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 # 107.
Federal Court Denied Oakland and San Francisco Motions to Return Climate Change Nuisance Cases to State Court; Found Federal Common Law of Nuisance Could Apply, Despite AEP v. Connecticut; Requested “Tutorial” on Climate Change
The federal district court for the Northern District of California denied Oakland’s and San Francisco’s motions to remand their climate change public nuisance lawsuits against five major fossil fuel producers to state court. The court held that federal common law necessarily governed the nuisance claims because “[a] patchwork of fifty different answers to the same fundamental global issue would be unworkable” and “the extent of any judicial relief should be uniform across our nation.” The court stated: “Plaintiffs’ claims for public nuisance, though pled as state-law claims, depend on a global complex of geophysical cause and effect involving all nations of the planet (and the oceans and atmosphere). It necessarily involves the relationships between the United States and all other nations. It demands to be governed by as universal a rule of apportioning responsibility as is available.” The court dispensed with the cities’ three primary arguments for remanding the cases. First, the court said the cities’ novel theories of liability based on the defendants’ sales of their product did not differentiate their claims from earlier transboundary pollution suits in which the Supreme Court (American Electric Power Co. v. Connecticut) and Ninth Circuit (Native Village of Kivalina v. ExxonMobil Corp.) applied federal common law. Second, the court said the Clean Air Act did not displace the plaintiffs’ federal common law claims, allowing state law to govern; the court said that while the Clean Air Act spoke directly to the “domestic emissions” issues presented in American Electric Power and Kivalina, “[h]ere, the Clean Air Act does not provide a sufficient legislative solution to the nuisance alleged to warrant a conclusion that this legislation has occupied the field to the exclusion of federal common law.” Third, the court said the well-pleaded complaint rule did not bar removal. The court certified the decision for interlocutory appeal, finding that the issue of whether the nuisance claims were removable because such claims are governed by federal common law was a controlling question as to which there is substantial ground for difference of opinion and that resolution by the court of appeals would materially advance the litigation. The court’s order also noted that six similar actions brought by other California municipalities were pending before another judge in the district and those actions asserted additional non-nuisance claims. On March 1, the court set a schedule for motions to dismiss, with the parties’ briefing to be completed by April 10. The court invited the United States to submit (by April 20, if possible) “an amicus brief on the question of whether (and the extent to which) federal common law should afford relief of the type requested by the complaints.”
Separately, the court issued a “Notice re Tutorial” that invited counsel for the parties to conduct a two-part tutorial on global warming and climate change on March 21. The court gave each side an hour to “trace the history of scientific study of climate change” and an hour to “set forth the best science now available on global warming, glacier melt, sea rise, and coastal flooding.”
Earlier in February, the court issued a request for supplemental briefing on the issue of how the concept of “navigable waters of the United States” related to removal jurisdiction. The court stated that the issue arose “because a necessary and critical element of the hydrological damage caused by defendants’ alleged conduct is the rising sea level along the Pacific coast and in the San Francisco Bay, both of which are navigable waters of the United States.” In its order denying remand, the court indicated in dicta that “the very instrumentality of plaintiffs’ alleged injury — the flooding of coastal lands — is, by definition, the navigable waters of the United States. Plaintiffs’ claims therefore necessarily implicate an area quintessentially within the province of the federal courts.” The court said defendants had not waived this issue. People of State of California v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. order setting schedule Mar. 1, 2018; order denying remand and notice re tutorial Feb. 27, 2018; request for supplemental briefing Feb. 12, 2018).
DECISIONS AND SETTLEMENTS
Ninth Circuit Reinstated Listing of Arctic Ringed Seals as Threatened
The Ninth Circuit Court of Appeals reversed a district court decision that vacated the listing of the Arctic ringed seal as threatened under the Endangered Species Act (ESA). In an unpublished decision, the Ninth Circuit said its 2016 opinion reversing a district court’s striking down of the listing of the bearded seal adjudicated the same issues and was the controlling law of the circuit. As in that case, the Ninth Circuit found that the National Marine Fisheries Service’s finding that the Arctic ringed seal was likely to become endangered within the foreseeable future due to their reliance on sea ice was reasonable and supported by the record. The court said it was not arbitrary or capricious to rely on climate change models that projected through 2100. The Ninth Circuit also said the district court had misapplied Section 4 of the ESA by requiring quantitative data that was not available to pinpoint an extinction threshold. Alaska Oil & Gas Association v. Ross, No. 16-35380, 16-35382 (9th Cir. Feb. 12, 2018).
Louisiana Federal Court Halted Work on Crude Oil Pipeline in Swamp Area
The federal district court for the Middle District of Louisiana enjoined work on the Bayou Bridge Pipeline in the Atchafalaya Basin in Louisiana. The planned pipeline is to be 162.5 miles long and is intended to carry crude oil. The plaintiffs’ complaint asserting National Environmental Policy Act (NEPA), Clean Water Act, and Rivers and Harbors Act violations included allegations that the U.S. Army Corps of Engineers had failed to analyze climate impacts and that floodplain and coastal loss impacts had not been considered as part of the required “public interest” analysis. The court found that the plaintiffs had established the threat of irreparable harm, including loss of legacy trees in the cypress forest swamp that the pipeline would cross, threats to the Atchafalaya Basin’s hydrology, and potential destruction of already diminishing wetlands. The court also found that the plaintiffs had demonstrated a likelihood of success on the merits of their claims that environmental assessment documents did not provide assurance that the mitigation plan would be successful in achieving the Clean Water Act’s restorative goals and that the Corps’ review did not adequately assess cumulative impacts. The pipeline’s developer said it would appeal the ruling and asked the district court for a stay pending appeal. Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, No. 3:18-cv-00023 (M.D. La. motion for stay pending appeal Mar. 1, 2018; ruling Feb. 27, 2018).
California Federal Court Upheld Environmental Law Waivers for Border Wall
The federal district court for the Southern District of California rejected challenges to waivers of environmental laws granted by the Department of Homeland Security (DHS) for certain types of border wall construction projects in San Diego County. DHS had waived the requirements of NEPA, the Endangered Species Act, the Coastal Zone Management Act, and other laws pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. California and the California Coastal Commission—the plaintiffs in one of the three actions challenging the waivers—alleged that impacts of the projects’ construction on climate change were some of the impacts that would not be assessed as a result of the waivers. In its decision granting summary judgment to DHS and the other defendants, the court found that the defendants had not violated any “clear and mandatory” obligations in Section 102 and that in the absence of any such violations Section 102 established a jurisdictional bar to hearing any non-constitutional claims. The court rejected all of the plaintiffs’ constitutional claims. The court found that Section 102 did not violate the non-delegation doctrine or separation of powers principles; the Take Care Clause; Article I, Sections 2 and 3; the Presentment Clause (Article I, Section 7); constitutional protections of rights to petition the government and the courts; or the Tenth Amendment. In re: Border Infrastructure Environmental Litigation, No. 17cv1215, 17cv1873, 17cv1911 (S.D. Cal. Feb. 27, 2018).
D.C. Federal Court Dismissed Challenge to Executive Order on Reducing Regulation
The federal district court for the District of Columbia concluded that it lacked jurisdiction to consider an action challenging President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs” because the plaintiffs had failed to establish that they had standing to sue. First, the court said the non-profit groups that were the plaintiffs in the action failed to establish “associational” standing based on harm to their members from the delay or preclusion of regulatory actions by the executive order. For instance, the court found that the Natural Resources Defense Council—which contended that one of its members suffered harm due to delay of “rules to curb climate change”—had not identified a particular rule or regulatory action that would address the member’s concerns. The court stated: “Any injury allegedly stemming from the prospect that the Executive Order has delayed the issuance of unspecified regulations relating to a broadly defined area of concern is too abstract and speculative to support standing.” Second, the court found that the plaintiffs had failed to establish “organizational” standing. The court said the plaintiffs had failed to show they suffered an injury in fact based on the executive order’s alleged “chilling effect” on their mission to encourage agencies to adopt regulations or that such an injury was fairly traceable to the executive order. Public Citizen, Inc. v. Trump, No. 1:17-cv-00253 (D.D.C. Feb. 26, 2018).
California Federal Court Barred BLM from Enforcing Delay of Oil and Natural Gas Waste Prevention Rule; States, Trade Groups Asked Wyoming Court to Expedite Review of Rule and Suspend Deadlines
The federal district court for the Northern District of California granted motions for a preliminary injunction barring the U.S. Bureau of Land Management (BLM) from enforcing its rule delaying and suspending the requirements of its Waste Prevention Rule, which is intended to “to reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian (other than Osage Tribe) leases.” The court found that BLM’s reasoning for delaying the rule was “untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule” and that plaintiffs were therefore likely to prevail on the merits. The court also found that the plaintiffs had demonstrated irreparable injury based on “the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.” The court also denied motions to transfer the action to the District of Wyoming, where a challenge to the Waste Prevention Rule is pending. The California federal court said the substantive legal issues in the District of Wyoming case were distinct from the procedural issues at issue in this action. A few days after the California court issued its order, North Dakota and Texas asked the Wyoming federal court to lift a stay that the court had imposed in December 2017. The two states said the circumstances providing a basis for the stay (i.e., BLM’s expressed intent to change the regulations and its rule delaying the regulations’ effectiveness) no longer existed after the California court granted the preliminary injunction. The states said the Wyoming federal court should complete its review and do so on an expedited basis to prevent harm to the parties even though BLM published a proposal to revise and rescind certain requirements of the rule on February 22. On February 28, Montana and Wyoming filed a motion seeking to lift the stay and also seeking immediate suspension of the Waste Prevention Rule’s implementation deadlines. In addition, two trade groups asked the Wyoming court either to bar BLM from enforcing the rule’s core provisions or to exercise its equitable powers to vacate the core provisions until BLM completed its rulemaking process. California v. Bureau of Land Management, No. 3:17-cv-07187 (N.D. Cal. Feb. 22, 2018); Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. Feb. 26, 2018).
California Federal Court Ordered Publication of Obama-Era Energy Conservation Standards in Federal Register
The federal district court for the Northern District of California ordered the U.S. Department of Energy to publish energy conservation standards adopted in December 2016 that had never taken effect because DOE failed to publish them in the Federal Register. The standards are for portable air conditioners, air compressors, commercial packaged boilers, and uninterruptible power supplies. DOE estimated that the standards would reduce carbon dioxide emissions by 99 million metric tons and save consumers and businesses $8.4 billion over a 30-year period. The court found that DOE’s failure to publish the standards violated its non-discretionary duty under the Energy Policy and Conservation Act to publish an energy standard in the Federal Register at the end of an error-correction process specified in the regulations. The court rejected the argument the regulations preserved “free-standing authority” for DOE to continue to assess, modify, or withdraw energy standards or created only a discretionary obligation. Natural Resources Defense Council, Inc. v. Perry, No. 3:17-cv-03404 (N.D. Cal. Feb. 15, 2018).
California Federal Court Found Inadequate Analysis of Climate Change Impacts on Water Transfer Project Under NEPA But Said Analysis Satisfied CEQA Requirements
The federal district court for the Eastern District of California held that more analysis of the impacts climate change would have on a water transfer program for the Sacramento/San Joaquin Delta was required under NEPA. The court ruled, however, that the California Environmental Quality Act (CEQA) did not require additional climate change analysis. The plaintiffs had challenged the CEQA “baseline” for “fail[ing] to account for ongoing increases in global temperatures,” but the court found that the plaintiffs did not develop the argument “in any serious way” and said it would not “manufacture an argument where none is made and where none exists.” With respect to the analysis of impacts associated with climate change, the court noted the general rule under CEQA that an environmental impact report need not evaluate the impacts of the environment on a project and found that the plaintiffs had not met their burden of identifying evidence that the project would “exacerbate” climate change impacts. Under NEPA, however, the court said the parties appeared to be in agreement that climate change’s impact on the project needed to be considered. The court found that the final environmental impact statement/report (FEIS/R) disclosed predicted declines in snowpack and streamflow due to climate change but failed to explain why the declines would not have significant impacts. The decision also addressed a number of non-climate change claims under NEPA, the Endangered Species Act, CEQA, and other state law. AquAlliance v. U.S. Bureau of Reclamation, No. 1:15-cv-00754 (E.D. Cal. Feb. 15, 2018).
California Court Set Aside Environmental Reviews for Plant Pest Prevention and Management Program but Rejected Argument that Agency Failed to Consider Greenhouse Gas and Other Impacts of Program Modifications
A California state court granted petitions to set aside a program environmental impact report (PEIR) and PEIR addendum for the Statewide Plant Pest Prevention and Management Program, but not on grounds related to the petitioners’ arguments that the greenhouse gas impacts of modifications to the Program had not been assessed. The petitioners contended that the Department of Food and Agriculture’s finding that a supplemental environmental impact report was not required for the modifications was not supported by substantial evidence because the Department had not considered whether the modifications would alter categories of impacts the PEIR identified as significant or potentially significant, including impacts on greenhouse gas emissions. The court said that it agreed with the Department on this front and found that the petitioners had failed to meet their burden. North Coast Rivers Alliance v. California Department of Food & Agriculture, No. 34-2015-80002005 (Cal. Super. Ct. judgment Feb. 22, 2018; consolidated ruling Jan. 8, 2018).
Arizona Court Ordered Production of Climate Scientists’ Emails Under Arizona’s Public Records Law
The Arizona Superior Court denied the Arizona Board of Regents’ motion for a new trial and request for further proceedings and findings in accordance with mandate in Energy & Environment Legal Institute’s lawsuit seeking to compel disclosure of the emails of two climate scientists at the University of Arizona. The court ordered the Board of Regents to produce all requested records within 90 days. Energy & Environment Legal Institute v. Arizona Board of Regents, No. C20134963 (Ariz. Super. Ct. Feb. 26, 2018).
Stanford Professor Withdrew Defamation Lawsuit Against Author and Publisher of Article That Critiqued Professor’s Article
Stanford Professor Mark Jacobson withdrew his lawsuit against the lead author and publisher of an article that critiqued an article by Jacobson and others on grid reliability and renewable energy. Jacobson’s lawsuit asserted defamation, breach of contract, and promissory estoppel claims. On the day he withdrew the lawsuit, Jacobson released a statement on “Questions and Answers Concerning the Lawsuit Around The Paper PNAS 114, 6722-6727 (2017) (hereinafter C17)” in which he said he withdrew the lawsuit because of the time it would take to prosecute it and because he felt he had succeeded in bringing some of the defendant author’s allegedly false claims to light “so that at least some people reading C17 will be aware of the factually inaccurate statements.” Jacobson v. Clack, No. 2017 CA 006685 B (D.C. Super. Ct. notice of dismissal and statement Feb. 22, 2018).
West Virginia Court Dismissed Defamation Suit Against John Oliver Brought by Coal Executive and His Companies
A West Virginia state court notified counsel that it would dismiss the lawsuit brought by coal executive Robert E. Murray and some of his coal companies against the comedian John Oliver and other defendants involved in the production and broadcasting of Oliver’s television show Last Week Tonight. The plaintiffs asserted claims of defamation, false light invasion of privacy, and intentional infliction of emotional distress on the grounds that the defendants knowingly broadcast in a June 2017 episode malicious statements that they knew to be false based on information provided by the plaintiffs. The court adopted, “with little exception,” the arguments in the defendants’ motion to dismiss for failure to state a claim. A spokesperson for the defendants said they would appeal. Marshall County Coal Co. v. Oliver, No. 17-C-124 (W. Va. Cir. Ct. Feb. 21, 2018).
North Dakota Court Sentenced “Valve-Turner” Activist to Year in Prison
A North Dakota state court sentenced two environmental activists who participated in the #ShutItDown “valve-turners” action coordinated by the group Climate Direct Action. The action involved closing valves on pipelines in Washington, Montana, Minnesota, and North Dakota. The Climate Disobedience Action Fund reported that the North Dakota court sentenced an activist who disabled the TransCanada Keystone 1 tar sands pipeline in North Dakota to three years in prison, with two years deferred. He had been convicted of misdemeanor trespass and felony criminal mischief and conspiracy to commit criminal mischief in October 2017. A second activist who filmed the action was convicted of felony conspiracy to commit criminal mischief and conspiracy trespass, a misdemeanor. CBAF reported that the second activist was sentenced to two years in prison, with both years deferred. State v. Foster, 34-2016-CR-00187 (N.D. Dist. Ct. Feb. 6, 2018).
NEW CASES, MOTIONS, AND NOTICES
FERC and Pipeline Project’s Developers Sought to Delay D.C. Circuit’s Revocation of Project Authorizations
After the D.C. Circuit denied rehearing of its decision requiring additional environmental review of greenhouse gas emissions associated with the Southeast Market Pipelines Project, the Federal Energy Regulatory Commission (FERC) and the project’s developers filed motions to stay issuance of the mandate. In their motions, which were filed on February 6, 2018, FERC sought a 45-day stay, and the developers sought a 90-day stay. FERC stated that it had issued a final supplemental environmental impact statement on February 5 and that it would issue an order in compliance with the court’s mandate within 45 days. In the meantime, FERC argued, a vacatur order by the court would revoke certificates of public convenience and necessity for pipelines currently providing natural gas to Florida power plants, which could potentially endanger the electricity supply to Florida residents. The developers’ motion asserted that FERC had cured the environmental review deficiencies identified by the court (notwithstanding petitioners’ criticisms of the methodologies used by FERC) and that vacatur would cause significant irreparable economic and environmental harms. The developers further argued that it was appropriate to stay the mandate to avoid irreparable harm during preparation of and disposition of a petition for writ of certiorari and that stay of the mandate was warranted even under the traditional test for stay pending appeal. On February 16, the petitioners filed a response opposing the motions for stay of issuance of mandate, arguing that there was not good cause to allow FERC and the developers to use a stay “to skirt the vacatur”; the petitioners also argued that the court should not “pre-judge” whether FERC’s additional environmental review complied with the court’s remand order. In addition, the petitioners argued that there would not be irreparable harm to consumers or to the environment and that economic harm to the developers did not justify delaying the mandate. The developers have also asked FERC to expedite reissuance of certificates authorizing the project or to issue temporary emergency certificates. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. FERC and intervenors’ motions to stay issuance of mandate Feb. 6, 2018; petitioners’ response Feb. 16, 2018; FERC and intervenors’ replies Feb. 23, 2018).
Seventh Circuit Invited U.S. to Weigh in on Illinois Zero Emissions Credit Program for Nuclear Plants
In the pending appeal challenging an Illinois law that established a Zero Emissions Credit (ZEC) program to support certain nuclear plants, the Seventh Circuit Court of Appeals issued an order inviting the United States “to file a brief as amicus curiae expressing the views of the government in these consolidated cases.” One issue raised by the Seventh Circuit is whether it should defer to the primary jurisdiction of the Federal Energy Regulatory Commission. The plaintiffs have argued that the ZEC program is preempted and that it violates the dormant Commerce Clause. Village of Old Mill Creek v. Star, No. 17-2445 (7th Cir. Feb. 21, 2018).
U.S.-Based Fossil Fuel Companies Filed Motions to Dismiss New York City’s Climate Change Lawsuit
The three U.S.-based fossil fuel companies sued by New York City in its lawsuit seeking damages for climate change impacts filed motions to dismiss on February 23, 2018. The three U.S.-based companies are Chevron Corporation, Exxon Mobil Corporation, and ConocoPhillips. In a joint memorandum of law, these companies argued that New York City’s claims arise under federal common law and that the Clean Air Act has displaced the federal common law or, alternatively, that the plaintiffs’ “expansive derivative theory of liability” fails to state a claim that complies with federal common law standards. The defendants also argued that the claims infringe on the federal foreign affairs power, are barred by the Commerce Clause and Due Process and Takings Clauses, and are preempted by federal law. In addition, the three companies contended that the City does not state viable state law claims and that the claims are not justiciable because they do not present a justiciable case or controversy; because they present political questions; and because the City lacks standing. In separate motions, Exxon Mobil and ConocoPhillips sought dismissal for lack of personal jurisdiction. In a letter to the court on March 2, the parties asked the court to defer further briefing on the U.S.-based defendants’ personal jurisdiction motions and also to defer briefing on foreign-based defendants’ motions to dismiss until after the court rules on the U.S.-based companies motion that raises issues under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. New York City’s response to the 12(b)(1) and 12(b)(6) issues is due on March 30. City of New York v. BP p.l.c., No. 18-cv-182 (S.D.N.Y. joint letter Mar. 2, 2018; motion to dismiss and ExxonMobil motion to dismiss for lack of personal jurisdiction Feb. 23, 2018).
Lawsuit Filed Challenging Environmental Review of Florida Passenger Railroad, Including Failure to Assess Sea Level Rise Impacts
Two Florida counties, a county emergency services district, and non-profit citizens group filed a lawsuit challenging federal allocation of tax-exempt private activity bonds for Phase II of the “All Aboard Florida Project,” a proposed passenger railroad between Miami and Orlando. The plaintiffs asserted that the federal defendants did not take a hard look at the project’s environmental impacts under NEPA, including adverse environmental impacts from sea level rise. The plaintiffs also asserted that the project was not eligible for private activity bonds and that the defendants violated the Internal Revenue Code’s requirement for obtaining approval from all governmental units with jurisdiction over a project. Martin County, Florida v. U.S. Department of Transportation, No. 1:18-cv-00333 (D.D.C., filed Feb. 13, 2018).
Lawsuit Challenging Management of Lobster Fishery Said Agency Failed to Consider Fishery’s Effects Added to Baseline Affected by Climate Change and Other Factors
Conservation Law Foundation filed a lawsuit challenging the National Marine Fisheries Service’s ongoing authorization and management of the American lobster fishery for failing to prevent jeopardy and unlawful takes of North Atlantic right whales in violation of the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedure Act. The complaint alleged, among other claims, that a 2014 biological opinion concerning the effects of continued operations of the lobster fishery on endangered and threatened species, including the right whale, was arbitrary and capricious. One of the shortcomings alleged in the complaint was the biological opinion’s failure to add the fishery’s direct and indirect effects (entanglement in fishing gear was alleged to be the “single greatest threat” to right whale survival) to the environmental baseline and the cumulative effects on the species. Climate change was among the factors discussed in the environmental baseline and cumulative effects analysis as potentially having a negative influence on right whale recovery. Conservation Law Foundation v. Ross, No. 1:18-cv-00283 (D.D.C., filed Feb. 7, 2018).
Competitive Enterprise Institute Filed New FOIA Lawsuit Seeking Additional Documents Regarding International Climate Negotiations
Competitive Enterprise Institute filed a Freedom of Information Act (FOIA) lawsuit seeking to compel disclosure of records from the Department of State related to the December 2015 Paris Agreement and the Conference of the Parties to the United Nations Framework Convention on Climate Change in Bonn in November 2017 (2017 COP). The complaint mentioned four FOIA requests: one for correspondence regarding “validators,” which the complaint described as “unpaid outside voices” that promoted the Obama administration’s stance on the Paris Agreement; one for the correspondence of the State Department’s chief economist, who allegedly offered his office to colleagues for the purpose of “advancing the [Obama] administration’s climate agenda”; one for encrypted instant messages during 2017 COP; and one for correspondence relating to accommodation arrangements at the 2017 COP. Competitive Enterprise Institute v. U.S. Department of State, No. 1:18-cv-00276 (D.D.C., filed Feb. 7, 2018).
FOIA Lawsuit Filed Seeking Records Regarding Policies Put in Place After EPA Cancelled Scientists’ Participation in Climate Change Conference
Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia to compel the U.S. Environmental Protection Agency (EPA) to respond to requests for records related to actions EPA took after the agency cancelled presentations by two EPA scientists and a consultant at a conference on climate change at Narragansett Bay in Rhode Island in October 2017. In response to an inquiry from Senator Sheldon Whitehouse about the reason for the cancellations, EPA Administrator Scott Pruitt indicated that procedures had been put in place to prevent such occurrences in the future and to provide assurances that Office of Research and Development (ORD) senior leadership would make decisions about future event participation. Pruitt also said ORD would “continue to conduct research outlined in our Strategic Research Action Plans reflecting Congressional appropriations” and that he was committed to upholding EPA’s Scientific Integrity Policy. PEER’s FOIA request sought documents, records, and communications regarding the representations in Pruitt’s letter. Public Employees for Environmental Responsibility v. EPA, No. 1:18-cv-00271 (D.D.C., filed Feb. 6, 2018).
Sierra Club Asked California Federal Court to Compel Department of Interior to Disclose Officials’ External Communications
Sierra Club filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of the Interior seeking to compel a response to its September 2017 requests for documents related to external communications of six DOI officials, including the Secretary of the Interior. For these personnel, Sierra Club sought emails, text messages, faxes, voice mails, calendars, and sign-in sheets for meetings involving non-DOI persons. Sierra Club alleged that it submitted the requests “as part of its ongoing national effort to protect our public lands and promote the transition from fossil fuels to clean energy sources.” Sierra Club alleged that “[b]ecause key DOI staff involved in agency decisionmaking appear to have strong industry ties, it is critical that the public be able to understand how the agency was influenced in these matters.” Sierra Club v. U.S. Department of Interior, No. 4:18-cv-00797 (N.D. Cal., filed Feb. 6, 2018).
Environmental Groups Launched NEPA Challenges to Oil and Gas Leasing in National Petroleum Reserve–Alaska
Five environmental groups filed a lawsuit in federal court in Alaska challenging the federal decision to lease lands in the National Petroleum Reserve–Alaska. The plaintiffs asserted that the defendants violated NEPA because the U.S. Bureau of Land Management (BLM) failed to prepare either an environmental assessment or environmental impact statement before conducting an oil and gas lease sale in December 2017 for approximately 10.3 million acres in the Reserve. One of the environmental groups submitted comments to BLM prior to the sale, urging the agency not to conduct further leasing until it had completed site-specific environmental analysis by taking a hard look at direct, indirect, and cumulative impacts, including contributions to climate change. Northern Alaska Environmental Center v. U.S. Department of the Interior, No. 3:18-cv-00030 (D. Alaska, filed Feb. 2, 2018).
In a second lawsuit filed the same day, Natural Resources Defense Council, Inc. and three other environmental groups asserted that BLM failed to comply with NEPA when it held the 2017 oil and gas lease sale and also when it held a lease sale in 2016. The groups alleged, among other things, that BLM failed to consider the lease sales’ effects on greenhouse gas emissions and climate change. Natural Resources Defense Council, Inc. v. Zinke, No. 3:18-cv-00031 (D. Alaska, filed Feb. 2, 2018).
Young People Filed Lawsuit Alleging State of Washington Violated Their Rights by Creating and Supporting Fossil Fuel-Based Energy and Transportation System
Thirteen young people filed a lawsuit in Washington Superior Court alleging that the State of Washington and state agencies and officials violated Washington’s constitution and public trust doctrine through their creation, support, and operation of a “fossil-fuel based energy and transportation system.” The complaint alleged that the plaintiffs “are and will continue to be mutually and adversely impacted by excessive human-caused atmospheric carbon dioxide … concentrations.” The plaintiffs seek declaratory relief, including a declaration that a Washington statute setting greenhouse gas emission reduction targets is facially invalid because it authorizes dangerous levels of carbon dioxide in violation of the plaintiffs’ rights. The plaintiffs also request injunctive relief, including an order requiring the defendants to prepare an accounting of Washington’s greenhouse gas emissions and to develop an “enforceable state climate recovery plan.” The young people’s attorney submitted a letter to Washington’s governor inviting him to meet to discuss ways to achieve “a constitutionally-compliant Climate Recovery Plan that protects the rights of young people and future generations.” Aji P. v. State of Washington, No. 18-2-04448-1 SEA (Wash. Super. Ct., filed Feb. 16, 2018 and letter sent Feb. 16, 2018).
Conservation Groups Asked FERC to Reconsider Authorization of PennEast Pipeline Project
Two conservation groups filed a request for rehearing and motion for stay of the Federal Energy Regulatory Commission (FERC) order granting a conditional certificate of public convenience and necessity for the PennEast Pipeline Project. The project includes approximately 116 miles of natural gas pipeline extending from Pennsylvania to New Jersey, multiple lateral connections, a compressor station, and other facilities. The groups asserted that the order granting the certificate violated the Natural Gas Act, the Takings Clause, the Clean Water Act, the National Historic Preservation Act, and NEPA. With respect to the Natural Gas Act, the groups contended that FERC’s order failed to demonstrate that the project was required by the public convenience and necessity because, among other shortcomings, FERC failed to balance claimed economic benefits against potential adverse impacts, including adverse environmental impacts. The groups noted in their filing that if the pipeline would lead to a net increase in gas consumption, as claimed by the applicants, it would also enable upstream gas production (and fugitive emissions of methane) and downstream gas consumption (and combustion emissions of carbon dioxide). The groups also contended that the environmental impact statement for the project was “wholly deficient” because, among other reasons, it failed to include a robust alternatives analysis with adequate consideration of a no action alternative or clean energy or liquefied natural gas alternatives. In re PennEast Pipeline Co., No. CP15-558-000, CP15-558-001 (FERC Feb. 12, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Inter-American Court of Human Rights Recognized a Right to a Healthy Environment as a Human Right
The Inter-American Court of Human Rights issued an advisory opinion finding that the right to a healthy environment is a human right. The opinion noted that the adverse effects of environmental degradation and climate change both affect human rights. This finding suggests to some observers that the right to a healthy environment may serve as a pathway for lawsuits brought in regard to climate change-related harms. The opinion further discussed the responsibility of governments for significant environmental damage that they cause within and beyond their borders.
The Court’s advisory opinion enables all States who recognize the jurisdiction of the Court—and the citizens of those countries—to file claims regarding environmental harms that impact their human rights. In such a case, the Court would assess whether the respondent State met three types of obligations:
1. Obligations to Prevent Environmental Damages:
States must: A) issue regulations to prevent damages, B) establish contingency plans to minimize the possibility of major environmental accidents, C) mitigate significant damage that has already occurred, and D) carry out environmental impact studies under the conditions indicated by the Court. The Court requires environmental impact studies to address cumulative impacts, allow the participation of interested persons, and respect the traditions and culture of indigenous peoples. These studies must also be conducted by independent entities and occur prior to the activities that they evaluate.
2. Obligations to Cooperate:
States must: A) cooperate in good faith with States and individuals potentially affected by environmental damage, B) notify potentially affected States that a planned activity under their jurisdiction could generate a risk of significant transboundary damages and of environmental emergencies, and C) negotiate in good faith with States potentially affected by significant transboundary harm.
3. Obligations to Provide Information, Justice, and Public Participation:
States must: A) access to information related to possible effects on the environment, B) the opportunity for citizens to publicly participate in making decisions and policies that may affect the environment, and C) access to justice through national courts in regard to their environmental obligations. The Court clarified that persons potentially affected by transboundary damages must have access to justice without discrimination based on their nationality, residence, or the location of the environmental damage.
An English translation of the opinion will be added once it is available. A Request for an Advisory Opinion from the Inter-American Court of Human Rights Concerning the Interpretation of Article 1(1), 4(1) and 5(1) of the American Convention on Human Rights, OC-23/17 (Nov. 15, 2017). Commentary by the Sabin Center is available here.
Environmental and Youth Plaintiffs Appealed Oslo District Court’s Judgment that the Norwegian Government’s Licensing of Oil and Gas Extraction in the Barents Sea Is Constitutional
The Oslo District Court ruled in favor of the Norwegian Government on January 4, 2018 in a case in which two environmental NGOs sought a declaratory judgment that Norway’s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. The court recognized that Article 112 of the Constitution is a rights provision, but found that the government did not violate any relevant rights because it had fulfilled the necessary duties before making the licensing decision. The court also declared that, “[e]missions of CO2 abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112.” In its assessment of whether the government had fulfilled its duties in regard to traditional environmental harm or other climate effects, the court noted that the Storting (the Norwegian Parliament) had broadly agreed to open the southeast Barents Sea to licensing and had considered proposals to halt that licensing or review whether it was inappropriate in light of the goals of the Paris Agreement on climate change. According to the court’s decision, the involvement of the Storting could be found in itself sufficient to indicate that the duty to take measures had been fulfilled.
Greenpeace Nordic and Nature and Youth have filed an appeal of the district court’s decision. Appellants allege that “[t]he District Court erred in interpreting Article 112 in such a way that it limits the duty of the Norwegian government to guarantee the right to a healthy environment.” They argue that the court interpreted Article 112 too restrictively in reaching the determination that Norway is only responsible for the greenhouse gas emissions released within Norwegian territory. A full translation of the appeal is forthcoming and will be posted as soon as it is available. Greenpeace Nordic Association and Nature and Youth v. Ministry of Petroleum and Energy, 16-166674TVI-OTIR/06 (Oslo Dist. Ct. Jan. 4, 2018).
Colombian Youth Plaintiffs Filed Appeal to Advance Their Suit Seeking to Enforce a Right to a Healthy Environment
A lower court in Colombia ruled against the youth plaintiffs in a lawsuit in which the plaintiffs sought to enforce fundamental rights to a healthy environment which they claim are threatened by climate change and deforestation. The youth plaintiffs filed an appeal on February 16, 2018. Full summary to follow upon review of a translation of the complaint, lower court ruling, and appeal. Future Generations v. Ministry of the Environment and Others, 11001 22 03 000 2018 00319 00 (Colom. Super. Trib. appeal Feb. 16, 2018; opinion Feb. 12, 2018).