they issued approvals authorizing expansion of an underground coal mine in the Sunset Roadless Area in Colorado. In 2014, a Colorado federal court vacated earlier approvals of the mine’s expansion on the ground that the agencies had failed to take a hard look at greenhouse gas impacts. In the December 2017 complaint, the conservation groups said that, “despite having the benefit of a second opportunity to fully account for the mine expansions’ harms, the agencies have, among other errors, again underestimated or obscured the climate pollution impacts of the expansion while improperly boosting the purported economic benefits.” The groups alleged the following NEPA violations related to the agencies’ assessment of greenhouse gas impacts: failure to acknowledge and account for the environmental impacts of the increased demand for coal that the mine’s expansion would induce; failure to disclose climate impacts using scientifically valid and available tools such as the social cost of carbon or to provide an explanation for why such an approach was not appropriate (as required by the 2014 decision); and failure to consider a reasonable alternative aimed at mitigating methane pollution. High Country Conservation Advocates v. U.S. Forest Service, No. 1:17-cv-03025 (D. Colo., filed Dec. 15, 2017).
City and County of Santa Cruz Filed Lawsuits Against Fossil Fuel Companies Seeking Damages for Climate Change-Related Injuries
The City and County of Santa Cruz each filed a lawsuit in California Superior Court against 29 fossil fuel companies, alleging that greenhouse gas pollution from production and use of the defendants’ products had played “a direct and substantial role in the unprecedented rise in emissions of greenhouse gas pollution and increased atmospheric CO2 concentrations since the mid-20th century” and that the companies’ production, promotion, and marketing of their products, along with their concealment of the products’ known hazards and “championing of anti-regulation and anti-science campaigns,” had caused injuries to the City and County. The City and County alleged that the defendants were directly responsible for 17.5% of total global emissions of carbon dioxide between 1965 and 2015. The climate change-related injuries alleged by the City and County included drought, extreme precipitation and landslides, heat waves, wild fires, and sea level rise. The causes of action asserted in the complaint were public nuisance, strict liability based on failure to warn and design defect, private nuisance, negligence, and trespass. The City and County sought compensatory damages, equitable relief including abatement of the nuisance, punitive damages, and disgorgement of profits, as well as attorneys’ fees and other costs. City of Santa Cruz v. Chevron Corp., No. 17CV03243 (Cal. Super. Ct., filed Dec. 20, 2017); County of Santa Cruz v. Chevron Corp., No. 17CV03242 (Cal. Super. Ct., filed Dec. 20, 2017).
Coal Terminal Developer Challenged County’s Denial of Shoreline Permits
The developer of a proposed coal terminal in Washington State filed a petition for review before the State Shorelines Hearings Board to appeal the decision of a Cowlitz County Hearing Examiner denying a shoreline permit application for the terminal. The hearing examiner had found, among other things, that the developer had failed to reasonably mitigate ten unavoidable, significant impacts, including impacts from greenhouse gas emissions. In re Millennium Bulk Terminals – Longview, LLC Shoreline Permit Applications, No. S17-17c (Wash. SHB Dec. 4, 2017).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
U.K. Non-Profit Sued Government for Alleged Violation of the 2008 Climate Act
Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, filed a climate change lawsuit against the Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State), an official within the Government of the United Kingdom. Plan B Earth was joined in the lawsuit by 11 citizen claimants ranging in age from 9 to 79 who alleged they were impacted by climate change in a variety of ways. The claimants alleged that the Secretary of State violated the Climate Change Act 2008 (the 2008 Act) and other law by failing to revise a 2050 carbon reduction target in light of new international law and scientific developments.
On December 8, 2017, the claimants filed a claim form and a document listing their grounds for judicial review at the High Court of Justice Administrative Court. They noted that the 2008 Act set a carbon emissions reduction target for the year 2050 that is at least 80% lower than the aggregate total of the UK’s greenhouse gas emissions in 1990 (the 2050 target). This 2050 target was consistent with limiting average warming to 2°C above pre-industrial levels. The claimants argued that the Secretary of State should make the 2050 target more ambitious to reflect scientific developments since 2008 and the Paris Agreement’s intention to limit average warming to 1.5°C. Under Section 2 of the 2008 Act, the Secretary of State has the authority to revise the target in light of scientific developments and international law.
Claimants presented five grounds for seeking judicial review of the Secretary of State’s failure to revise the 2050 target: (1) it is ultra vires, because it frustrates the legislative purpose of the 2008 Act; (2) it is based on an error of law regarding the objective of the Paris Agreement; (3) it is irrational, because it fails to take into account and / or inappropriately weighs considerations including the risks of global climate change and predictions of future technical innovation; (4) it violates the Human Rights Act 1998; and (5) it breaches the public sector equality duty set out in Section 149 of the Equality Act 2010.
Claimants seek declaratory relief that the Secretary of State acted unlawfully in violation of his responsibilities under the 2008 Act and a “mandatory order that the Secretary of State revise the 2050 target in accordance with the purpose of the 2008 Act and the UK’s international law obligations, ensuring, at a minimum, that the 2050 target commits the UK to an equitable contribution the Paris Agreement objective and that it conforms to the precautionary principle.” They also seek what other relief the court deems appropriate and costs. Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy (Q.B. Admin. Ct., claim form and statement of facts and grounds filed Dec. 8, 2017).
