Each month, Arnold & Porter 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 # 106.
D.C. Circuit Denied Rehearing of Decision Vacating HFC Prohibition
The D.C. Circuit Court of Appeals denied petitions for panel rehearing and rehearing en banc of the court’s August 2017 decision vacating the U.S. Environmental Protection Agency’s (EPA’s) rule prohibiting use of hydrofluorocarbons (HFCs) to replace ozone-depleting substances under EPA’s Significant New Alternatives Policy program. HFCs are powerful greenhouse gases. Rehearing was sought by Natural Resources Defense Council and by two companies that had developed “new and better substitutes” for ozone-depleting substances. The court said that a majority of judges eligible to participate did not vote in favor of the rehearing en banc petitions and noted that Judges Millett and Katsas did not participate. The petitions for panel rehearing were denied because the current panel of two judges was equally divided. The third judge on the panel, Judge Brown, retired on August 31, 2017. She joined the entirety of the majority opinion, including the portion vacating the HFC prohibition. Mexichem Fluor, Inc. v. EPA, No. 15-1328 (D.C. Cir. Jan. 26, 2018).
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Review Listing of Bearded Seal as Threatened Species
The U.S. Supreme Court declined to review a Ninth Circuit decision upholding the listing of the Beringia distinct population segment of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act. The Ninth Circuit had reversed a district court decision vacating the listing; the Ninth Circuit found that the National Marine Fisheries Service reasonably relied on loss of sea ice caused by global climate change over the next 50 to 100 years as the basis for the listing. The parties seeking certiorari asked the Supreme Court to consider whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” Alaska v. Ross, Nos. 17-118, 17-133 (U.S. Jan. 22, 2018).
Supreme Court Declined to Consider Whether Federal Law Preempted Connecticut’s Renewable Energy Programs
The U.S. Supreme Court denied certiorari to a petitioner seeking review of the Second Circuit’s decision upholding Connecticut’s renewable energy programs. The Second Circuit rejected claims that the programs were preempted by federal law or in violation of the dormant Commerce Clause. The petition for writ of certiorari presented two questions for review, one concerning whether State directives requiring local utilities to enter into long-term electricity contracts with certain generators were field preempted by federal authority to regulate interstate wholesale sales, and the other concerning whether “a long-term interstate wholesale electricity contract that would not have been entered into but for the coercive action of the State” was conflict preempted “because it provides incentives different from the incentives provided by the [Federal Energy Regulatory Commission]-supervised energy market.” Allco Finance Ltd. v. Klee, No. 17-737 (U.S. Jan. 22, 2018).
Supreme Court Denied Certiorari in Coal Companies’ Case Seeking to Compel Clean Air Act Jobs Study
On January 8, 2018, the U.S. Supreme Court denied a petition for writ of certiorari filed by the coal company Murray Energy Corporation and related companies, in which the companies sought review of the Fourth Circuit’s dismissal of their action that sought to compel the U.S. Environmental Protection Agency (EPA) to conduct a study of the Clean Air Act’s effects on employment, particularly in the coal industry. The Fourth Circuit held that the district court lacked jurisdiction to hear the case because EPA had “considerable discretion” to decide how to manage the Clean Air Act’s statutory mandate that EPA “shall conduct continuing evaluations of potential loss or shifts of employment.” Murray Energy Corp. v. Pruitt, No. 17-478 (U.S. Jan. 8, 2018).
Environmental Groups Agreed to Voluntary Dismissal of Challenge to Stay of Landfill Emission Standards After EPA Said Stay Had No Effect
After the parties filed a stipulation of voluntary dismissal, the D.C. Circuit Court of Appeals dismissed a challenge to the U.S. Environmental Protection Agency’s (EPA’s) stay of performance standards and emission guidelines for municipal solid waste landfills. The stay was in place from May 31, 2017 to August 29, 2017, while EPA began a reconsideration process. On January 11, 2018, EPA withdrew plans for a further delay in implementation of the standards. In the stipulation of voluntary dismissal, the petitioners stated that they had decided to voluntarily dismiss the petition for review on the basis of EPA’s representations in its initial brief that the stay only affected deadlines that would have applied during the 90 days the stay was in effect, that EPA was not aware of new landfills affected by the stay, and that the stay did not affect deadlines for existing landfills or for EPA obligations. Natural Resources Defense Council v. Pruitt, No. 17-01157 (D.C. Cir. order of dismissal Feb. 1, 2018; stipulation Jan. 31, 2018; respondents’ brief Jan. 22, 2018; petitioners’ brief Nov. 20, 2017).
D.C. Circuit Denied Rehearing of Decision Vacating Gas Pipeline Approval for Failure to Adequately Consider Greenhouse Gas Emissions
The D.C. Circuit Court of Appeals denied petitions for rehearing of its decision vacating the Federal Energy Regulatory Commission’s (FERC’s) authorization of an interstate natural gas pipeline in the southeastern United States. In August 2017, the D.C. Circuit found that FERC’s analysis of the pipeline’s impacts on greenhouse gas emissions was inadequate and required FERC to prepare a new environmental impact statement. FERC and the respondent-intervenors had argued that remand without vacatur would have been the proper remedy. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Jan. 31, 2018).
D.C. Circuit Granted Sierra Club’s Motion for Voluntary Dismissal of Remaining LNG Export Challenge
The D.C. Circuit Court of Appeals granted Sierra Club’s motion for voluntary dismissal of its petition challenging the U.S. Department of Energy’s authorization for increased exports of liquefied natural gas (LNG) exports to non-free trade agreement nations from a terminal in Louisiana (the Sabine Pass terminal). The D.C. Circuit previously denied Sierra Club’s petition seeking review of a previous authorization of LNG exports from the Sabine Pass terminal. Sierra Club’s arguments in the instant case, which concerned alleged violations of the Natural Gas Act and the National Environmental Policy Act, were similar to its arguments in the earlier case. Sierra Club v. U.S. Department of Energy, No. 16-1426 (D.C. Cir. Jan. 30, 2018).
Federal Circuit Upheld Dismissal with Prejudice of Action Claiming California Cap-and-Trade Program Infringed on Patent
The Federal Circuit Court of Appeals affirmed the dismissal of an action alleging that California’s cap-and-trade program for greenhouse gas emissions infringed on a patent held by the plaintiff entitled “Pollution Credit Method Using Electronic Networks.” The plaintiff alleged that the patent describes “an electronic method and apparatus for validating individuals’ applications for pollution reduction credits, assigning a value to the activity associated with each application, and facilitating trading between individuals.” In an unpublished decision, the appellate court found that the district court had not abused its discretion by dismissing the action with prejudice after the plaintiff failed to oppose motions to dismiss filed by the appellees. Sowinski v. California Air Resources Board, No. 2017-1219 (Fed. Cir. Dec. 18, 2017).
Federal Court Ordered New Evaluation of Petition to List Yellowstone Bison Under Endangered Species Act
The federal district court for the District of Columbia directed the U.S. Fish and Wildlife Service to conduct a new 90-day finding on whether the Yellowstone bison population should be added to the list of endangered and threatened species. The petitions to list the bison population had identified multiple threats to the bison’s survival, including climate change. The court said the FWS applied an improperly heightened standard in its 90-day evaluation because it discounted a scientific study that supported the petition for listing without providing a reason for its rejection of the study. Buffalo Field Campaign v. Zinke, No. 1:16-cv-01909 (D.D.C. Jan. 31, 2018).
Colorado Federal Court Dismissed Case That Sought Recognition of Colorado River Ecosystem’s Legal Personhood and Rights
On December 4, 2017, the federal district court for the District of Colorado granted a motion by plaintiff “Colorado River Ecoystem” to dismiss with prejudice the lawsuit seeking recognition of the Colorado River Ecosystem’s status as a “person” possessing rights and a declaration that actions of the State of Colorado violated those rights. The plaintiff’s motion to dismiss stated that the complaint “represented a good faith attempt to introduce the Rights of Nature doctrine to our jurisprudence” and that counsel for the plaintiff “continues to believe that the doctrine provides American courts with a pragmatic and workable tool for addressing environmental degradation and the current issues facing the Colorado River.” Colorado River Ecosystem v. State of Colorado, No. 1:17-cv-02316 (D. Colo. plaintiffs’ motion Dec. 3, 2017; order dismissing case Dec. 4, 2017).
California Appellate Court Said CARB’s Modification of Truck and Bus Regulations Violated CEQA and California’s Administrative Procedures Act
The California Court of Appeal affirmed a trial court’s judgment that the California Air Resources Board (CARB) violated the California Environmental Quality Act (CEQA) and California’s Administrative Procedures Act (APA) when it promulgated revised truck and bus regulations that extended compliance deadlines for small fleet operators. The truck and bus regulations are intended to reduce emissions of particulate matter, nitrogen oxides, and greenhouse gases from large diesel engines. The appellate court concluded that CARB violated CEQA by approving the project before it had completed its environmental analysis and by failing to consider the petitioners’ “fair argument” that emissions would increase compared to emissions under the existing regulations and that the increases could be significant. The court also affirmed the trial court’s determination that CARB’s conduct violated the APA. The appellate court did not agree, however, with the trial court’s conclusion that CARB used an inappropriate baseline; the appellate court stated that CARB “was within its discretion to adopt a baseline calculation that measured the current environment without further reducing figures based on regulations that should have taken effect during the course of the analysis.” John R. Lawson Rock & Oil, Inc. v. State Air Resources Board, No. F074003 (Cal. Ct. App. Jan. 31, 2018).
Arizona Appellate Court Rejected Challenge to Transmission Project Intended for Renewable Energy
The Arizona Court of Appeals rejected a challenge to the Arizona Corporation Commission’s authorization of a transmission project that the developers said would provide service for growing demand for renewable energy. The challengers alleged that there was not substantial evidence that the project would ever transmit renewable energy. The Commission chose not to explicitly condition authorization of the project on compliance with renewable energy benchmarks but instead required the developer to “in good faith … use its best efforts to secure transmission service contracts for renewable energy generation.” The appellate court found that there was substantial evidence supporting the authorization—including numerous environmental studies and statements about the project’s anticipated energy sources—and that if the developer did not make good-faith efforts to secure renewable power, then there might be a future action for violation of the authorization’s conditions. Else v. Arizona Corporation Commission, No. 1 CA-CV 17-0208 (Ariz. Ct. App. Jan. 25, 2018).
California Appellate Court Upheld Environmental Impact Report’s Conclusion on Railyard’s Consistency with Greenhouse Gas Reduction Goals
The California Court of Appeal reversed a trial court’s determination that the review of greenhouse gas emissions associated with a proposed new railyard four miles from the Port of Los Angeles was deficient, but agreed that the final environmental impact report (FEIR) prepared pursuant to the California Environmental Quality Act (CEQA) had failed to adequately consider the project’s air quality impacts, particularly impacts to ambient air pollutant concentrations. The FEIR for the project had found that the project would increase fuel efficiency of regional cargo movement and decrease greenhouse emissions by reducing truck traffic in a manner consistent with state and local policies and plans for greenhouse gas emissions and climate change, even though operational emissions would eventually exceed CEQA baseline levels. The appellate court disagreed with the trial court’s conclusion that a project that increased greenhouse gas emissions could not be in harmony with a state and local plans requiring a decrease in emissions. The appellate court said that the FEIR had appropriately separated the quantitative analysis (where it identified a significant impact) from the qualitative analysis (where it found no inconsistency with state and local policies encouraging more efficient use of fossil fuels to move goods). City of Long Beach v. City of Los Angeles, No. A148993 (Cal. Ct. App. Jan. 12, 2018).
Oregon Appellate Court Said Portland Restrictions on Fossil Fuel Terminals Did Not Violate Dormant Commerce Clause
The Oregon Court of Appeals reversed the Land Use Board of Appeals’ (LUBA’s) conclusion that the City of Portland’s zoning amendments banning new and expanded fossil fuel terminals violated the dormant Commerce Clause. The court concluded that the City’s alleged discrimination against out-of-state producers and refiners of fossil fuels and favoring in-state end users of fossil fuels did not constitute discrimination under the dormant Commerce Clause because the alleged discrimination was not between “substantially similar” out-of-state and in-state entities. The court also concluded that the zoning amendments did not bar out-of-state commerce from entering or operating within the state and did not discriminate against out-of-state consumers. In addition, the court found that the amendments survived the Pike balancing test because the business trade groups had not demonstrated the claimed burdens on interstate commerce were clearly excessive in relation to the putative local benefits. The court also reversed a LUBA finding that the ordinance violated one statewide planning goal but upheld a LUBA finding that the ordinance violated a different statewide planning goal. Columbia Pacific Building Trades Council v. City of Portland, No. A165618 (Or. Ct. App. Jan. 4, 2018).
New York Court Allowed Five Petitioners to Proceed with Claims Challenging “Zero-Emissions” Subsidies for Nuclear Plants
A New York trial court granted in part and denied in part motions to dismiss a lawsuit challenging the “zero-emissions credit” (ZEC) component of the Clean Energy Standard approved by the New York State Public Service Commission in 2016. The ZEC program provides for payments to certain nuclear power generators in the state based on the social cost of carbon. The court dismissed 56 of the 61 petitioners in the lawsuit because their claims were not timely and also dismissed the remaining petitioners’ State Environmental Quality Review Act claim because they lacked standing. The court also ruled that arguments regarding the Indian Point nuclear facility’s participation in the ZEC program were not ripe because there had been no showing that Indian Point would apply to or be approved for the program. The court otherwise found that the petitioners had adequately set forth cognizable causes of action and allowed their claims to proceed. The court also allowed an amended complaint. Hudson River Sloop Clearwater, Inc. v. New York State Public Service Commission, No. 7242/2016 (N.Y. Sup. Ct. Jan. 22, 2018).
FERC Declined to Find That New York Department of Environmental Conservation Waived Authority to Act on Water Quality Certification Application for Gas Pipeline
The Federal Energy Regulatory Commission (FERC) denied a petition from the company developing the Constitution Pipeline. The petition requested that FERC find that the New York State Department of Environmental Conservation had waived its authority to act on the company’s application for a water quality certification. (The Constitution Pipeline would extend for approximately 124 miles from Pennsylvania through four counties in New York.) The company first submitted an application to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and again in 2015. NYSDEC denied the company’s application in April 2016, citing, among other things, the risk of future flooding events that could expose the pipeline and noting that flooding conditions from extreme precipitation events were projected to increase during the pipeline’s anticipated operational life due to climate change. NYSDEC also cited potential increases in water temperature related to the project’s removal of riparian vegetation and said climate change could exacerbate the temperature increases in the long term, resulting in long-term loss of trout populations. The Second Circuit Court of Appeals upheld NYSDEC’s denial in August 2017. In denying the company’s request for a waiver finding, FERC found no reason to depart from its previous determinations that the reasonable period of time for action on a water quality certification application was one year and declined to review NYSDEC’s review process for the company’s application to determine whether it had been reasonable. FERC also said the company’s voluntary withdrawal and resubmission of its application gave NYSDEC new deadlines. In re Constitution Pipeline Co., CP18-5-000 (FERC Jan. 11, 2018).
FERC Denied Rehearing on Pipeline Project, Including Arguments That Climate Change Analysis Was Inadequate
The Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing the Atlantic Bridge Project, which consists of 6.3 miles of replacement natural gas pipeline, a new compressor station, a new meter and regulating station, and additional compression at three existing compressor stations at locations in New York, Connecticut, Maine, and Massachusetts. Among the arguments rejected by FERC was that it had failed to adequately consider the greenhouse gas and climate impacts and had failed to consider whether the project would interfere with achievement of state climate change goals. FERC also said the withdrawal of another project from FERC’s pre-filing process mooted arguments that consideration of the Atlantic Bridge Project’s greenhouse gas emissions together with emissions from the other project could make the combined projects a major source of greenhouse gases pursuant to the Clean Air Act. FERC also rejected the argument that it should have undertaken a comprehensive analysis of the cumulative impacts of natural gas production. In addition, FERC said its analysis regarding the potential impacts associated with unconventional natural gas production and downstream combustion of natural gas was prepared to provide additional information to the public, not to comply with the National Environmental Policy Act (NEPA); FERC therefore rejected the argument that the uncertainty in the analysis violated NEPA. In re Algonquin Gas Transmission, LLC, Nos. CP16-9-001, CP16-9-008 (FERC Dec. 13, 2017).
NEW CASES, MOTIONS, AND NOTICES
Pipeline Company Sought Supreme Court Review of New York’s Denial of Water Quality Certification for Natural Gas Pipeline
Constitutional Pipeline Company, LLC filed a petition for a writ of certiorari in the U.S. Supreme Court seeking review of the Second Circuit’s decision upholding the New York State Department of Environmental Conservation’s (NYSDEC’s) denial of a water quality certification for an interstate natural gas pipeline. The company argued that Congress had given the Federal Energy Regulatory Commission the authority to determine the location of interstate pipelines and that NYSDEC had interfere with this authority by denying the water quality certification on the ground that the company had not provided sufficient information about alternative pipeline routes. In its letter denying the certification, NYSDEC also cited potential climate change- related impacts to water resources. The company said the case presented the question of whether the denial of the certification interfered with FERC’s exclusive jurisdiction and violated fundamental principles of federal supremacy. Constitution Pipeline Co. v. New York State Department of Environmental Conservation, No. 17-1009 (U.S., filed Jan. 16, 2018).
New Jersey Withdrew from Clean Power Plan Challenge; States, Cities, and Environmental and Public Health Groups Urged D.C. Circuit to Issue Decision on Merits
Two weeks after the inauguration of Democrat Phil Murphy as governor, New Jersey filed a motion to withdraw as a petitioner in the challenge to the Clean Power Plan. Earlier in January, the U.S. Environmental Protection Agency (EPA) filed a 30-day status report in the D.C. Circuit requesting that the court continue to hold the case in abeyance pending the conclusion of rulemaking. EPA stated that the public comment period on its proposal to repeal the Clean Power Plan had closed on January 16 and that it had issued an advance notice of proposed rulemaking soliciting information on potential replacements in December. The state and municipal respondent-intervenors and public health and environmental respondent-intervenors asked the court to reject the request for indefinite abeyance. They urged the court to issue its decision on the merits of the case or, if it decided to continue abeyance, to limit the abeyance to a 60-day period and to require EPA to provide regular status reports. West Virginia v. EPA, No. 15-1363 (D.C. Cir. N.J. EPA status report Jan. 10, 2018; motion to withdraw Jan. 30, 2018).
Alleging Lack of Market Demand and Failure to Consider Climate Impacts, Environmental Groups Sought to Stay Construction of Mountain Valley Pipeline
Environmental groups filed lawsuits in the D.C. Circuit Court of Appeals challenging the Federal Energy Regulatory Commission’s (FERC’s) order authorizing the Mountain Valley Pipeline, a 303.5-mile gas pipeline extending from West Virginia to Virginia. On January 8, 2018, one set of environmental groups filed a separate proceeding pursuant to the All Writs Act seeking a writ staying FERC’s order until FERC ruled on the merits of a pending request for rehearing. The groups said FERC had developed “a troubling pattern of preventing parties … from appealing FERC’s orders until much (if not all) of a pipeline is complete, thereby depriving petitioners of effective means of protecting their property and environmental interests and effectively depriving courts of their jurisdiction to review FERC orders.” The groups also filed motions for stays pending the D.C. Circuit’s review of FERC’s actions. The groups contended that they had demonstrated a high likelihood of success on the merits of their claims that FERC did not have sufficient evidence of market demand to support a finding of public convenience and necessity pursuant to the Natural Gas Act and had violated the National Environmental Policy Act by, among other things, failing to adequately consider the pipeline’s climate impacts. On January 26, 2018, FERC filed a motion to dismiss the petitions for lack of jurisdiction. FERC argued that the challenged order was not final and that the petitions were “incurably premature” because requests for rehearing, including requests filed by the petitioners, remained pending. Appalachian Voices v. Federal Energy Regulatory Commission, No. 17-1721 (D.C. Cir., filedDec. 22, 2017; motion for stay Jan. 8, 2018); Blue Ridge Environmental Defense League v. Federal Energy Regulatory Commission, No. 18-1002 (D.C. Cir., filed Jan. 3, 2018; motion for stay Jan. 11, 2018); In re Appalachian Voices, No. 18-1006 (D.C. Cir., filed Jan. 8, 2018).
In Federal Appeal Concerning Illinois Zero Emissions Credit Program, Parties Addressed Whether Court Should Defer to FERC, Whether Injunctive Relief Was Available
On January 3, 2018, after holding oral argument on an appeal of a district court decision upholding an Illinois law creating a Zero Emissions Credit (ZEC) program to support certain nuclear plants, the Seventh Circuit Court of Appeals directed the parties to submit supplemental memoranda addressing whether the court should defer to the Federal Energy Regulatory Commission’s (FERC’s) primary jurisdiction. The court also asked the parties to address whether Ex Parte Young, 209 U.S. 123 (1908), was available as the basis of equitable relief in the case and whether the lawsuits were prevented by the principle in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which limited antitrust suits by indirect purchasers. The plaintiffs-appellants argued that the defendants had waived the issue of primary jurisdiction, that the case was not appropriate for primary jurisdiction referral because FERC did not have special expertise in constitutional preemption issues, that referral to FERC would prejudicially delay resolution of the plaintiffs’ claims, and that the court could seek FERC’s views by requesting an amicus brief. The plaintiffs-appellants also asserted that prospective injunctive relief was available under Ex parte Young because the State’s unlawful action caused them injury. The consumer plaintiffs also argued that Illinois Brick did not prevent their action because the company from which they purchased their electricity (the direct purchaser of ZECs) was controlled by the seller of the ZECs. A supplemental filing by the amicus curiae National Association of State Utility Consumer Advocates argued that Illinois Brick did not apply to suits filed pursuant to the Federal Power Act. The State defendants-appellees argued that the plaintiffs could not seek injunctive relief under Ex parte Young, but that if the court determined the plaintiffs had a cause of action for injunctive relief, the court should defer to FERC’s primary jurisdiction. The State defendants said FERC had before it several ongoing proceedings related to the issues in this case that it should be allowed to resolve. The owner of the nuclear plants that would likely benefit from the ZECs argued that the plaintiffs lacked a cause of action under Ex parte Young, and that primary jurisdiction should not apply if the court permitted the suit. The State defendants and the plants’ owner also said Illinois Brick prevented the retail plaintiffs’ suits. Village of Old Mill Creek v. Star, Nos. 17-2433, 17-2445 (7th Cir. order Jan. 3, 2018; supplemental memoranda from Exelon, State, Electric Power Supply Association, consumer plaintiffs, and NASUCA Jan. 26 and 30, 2018).
City of Richmond Filed Lawsuit in California State Court Seeking Climate Change Damages
On January 22, 2018, the City of Richmond, California, filed a lawsuit in California Superior Court against 29 fossil fuel companies. The City seeks damages and other relief for climate change-related injuries allegedly resulting from the defendants’ “production, promotion, marketing of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-science campaigns.” The complaint alleged that the defendants were directly responsible for 17.5% of global carbon dioxide emissions between 1965 and 2015, and that during the past 50 years the defendants had taken steps to protect their own assets from climate change effects while simultaneously promoting use of their products and working to undermine support for greenhouse gas regulation. The climate change-related injuries alleged by the City included sea level rise, more frequent and more severe flooding and storms, drought, and heatwaves. The City alleged that it had already spent significant funds to study, mitigate, and adapt to the effects of climate change. The causes of action asserted by the City are public nuisance, strict liability based on both design defect and failure to warn, private nuisance, negligence, negligent failure to warn, and trespass. The City seeks 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 Richmond v. Chevron Corp., No. C18-00055 (Cal. Super. Ct., filed Jan. 22, 2018).
Fossil Fuel Companies Removed Santa Cruz Lawsuits to Federal Court
Richmond’s lawsuit is very similar to the lawsuits filed by the City and County of Santa Cruz in December 2017. The defendants in the Santa Cruz lawsuits removed those cases to federal court on January 19, 2018. The defendants in the Santa Cruz cases asserted that the plaintiffs’ claims implicated “uniquely federal interests” and were governed by federal common law. The defendants also asserted that the claims “attack federal policy decisions and threaten to upset longstanding federal-state relations, second-guess policy decisions made by Congress and the Executive Branch, and skew divisions of responsibility set forth in federal statutes and the United States Constitution” and therefore necessarily raised substantial and disputed questions of federal law. In addition, the defendants contended that the Clean Air Act completely preempted the claims and that the federal court had jurisdiction pursuant to the Outer Continental Shelf Lands Act, the federal officer removal statute, the federal enclave doctrine, and the bankruptcy removal statute. County of Santa Cruz v. Chevron Corp., No. 5:18-cv-00450 (N.D. Cal. notice of removal Jan. 19, 2018); City of Santa Cruz v. Chevron Corp., No. 5:18-cv-00458 (N.D. Cal. notice of removal Jan. 19, 2018).
New York City Sued Five Largest Fossil Fuel Companies for Climate Change Damages
New York City filed a federal lawsuit against the five largest investor-owned fossil fuel producers seeking costs the City alleges it had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City filed the lawsuit in the federal district court for the Southern District of New York. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City alleged that the five defendants were responsible “for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution” and that the defendants also were responsible “for leading the public relations strategy for the entire fossil fuel industry, downplaying the risks of climate change and promoting fossil fuel use despite the risks.” The City charged that the defendants’ actions constituted an unlawful public and private nuisance and an illegal trespass on City property. The climate change-related injuries alleged by the City included more frequent and more intense heat waves, extreme precipitation, and sea level rise. City of New York v. BP p.l.c., No. 1:18-cv-00182 (S.D.N.Y., filed Jan. 9, 2018).
Chevron Filed Third-Party Complaint Against Statoil in San Mateo and Imperial Beach Climate Change Lawsuits; Federal Court to Hear Arguments on February 15 on Whether to Remand
On December 15, 2017, the Chevron defendants in the climate change lawsuits brought by the County of San Mateo and the City of Imperial Beach filed a third-party claim for indemnity and contribution against Statoil ASA (Statoil), an energy company for which the majority stakeholder is the Norwegian State. Statoil was originally a defendant in the cases, but the plaintiffs dismissed the complaint as to Statoil without prejudice in July 2017. The Chevron defendants asserted that City and County’s underlying claims against them were without merit but that if the claims were found to have merit, the plaintiffs’ allegations “would implicate Statoil as a party responsible for a portion of the injuries and damages Plaintiffs claim on the same basis as they would implicate the Chevron Parties and the other named Defendants.” On December 22, 2017, the defendants filed papers opposing the plaintiffs’ motion to remand the actions to California state court. Their opposition papers argued that the plaintiffs’ claims could only arise under federal common law, that they raised substantial and disputed federal issues, that they were completely preempted by federal law, and that the claims were based on the defendants’ actions on federal lands and at the direction of the federal government or were removal under the bankruptcy removal statute. The defendants also made an alternative argument that even if plaintiffs were correct that state law applied to global climate change “of its own force,” the complaints still presented removable federal questions because federal law determined which state law should apply and when state law should apply. A hearing was scheduled for February 15, 2018 on the remand motion. County of San Mateo v. Chevron Corp., No. 17-cv-4929 (N.D. Cal. third-party complaint Dec. 15, 2017; joint opposition and supplemental opposition to remand Dec. 22, 2017).
Federal Judge to Hear Arguments on Whether Oakland and San Francisco Climate Cases Belong in Federal Court; Chevron Filed Third-Party Complaint Against Statoil
The federal district court for the Northern District of California is scheduled to hold a hearing on February 8, 2018 to hear arguments on the motion by the Oakland and San Francisco city attorneys to remand their climate change public nuisance actions against five fossil fuel companies to California state court. The parties completed their briefing on the remand motion on January 15, 2018. The plaintiffs argued that their actions did not arise under federal common law because they were based on the defendants’ “production and improper promotion of fossil fuels in massive quantities – a basis of liability cognizable under state law but wholly foreign to federal common law.” The plaintiffs also said the defendants “badly err[ed]” in arguing that the Ninth Circuit held in Native Village of Kivalina v. ExxonMobil Corp. that all tort claims related to global warming were governed by federal common law. The city attorneys also asserted that none of the other theories in the defendants’ “kitchen-sink notices of removal” had merit: the plaintiffs argued that that their claim to relief did not necessarily raise a substantial and disputed federal issue and also asserted that no court had held that the Clean Air Act completely preempted state common law public nuisance claims. The plaintiffs also said that the fact that “some unspecified portion of [the defendants’] oil and gas production occurs on federal land” did not provide a basis for removal under the Outer Continental Shelf Lands Act or under a “federal officer” or “federal enclave” theory of removal. The plaintiffs also argued that the bankruptcy removal statute did not provide a basis for removal based on the 30-year-old bankruptcy of Texaco, a subsidiary of defendant Chevron Corporation.
In their opposition to the remand motion, the defendants asserted that the cases “implicate longstanding federal government policies, concerning matters of uniquely national importance, including the Nation’s supply of energy and the global environment” and argued that the plaintiffs’ actions necessarily were governed by federal common law and necessarily raised federal questions by seeking “to supplant federal domestic and foreign policy on greenhouse gas emissions to hold a handful of energy producers liable for the alleged consequences of rising ocean levels on a discrete portion of the U.S. coast.” The defendants also argued that the Clean Air Act completely preempted the actions because the statute “provides the exclusive cause of action for regulation of nationwide emissions.” The defendants also reiterated their arguments that the actions were removable because they were based on the defendants’ activities on federal lands and at the direction of the federal government, and because the claims would have an impact on a number of bankruptcy proceedings, not just Texaco’s, and because exemptions from bankruptcy jurisdiction for governmental exercises of police power were construed narrowly.
In their reply, the city attorneys asserted that the defendants’ assertions of federal jurisdiction “would federalize vast areas of traditional state law.” They emphasized that they did not seek to limit anyone’s emissions and that the only remedy sought was an “abatement fund” to shift adaptation costs from the public to the fossil fuel companies. The city attorneys also argued that the argument that the cases arose under federal law suffered from the “fatal defect” that they relied on “ordinary preemption doctrines” that did not provide a basis for removal. Other developments in this case included defendant Chevron’s filing of a third-party complaint against Statoil ASA—an energy company of which the Norwegian State is majority stakeholder—for indemnity and contribution. Chevron asserted that while the plaintiffs’ claims were meritless, Statoil, “as well as potentially the many other sovereign governments that use and promote fossil fuels,” must be joined as third-party defendants. People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. motion to remand Nov. 20, 2017; Statoil third-party complaintDec. 14, 2017; opposition to remand Dec. 19, 2017; and reply in support of remand Jan. 15, 2018).
Exxon Asked Texas State Court to Allow Depositions of Municipal Officials and Lawyers Involved in Climate Change Tort Lawsuits Against Fossil Fuel Companies
On January 8, 2018, Exxon Mobil Corporation filed a petition in Texas state court requesting an order allowing the company to conduct pre-suit depositions and obtain documents pertaining to potential claims of abuse of process, civil conspiracy, and violations of Exxon’s constitutional rights in connection with “abusive law enforcement tactics and litigation in California” that were “attempting to stifle ExxonMobil’s exercise, in Texas, of its First Amendment right to participate in the national dialogue about climate change and climate policy.” Exxon cited the tort lawsuits filed by California municipalities, as well as investigations being conducted by state attorneys general. The information sought by Exxon included the municipalities’ communications with third parties “about the real purposes of the litigation” or risk disclosures contained in their municipal bonds. Exxon alleged that the “stark and irreconcilable conflict” between the municipalities’ allegations in the lawsuits and their disclosures in bond offerings indicated that the lawsuits were brought “not because of a bona fide belief in any tortious conduct by the defendants or actual damage to their jurisdictions, but instead to coerce ExxonMobil and others operating in the Texas energy sector to adopt policies aligned with those favored by local politicians in California.” Exxon also alleged that the municipalities’ allegations were at odds with California’s actions seeking to recoup the fair market value of fossil fuels extracted on state public lands and that the municipalities did not acknowledge their own contributions to greenhouse gas emissions. In addition, Exxon asserted that the respondents named in the petition—which included municipal officials and attorneys—had made “repeated efforts … to conceal and possibly destroy evidence potentially relevant” to Exxon’s claims. In re Exxon Mobil Corp., No. 096-297222-18 (Tex. Dist. Ct. Jan. 8, 2018).
Parties Completed Briefing on Whether Exxon Stated Viable Claims Challenging Massachusetts and New York Climate Change Investigations; Exxon Sought to Amend Complaint
On December 21, 2017, the New York and Massachusetts attorneys general filed supplemental memoranda of law arguing that the federal district court for the Southern District of New York should dismiss Exxon Mobil Corporation’s (Exxon’s) lawsuit seeking to block their investigations of Exxon’s climate change-related disclosures for failure to state a claim. The attorneys general previously filed motions to dismiss based on the absence of a ripe injury or the Colorado River abstention doctrine. The Massachusetts attorney general also argued that a Massachusetts state court decision precluded Exxon’s claims and that the court lacked personal jurisdiction. At a hearing on November 30, 2017, the district court requested that the attorneys general update their briefing on dismissal pursuant to Rule 12(b)(6) (previously brief in Texas federal court) to reference Second Circuit law.
In its supplemental filing, the New York attorney general argued that Exxon’s claim that the investigation was an attempt to “suppress Exxon’s corporate viewpoint on climate change, in violation of the First Amendment,” was not plausible. The New York attorney general also argued that Exxon’s claims that the attorney general’s subpoena called for an unreasonable search in violation of the Fourth Amendment and violated the dormant Commerce Clause were without merit. In addition, the attorney general contended that Exxon’s allegations of “political bias” did not support a procedural due process claim, that Exxon’s claim that a Securities and Exchange Commission rule preempted the investigation was premature, and that the court was without jurisdiction to hear state law claims.
The Massachusetts attorney general’s supplemental memorandum of law argued that none of Exxon’s claims were plausible or legally cognizable. The attorney general argued that Exxon’s “bald, baseless” allegations that the investigation was undertaken “out of personal animus and in bad faith” to chill political speech did not meet pleading standards and could not sustain claims of conspiracy or abuse of process, or of violations of the First, Fourth, and Fourteenth Amendments. The Massachusetts attorney general further argued that Exxon’s preemption, dormant Commerce Clause, and other state claims failed as a matter of law.
In its opposition to the motions for dismissal for failure to state a claim, Exxon contended that its allegations established viewpoint discrimination and unlawful conspiracy to violate its rights. Exxon also asserted that it had preserved its right to bring a Fourth Amendment unreasonable search claim and had adequately pled such a claim. In addition, Exxon argued that its allegations stated a due process violation based on the “impermissible bias” of the attorneys general, that the allegations stated a claim under the dormant Commerce Clause based on the attempts by the attorneys general to regulate out-of-state speech, that the claim that SEC reporting requirements preempted investigation of Exxon’s reserves and asset impairments was timely, and that the Eleventh Amendment did not bar its state law claims.
Separately, Exxon sought permission to amend its complaint to incorporate “additional documentary evidence” that had “come to light” since Exxon last amended its complaint in November 2016. The additional allegations included that organizers of a 2012 workshop had lobbied the attorneys general to pursue the investigations and that the New York attorney general had contacts with “billionaire activist Tom Steyer about campaign support in connection with his investigation of ExxonMobil.” Exxon’s proposed amended complaint also contained allegations regarding communications with the Rockefeller Family Fund and regarding the Fund’s financing of “so-called investigative journalism that the Attorneys General have used as a pretext,” and allegations of improper concealment of public records and regarding a shift in the New York attorney general’s “investigative theory.”
Both attorneys general objected to amendment of the complaint. In reply papers in support of dismissal, the Massachusetts attorney general asserted that the amended complaint added no further facts regarding Attorney General Healey and would not cure the “fatal defects” of the claims against her. The New York attorney general also asserted that the amendment “does nothing to shore up Exxon’s deficient claims.” In particular, the New York attorney general said controlling Second Circuit precedent foreclosed a claim of politically motivated conspiracy and that, in any event, the “purportedly new information” offered by Exxon “would not make this claim plausible.” Exxon Mobil Corp. v. Schneiderman, No. 17-cv-2301 (S.D.N.Y. NYAG and Mass. AG supplemental memoranda of law Dec. 21, 2017; Exxon opposition, motion for leave to amend, proposed amended complaint, and redlined amended complaint Jan. 12, 2018).
Conservation Groups Challenged Recovery Plan for Mexican Wolves
WildEarth Guardians and Western Watersheds Project filed a lawsuit alleging that the final Mexican wolf recovery plan violated the Endangered Species Act and Administrative Procedure Act. The plaintiffs alleged, among other claims, that the recovery plan failed to utilize best available science to assess threats to the endangered Mexican wolf, including threats from ongoing and future impacts of climate change. WildEarth Guardians v. Zinke, No. 4:18-cv-00048 (D. Ariz., filed Jan. 30, 2018).
Federal Court Held Trial on Terminal Developer’s Claim That Oakland’s Ban on Coal Transport Violated Development Agreement
During the week of January 15, the federal district court for the Northern District of California held a three-day bench trial in an action challenging the City of Oakland’s prohibition on the transportation and export of coal and petroleum coke to and through a rail and marine terminal for bulk and oversized cargo under development on land owned by the City. The bench trial concerned the terminal developer’s claim that the prohibition breached a development agreement that granted the developer the right and obligation to develop the land. The City argued that the development agreement allowed it to impose regulations on the development based on “substantial evidence” that regulation was necessary to avoid placing occupants, users, or neighbors of the project “in a condition substantially dangerous to their health or safety.” While the developer argued that the City could not rely on concerns regarding the potential for terminal operations to contribute to climate change because climate change is an issue of global scale, the City argued that “the unique, global nature of climate change doesn’t mean communities cannot or should not consider local, incremental contributions to climate change.” The City also cited other public health and safety concerns, including coal dust emissions. Prior to the trial, the court heard oral arguments on whether the City’s prohibition violated the dormant Commerce Clause because it interfered with or discriminated against interstate or foreign commerce. Also at issue in the case is whether the Interstate Commerce Commission Termination Act, the Hazardous Materials Transportation Act, or the Shipping Act of 1984 preempt the City’s action. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 3:16-cv-07014 (N.D. Cal. Jan. 2018).
California and Environmental Groups Challenged BLM’s Repeal of Hydraulic Fracturing Regulations
On January 24, 2018, California and eight environmental groups filed actions in the federal district court for the Northern District of California challenging the U.S. Bureau of Land Management’s (BLM’s) decision to repeal 2015 regulations that govern hydraulic fracturing on federal and tribal lands. California’s and the environmental groups’ complaints both alleged that BLM’s repeal of the regulations violated the Administrative Procedure Act, the National Environmental Policy Act (NEPA), and several federal land management statutes (Mineral Leasing Act, Federal Land Policy and Management Act, and Indian Mineral Leasing Act). California’s NEPA claim was based in part on the defendants’ failure to consider potential significant adverse environmental impacts, including climate change harms. California v. U.S. Bureau of Land Management, No. 3:18-cv-00521 (N.D. Cal., filed Jan. 24, 2018); Sierra Club v. Zinke, No. 3:18-cv-00524 (N.D. Cal., filed Jan. 24, 2018).
Lawsuit Alleged That Management of Lobster Fishery Violated Federal Laws Protecting Climate-Threatened North American Right Whales
Three non-profit groups filed a lawsuit in the federal district court for the District of Columbia alleging that the authorization and management of the American lobster fishery violated the Endangered Species Act, Marine Mammal Protection Act, and Administrative Procedure Act due to impacts on endangered North American right whales. The National Marine Fisheries Service (NMFS) issued a biological opinion in 2014 determining that ongoing operations of the fishery were likely to kill or seriously injure more than three right whales every year but that fishery was not likely to jeopardize the right whales’ continued existence. The complaint alleged, among other things, that the NMFS’s jeopardy analysis was “patently unlawful” and had “improperly consider[ed] only the isolated share of responsibility for impacts to right whales from operation of the fishery, rather than adding the direct and indirect effects of operation of the fishery to all other activities and influences that affect the status of the species,” which include threats from climate change. Center for Biological Diversity v. Ross, No. 1:18-cv-00112 (D.D.C., filed Jan. 18, 2018).
Environmental Organization Filed FOIA Lawsuit Seeking EPA Directives to Employees on Public Communications About and Political Review of Work
An environmental advocacy organization filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the Northern District of California seeking to compel the U.S. Environmental Protection Agency (EPA) to produce instructions issued to EPA employees since President Trump’s inauguration about speaking publicly about their work or about review of EPA work by political appointees. The organization submitted its FOIA request on February 1, 2017 and alleged that EPA had failed to issue a final determination on the request. The complaint alleged that the documents sought were “crucial” because, among other reasons, they would “reveal the impact of partisan politics on the agency’s priorities, operations, and implementation, all of which have consequences for imperiled wildlife, catastrophic climate change, and public health in communities across the country.” Ecological Rights Foundation v. EPA, No. 3:18-cv-00394 (N.D. Cal., filed Jan. 18, 2018).
Lawsuit Filed Challenging Resiliency Analysis for Railroad Bridge in Connecticut
A local conservation organization filed a lawsuit in federal district court in Connecticut challenging the environmental review pursuant to the National Environmental Policy Act for the Norwalk River Railroad Bridge replacement project in Norwalk, Connecticut. The organization contended that the defendant agencies had failed to consider the reasonable alternative of a fixed bridge at the level of the existing swing bridge. The organization alleged that the fixed bridge alternative would promote resiliency to climate change and severe weather events, and particularly to heatwaves, which the complaint alleged could cause rail tracks to expand, buckle, and warp and potentially prevent proper closure of the bridge and lead to the need for track repairs and speed restrictions. The organization asserted that although the environmental assessment (EA) for the project recognized resiliency to climate change and severe weather events as a “critical parameter” for evaluation of design alternatives, the EA had failed “to follow through with an adequate resiliency analysis.” The complaint also alleged that the project’s funding through a post-Superstorm Sandy grant program could be placed in jeopardy if the project was found not to advance the grant program’s public transit resiliency priorities. Norwalk Harbor Keeper v. U.S. Department of Transportation, No. 3:18-cv-00091 (D. Conn., filed Jan. 17, 2018).
Shell Asked Rhode Island Federal Court to Dismiss Citizen Suit Asserting That Failure to Prepare Terminal for Climate Change Violated Clean Water Act and RCRA
On January 12, 2018, Shell Oil entities (Shell) moved to dismiss the citizen suit brought by Conservation Law Foundation (CLF) in the federal district court for the District of Rhode Island alleging that Shell violated the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) at a bulk storage and fuel terminal in Providence. CLF alleged in an amended complaint filed in October 2017 that Shell had not taken information about climate change risks into account in designing, constructing, and operating the terminal. CLF asserted that Shell’s disregard of the risks and continuing failure to protect the terminal from the risk made Shell liable for violations of the Clean Water Act and RCRA. In the motion to dismiss, Shell argued that CLF lacked standing because the alleged injuries were “highly speculative, remote, or hypothetical” and also flowed from severe precipitation and flooding events that were “wholly unrelated” to the defendants. Shell also asserted that the complaint’s adaptation claims were not ripe and that CLF failed to state a claim under either the Clean Water Act or RCRA because its “failure to adapt” allegations amounted to “conclusory legal statements.” Shell also said the court should defer to Rhode Island—which Shell said was “actively evaluating new measures for controlling the flow of stormwater discharges attributable to potential severe precipitation and flooding related to climate change”—and abstain from considering the Clean Water Act adaptation claims. Shell further asserted that the RCRA claim should be dismissed under the doctrine of primary jurisdiction because Rhode Island’s environmental agency was overseeing cleanup of the facility and was obligated by statute to take climate change impacts into account. In addition, Shell said the court did not have subject matter jurisdiction over the terminal’s former owner/operator. Conservation Law Foundation v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. amended complaint Oct. 25, 2017; motion to dismiss Jan. 12, 2018).
Exxon Sought to Dismiss Amended Claims Regarding Climate Change Preparation at Massachusetts Terminal
Exxon Mobil Corporation and related entities (Exxon) moved to dismiss Conservation Law Foundation’s (CLF’s) amended complaint alleging that Exxon violated the Clean Water Act and Resource Conservation and Recovery Act by failing to prepare a marine distribution terminal in Massachusetts for severe weather and other climatic events. CLF alleged that Exxon had failed to design the terminal or its waste water treatment system “to address precipitation and/or flooding, which is exacerbated by storms and storm surges, sea level rise, and increasing sea surface temperatures.” CLF alleged that climate change was increasing the frequency and severity of events such as extreme rainfall. In support of motion to dismiss, Exxon argued that CLF had defied the court’s earlier ruling that CLF lacked standing for injuries that would occur “in the far future” due to climate change impacts. Exxon asserted that CLF continued “to assert climate change claims premised on distant and speculative impacts” and had failed to identify violations of the facility’s National Pollutant Discharge Elimination System permit. Exxon argued that the Clean Water Act’s permit shield and the collateral attack doctrine barred CLF’s claims. CLF responded that its amended complaint focused “only on the past, present, and near-term injuries associated with Exxon’s violations.” CLF characterized the issue before the court as “whether the climatic changes outlined by CLF were and are occurring during the relevant time frame and whether they should have been considered and addressed by Exxon.” Conservation Law Foundation v. Exxon Mobil Corp., No. 1:16-cv-11950 (D. Mass. motion to dismiss Dec. 20, 2017; plaintiff’s opposition to motion to dismiss Jan. 19, 2018; Exxon corrected memorandum of law Jan. 25, 2018).
Lawsuit Filed Challenging Corps of Engineers Approvals for Crude Oil Pipeline in Louisiana; Court Denied TRO
On January 11, 2018, six organizations filed a lawsuit in the federal district court for the Middle District of Louisiana challenging permits and authorizations issued by the U.S. Army Corps of Engineers for the Bayou Bridge Pipeline, a 162.5-mile-long pipeline that would carry crude oil from Lake Charles, Louisiana, to St. James, Louisiana. The plaintiffs alleged that the Corps had not complied with the Clean Water Act, the Rivers and Harbors Act, or the National Environmental Policy Act, including by conducting a “plainly inadequate” environmental review that “failed to assess the climate impacts of ‘locking in’ future reliance on fossil fuels with a massive infrastructure investment.” The complaint also alleged that the Corps’ “public interest” review pursuant to the Clean Water Act and Rivers and Harbors Act did not adequately consider floodplains and coastal loss impacts. The complaint asserted that Executive Order 11988 required the Corps to “consider alternatives to avoid adverse effects and incompatible development in the floodplains.” On January 29, the organizations filed motions for a temporary restraining order (TRO) and preliminary injunction. The court denied the TRO motion on January 30, finding that the plaintiffs had not demonstrated a substantial likelihood of success on the merits “at this early stage in the proceedings.” A hearing on the preliminary injunction motion was scheduled for February 8, 2018. Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, No. 3:18-cv-00023 (M.D. La., filed Jan. 11, 2018; motions for TRO and preliminary injunction Jan. 29, 2018; TRO denied Jan. 30, 2018).
Companies Sued Washington State Officials for Blocking Development of Coal Export Terminal
A coal company and other companies associated with the proposed development of a coal export terminal in Longview, Washington, filed a lawsuit in federal court against Governor Jay Inslee and two other Washington State officials, alleging that the defendants took actions to block a coal export terminal in violation of the dormant Commerce Clause. The plaintiffs also asserted that the defendants’ actions were preempted by the Interstate Commerce Commission Termination Act and the Ports and Waterways Safety Act. The complaint alleged that the defendants had expressed “unyielding opposition to coal and coal exports,” citing the governor’s writings and statements regarding his concerns about coal combustion and export and climate change. The complaint also alleged that the defendants coordinated with other states to block coal exports. The plaintiffs asserted that the defendants violated the dormant foreign and interstate Commerce Clause by denying and refusing to process permits and expanding the scope of State Environmental Policy Act review beyond the boundaries of the state. Lighthouse Resources Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash., filed Jan. 3, 2018).
Colorado Supreme Court Agreed to Consider Whether Oil and Gas Commission Correctly Interpreted State Law in Denying Kids’ Rulemaking Petition
The Colorado Supreme Court agreed to review a ruling by the Colorado Court of Appeals that held that the Colorado Oil and Gas Conservation Commission (COGCC) had incorrectly concluded that it lacked statutory authority to undertake a proposed rulemaking sought by six children. The children submitted a rulemaking petition in 2013 asking COGCC to promulgate a rule “to suspend the issuance of permits that allow hydraulic fracturing until it can be done without adversely impacting human health and safety and without impairing Colorado’s atmospheric resource and climate system, water, soil, wildlife, other biological resources.” A district court affirmed COGCC’s denial of the petition, but the Court of Appeals rejected COGCC’s assertion that the requested rule was beyond the limited authority conferred by the Oil and Gas Conservation Act. The Court of Appeals concluded that the Act mandated that oil and gas development “be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” The Colorado Supreme Court granted petitions for writ of certiorari filed by COGCC and American Petroleum Institute and Colorado Petroleum Association. The court said it would consider the issue of “[w]hether the court of appeals erred in determining that the Colorado Oil and Gas Commission misinterpreted section 34-60-102(1)(a)(I), C.R.S. as requiring a balance between oil and gas development and public health, safety, and welfare.” Colorado Oil & Gas Conservation Commission v. Martinez, No. 2017SC297 (Colo. Jan. 29, 2018).
Environmental Groups Said California County’s Permitting Plan for Dairies Did Not Adequately Address Greenhouse Gas Emissions
Three environmental groups filed a lawsuit in California Superior Court alleging that Tulare County violated the California Environmental Quality Act (CEQA) when it approved an Animal Confinement Facilities Plan (ACFP), a related General Plan Amendment and zoning change, and a Dairy Feedlot and Dairy Climate Action Plan. The groups alleged that “[t]he dairy industry in Tulare County is a multi-billion dollar industry” and that the ACFP was “intended to make approval of new or expanded dairies quicker and easier.” The groups said the environmental impact report (EIR) prepared by the County failed to adequately describe the environmental baseline, failed to consider any greenhouse gas mitigation measures that would result in substantial reductions of the EIR’s projected increases in emissions, and improperly deferred formulation of greenhouse gas reduction mitigation measures without adopting a meaningful threshold of significance or performance standard or a commitment to ensuring emissions would be adequately mitigated. The groups also said the streamlined CEQA procedures described in the EIR improperly exempted new expansion projects from review if they generate less than 25,000 metric tons of greenhouse gas emissions and meet certain siting requirements. The EIR said that the three largest sources of greenhouse emissions would be manure decomposition, enteric digestion, and emissions from farm agricultural soils. Sierra Club v. County of Tulare, No. VCU272380 (Cal. Super. Ct., filed Jan. 11, 2018).
Trade Association and Power Plant Owner Told Massachusetts State Court That Greenhouse Gas Emissions Limitations for Electricity Generators Were Unlawful
On January 16, 2018, New England Power Generators Association (NEPGA) and GenOn Energy, Inc. (GenOn) moved for judgment on the pleadings in their action challenging regulations adopted by the Massachusetts Department of Environmental Protection and the Executive Office of Energy and Environmental Affairs that imposed greenhouse gas emissions reductions requirements on electricity generating facilities. NEPGA is a trade association representing competitive power generators; GenOn owns power plants in Massachusetts. NEPGA and GenOn argued that the regulations were beyond the agencies’ authority because they were inconsistent with the Global Warming Solutions Act (GWSA), which NEPGA and GenOn said circumscribed the agencies’ authority to regulate electric sector greenhouse gas emissions by requiring that regulations take the regional electricity market into account. NEPGA also contended that the GWSA barred the agencies from imposing emissions limitations that extended beyond the statute’s sunset date in 2020. In addition, NEPGA and GenOn argued that the regulations were arbitrary and capricious because “[t]hey would have the perverse impact of causing an increase in statewide greenhouse gas emissions” due to the importing of electricity from less efficient power plants outside of Massachusetts—the plaintiffs said the only modeling in the record demonstrated that this increase would occur. New England Power Generators Association v. Massachusetts Department of Environmental Protection, No. 17-02918-D (Mass. Super. Ct. motion for judgment on the pleadings Jan. 16, 2018).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
Colombian Youth Plaintiffs Filed Suit Against the Colombian Ministry of Environment and Others to Enforce Their Right to a Healthy Environment
According to a press release and copy of the complaint obtained from the organization Dejusticia, 25 youth plaintiffs between the ages of 7 and 26 years old have sued several bodies within the Colombian government, Colombian municipalities, and a number of corporations to enforce their claimed rights to a healthy environment, life, health, food, and water. The plaintiffs allege that climate change along with the government’s failure to reduce deforestation and ensure compliance with a target for zero-net deforestation in the Colombian Amazon by the year 2020, (as agreed under the Paris Agreement and the National Development Plan 2014-2018), threatens plaintiffs’ fundamental rights. The youth plaintiffs have filed a special constitutional claim called a “tutela” used to enforce fundamental rights. Full summary to follow upon review of a translation of the complaint. Future Generation v. Ministry of the Environment and Others, No. __ (Colom. Super. Trib., filed Jan. 29, 2018).