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 # 108.
FEATURED CASE
New York Federal Court Dismissed Exxon’s Lawsuit Claiming Attorney General Investigations Violated Its Constitutional Rights
The federal district court for the Southern District of New York dismissed Exxon Mobil Corporation’s action against the New York and Massachusetts attorneys general. Exxon alleged that the investigations of the attorneys general into Exxon’s climate change-related disclosures were part of a conspiracy to “silence and intimidate one side of the public policy debate on how to address climate change.” Exxon asserted that the attorneys general had violated its constitutional rights, and that the investigations were preempted, violated the dormant Commerce Clause, and constituted common law abuse of process. The court found that “Exxon’s allegations that the [attorneys general] are pursuing bad faith investigations in order to violate Exxon’s constitutional rights are implausible and therefore must be dismissed for failure to state a claim.” The court also found that Exxon had not plausibly alleged essential elements of a dormant Commerce Claim and that its preemption claim also failed. In addition, the court found that it had personal jurisdiction over the Massachusetts attorney general but that res judicata barred the claims against her, based on an ongoing proceeding in Massachusetts state court. Exxon Mobil Corp. v. Schneiderman, No. 1:17-cv-02301 (S.D.N.Y. Mar. 29, 2018).
DECISIONS AND SETTLEMENTS
Montana Federal Court Said Some Climate Change Analyses for Powder River Basin Resource Management Plans Were Inadequate
The federal district court for the District of Montana found that the U.S. Bureau of Land Management (BLM) had violated the National Environmental Policy Act when it approved Resource Management Plans (RMPs) for two field offices in the Powder River Basin. The court said BLM should have considered alternatives that would decrease the amount of extractable coal available for leasing based on climate change concerns. The court also said BLM was required to consider “the environmental consequences of the downstream combustion of the coal, oil and gas resources potentially open to development under these RMPs” and not defer such analysis until the leasing stage, and that BLM had based its assessment of methane pollution on outdated science and a scientifically inappropriate time horizon. The court deferred, however, to BLM’s assessment of cumulative greenhouse gas impacts, rejecting the plaintiffs’ assertion that BLM should have been required to use a metric such as a “global carbon budget” or “social cost of carbon protocol” as the standard for measuring cumulative climate impacts. The court also upheld BLM’s consideration of methane mitigation measures and its reliance on national ambient air quality standards in its air quality analysis. Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 4:16-cv-00021 (D. Mont. Mar. 26, 2018).
California Federal Court Remanded San Mateo, Marin, and Imperial Beach Climate Cases to State Court; Fossil Fuel Companies Filed Notice of Appeal
The federal district court for the Northern District of California remanded to state court the lawsuits brought by the Counties of San Mateo and Marin and the City of Imperial Beach against fossil fuel companies for damages arising from climate change. Citing the Supreme Court’s and Ninth Circuit’s decisions that the Clean Air Act displaced federal common law claims seeking abatement of greenhouse gas emissions (American Electric Power Co. v. Connecticut) and federal common law claims seeking damages for defendants’ contributions to climate change (Native Village of Kivalina ExxonMobil Corp.), the district court concluded that the Clean Air Act also displaced federal common law in these three cases. The court disagreed with the determination in the Oakland and San Francisco cases that federal common law could apply to the claims in these cases because the claims were materially different from the damages claims in Kivalina. The court stated: “Simply put, these cases should not have been removed to federal court on the basis of federal common law that no longer exists.” The court also rejected other bases for removal, including the doctrine of complete preemption; jurisdiction based on the presence of a specific issue of federal law that must necessarily be resolved to adjudicate state law claims (Grable jurisdiction); and specialized statutory provisions cited by the defendants (the Outer Continental Shelf Lands Act, federal officer removal, and bankruptcy removal). The court stayed the remand order for 42 days. On March 26, the defendants filed a notice of appeal and moved for a stay pending appeal. They argued that all facets of the remand order were appealable as of right because removal was based in part on the federal officer removal statute. The defendants also asserted that appellate review of the remand order was the “only avenue for immediate appellate review of these important and complex questions of federal jurisdiction” since Oakland and Francisco had elected not to seek interlocutory review of the denial of remand in their cases. County of San Mateo v. Chevron Corp., No. 17-cv-04929 (N.D. Cal. order denying remand Mar. 16, 2018; notice of appealand motion to stay Mar. 26, 2018; opposition to motion to stay Apr. 2, 2018).
Massachusetts Court Acquitted Pipeline Protesters by Reason of Necessity
The Climate Disobedience Center announced on March 27, 2018 that a Massachusetts district court had acquitted—based on a necessity defense—13 defendants arrested in 2016 while protesting the West Roxbury Lateral Pipeline. The Climate Defense Project, one of the organizations whose attorneys represented the defendants, said the defense had prepared for a full trial in which they would mount a climate necessity defense—relying on experts including climate scientist James Hansen and the founder of 350.org, Bill McKibben—but that the prosecutor had reduced charges of trespass and disorderly conduct to civil infractions that did not require a trial. The Climate Disobedience Center said the judge nevertheless allowed each defendant to testify regarding the necessity of their actions. The Center has posted the official court audio here. Massachusetts v. West Roxbury Protesters (Mass Dist. Ct. Mar. 27, 2018).
Fifth Circuit Said District Court Erred in Enjoining Construction of Bayou Bridge Pipeline
The Fifth Circuit Court of Appeals stayed a preliminary injunction barring construction work on the Bayou Bridge Pipeline, a crude oil pipeline in Louisiana. The Fifth Circuit said a stay was warranted because the pipeline developer was likely to succeed on the merits of its claim that a Louisiana federal district court abused its discretion in granting the preliminary injunction. The Fifth Circuit said the district court should have allowed the case to proceed on the merits and sought additional briefing from the U.S. Army Corps of Engineers on the “limited deficiencies” the d03/istrict court identified in the Corps’ analysis, which were related to the effectiveness of wetlands mitigation measures and cumulative impacts. One judge dissented, writing that he would have denied the developer’s emergency motion for a stay. Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, No. 18-30257 (5th Cir. Mar. 15, 2018).
Fourth Circuit Dismissed Challenge to Atlantic Coast Pipeline for Lack of Jurisdiction as FERC Considered Rehearing Request
The Fourth Circuit Court of Appeals dismissed proceedings challenging the Federal Energy Regulatory Commission’s (FERC) approval of the Atlantic Coast pipeline, a 604-mile gas pipeline extending from West Virginia to North Carolina. The court said it lacked jurisdiction to consider the appeal of the pipeline approval, for which FERC was still considering a rehearing request in which citizen groups argued, among other things, that FERC failed to adequately assess greenhouse gas emissions and climate change impacts. The Fourth Circuit also denied a motion for a stay and a separate petition for a writ staying FERC’s order. Appalachian Voices v. Federal Energy Regulatory Commission, No. 18-1114 (4th Cir. order Mar. 21, 2018); In re Appalachian Voices, No. 18-1271 (4th Cir. order Mar. 21, 2018).
Second Circuit Upheld FERC Determination That New York Department of Environmental Conservation Waived Authority to Provide Water Quality Certification for Pipeline
The Second Circuit Court of Appeals dismissed the New York State Department of Environmental Conservation’s (NYSDEC’s) appeal of FERC orders determining that NYSDEC waived its authority to provide a water quality certification under Section 401 of the Clean Water Act for a 7.8-mile natural gas pipeline that connects a new power plant to an existing interstate pipeline. The pipeline’s developer submitted its request for certification in November 2015, and NYSDEC twice requested additional information to complete the application; in August 2016, the developer submitted responses to the second request. NYSDEC denied the pipeline developer’s request for certification in August 2017, citing FERC’s failure to adequately consider greenhouse gas impacts in its environmental review. The Second Circuit agreed with FERC that Section 401 required NYSDEC to act on the request for a certification within one year of receipt of the request, and that this time limit did not apply only for “complete” applications. The Second Circuit also rejected a challenge by intervenors to FERC’s jurisdiction over the pipeline; the court said the 7.8-mile pipeline was part of an “integrated system” to transport gas in interstate commerce even though it was located entirely within New York. New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission, No. 17-3770 (2d Cir. Mar. 12, 2018).
Ninth Circuit Declined to Intervene in Young People’s Climate Change Case Against Federal Government
The Ninth Circuit Court of Appeals ruled on March 7 that the United States and other federal petitioners had not met the “high bar” for the appellate court to order a district court to dismiss the climate change lawsuit brought by 21 young people in the District of Oregon. The Ninth Circuit found that the issues raised by the petitioners—the threat of burdensome discovery and concerns regarding separation of powers—were “better addressed through the ordinary course of litigation.” The Ninth Circuit said the request for relief from potentially burdensome discovery was “entirely premature” because the district court had not issued a single discovery order and the plaintiffs had not filed a single motion to compel discovery. The Ninth Circuit also said it was “not persuaded that simply allowing the usual legal processes to go forward” would threaten the separation of powers. The opinion noted that Congress had not exempted the government from the normal rules of appellate procedure, “which anticipate that sometimes defendants will incur burdens of litigating cases that lack merit but still must wait for the normal appeals process to contest rulings against them.” In addition, the Ninth Circuit found that the conceded absence of controlling precedent weighed strongly against finding clear error in the district court’s denial of the motion to dismiss. The Ninth Circuit also said that the novelty of the issues presented did not warrant the relief sought because the denial of the motion to dismiss did not present a risk that the issues would evade appellate review. United States v. United States District Court for District of Oregon, No. 17-71692 (9th Cir. Mar. 7, 2018).
Texas Federal Court Dismissed ERISA Class Action Lawsuit Against Exxon That Alleged Breaches of Fiduciary Duties Related to Climate Disclosures
The federal district court for the Southern District of Texas dismissed a class action lawsuit alleging that Exxon Mobil Corporation (Exxon) and certain senior Exxon officials breached fiduciary duties under the Employee Retirement Income Security Act (ERISA) by making materially false and misleading statements that failed to disclose known climate change risks. The court said the plaintiffs failed to state a “duty of prudence” claim because of shortcomings in the plaintiffs’ allegations that the defendants had insider information and should have known that the market price was based on materially false or misleading information. For instance, while Exxon’s “decades-long misinformation campaign about the causes and effects of climate change should not be understated,” the amended complaint provided no basis for believing that risks posed by climate change were not incorporated into Exxon’s stock price. The court also said the plaintiffs had not alleged facts to show why the price of carbon used by Exxon was a misrepresentation or did not account for the regulatory landscape. In addition, the court found that even if there were sufficient allegations that the defendants knew the company’s hydrocarbon reserves were overvalued before they wrote them down, the plaintiffs had not plausibly alleged alternative actions the defendants could have taken to benefit the retirement funds. Fentress v. Exxon Mobil Corp., No. 4:16-cv-3484 (S.D. Tex. Mar. 30, 2018).
Alaska Federal Court Allowed Plaintiffs to Proceed with Lawsuit Challenging Reversal of Obama’s Withdrawal of Arctic Coastal Areas from Oil and Gas Leasing
The federal district court for the District of Alaska denied motions to dismiss an action challenging President Trump’s executive order reversing President Obama’s withdrawals of coastal areas in the Arctic’s Beaufort and Chukchi Seas from oil and gas leasing. The court said the doctrine of sovereign immunity did not apply because the plaintiffs asserted that President Trump acted beyond the powers delegated to him by the Outer Continental Shelf Lands Act (OCSLA) and under the Constitution. The court also concluded that plaintiffs did not need express congressional authorization to bring their claims under the OCSLA and the Constitution’s Property Clause and that restrictions on the declaratory relief that courts could issue against the president did not warrant dismissal of the entire action. In addition, the court found that the plaintiffs had adequately alleged standing and that OCSLA did not require that the action be brought in the D.C. Circuit. League of Conservation Voters v. Trump, No. 3:17-cv-00101 (D. Alaska Mar. 19, 2018).
After California Federal Court Stopped BLM from Postponing Effective Dates of Waste Prevention Rule, Wyoming Federal Court Stayed Rule’s Implementation
On April 4, 2018, the federal district court for the District of Wyoming stayed implementation of “phase-in provisions” of the U.S. Bureau of Land Management’s Waste Prevention Rule and stayed the pending actions challenging the Rule pending BLM’s finalization of a revised rule. The Waste Prevention Rule, adopted by the Obama administration in 2016, restricts the venting and flaring of methane associated with oil and gas development on public and tribal lands. In December 2017, the Wyoming federal court stayed challenges to the Rule, citing BLM’s suspension of certain effective dates and BLM’s ongoing reconsideration and review of the Rule. In February, the federal district court for the Northern District of California enjoined enforcement of BLM’s suspension of the effective dates. On March 7, the Wyoming federal court lifted its stay and ordered briefing on three pending motions: one to establish an expedited schedule for merits briefing, one to suspend implementation of certain provisions of the Waste Prevention Rule, and one to grant a preliminary injunction or vacatur of certain provisions of the rule. In its April 4 order, the Wyoming federal court noted that BLM’s proposed revisions to the Rule would substantially change the phase-in regulations that were at the “heart” of this litigation and that “[t]o force temporary compliance with those provisions makes little sense and provides minimal public benefit, while significant resources may be unnecessarily expended.” The court said that “to preserve the status quo, and in consideration of judicial economy and prudential ripeness and mootness concerns,” a stay of the phase-in provisions and the challenges to the Rule while BLM completed its rulemaking was the “most appropriate and sensible approach.” Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. order Mar. 7, 2018; clarification Mar. 12, 2018; stay order Apr. 4, 2018).
BLM Dropped Appeal of Decision Requiring Notice-and-Comment Rulemaking for Postponement of Compliance Dates
In a separate development related to the Waste Prevention Rule, BLM and other federal defendants-appellants moved to voluntarily dismiss their appeal of the October 2017 decision of the federal district court for the Northern District of California vacating BLM’s initial rule postponing certain compliance dates. The district court held that BLM had acted outside its authority to postpone the effective date of a rule and that BLM should have complied with the Administrative Procedure Act’s notice-and-comment rulemaking requirements. California v. U.S. Bureau of Land Management, No. 17-17456 (9th Cir. motion to voluntarily dismiss appeal Mar. 14, 2018).
New Mexico Supreme Court Upheld Plan to Replace Generation from Retired Coal-Fired Units with Nuclear Generation and Coal Power from Different Unit
The New Mexico Supreme Court upheld the New Mexico Public Regulation Commission’s approval of a contested stipulation allowing a utility to replace generation from two units at a coal-fired power plant that were being retired with generation from another coal-fired unit at the power plant and with generation from a nuclear plant. The court was not persuaded by the arguments of the appellant—a non-profit organization founded to “build a carbon-free energy future for our health and the environment”—that the utility had failed to consider less costly and less risky renewable resources as replacement generation and that the costs assigned to solar and wind generation facilities were inappropriate. The court said it would not second-guess a hearing examiner’s findings on these issues. New Energy Economy, Inc. v. New Mexico Public Regulation Commission, No. S-1-SC-35697 (N.M. Mar. 5, 2018).
California Appellate Court Agreed That CEQA Exemption for Parking Impacts Applied to Development Near Commuter Rail
The California Court of Appeal upheld the City of Covina’s approval of a 68-unit mixed-use infill project located a quarter-mile from a commuter rail station. The court agreed with the City that the project’s parking impacts were exempt from California Environmental Quality Act review under a statutory exemption enacted in 2013 that provided that aesthetic and parking impacts of certain types of development on infill sites in transit priority areas are not considered significant impacts on the environment. The court noted that the statutory exemption was part of a bill “to further the Legislature’s strategy of encouraging transitoriented, infill development consistent with the goal of reducing greenhouse gases.” Covina Residents for Responsible Development v. City of Covina, No. B279590 (Cal. Ct. App. Feb. 28, 2018).
New York Appellate Court Upheld Attorney General’s Withholding of Records Related to Meetings Related to Exxon Climate Change Investigation
The New York Appellate Division ruled that the New York attorney general met its burden of establishing that it had properly withheld records related to meetings with representatives of outside organizations in 2015 that concerned the attorney general’s investigation of ExxonMobil Corporation’s climate change disclosures. The appellate court upheld the attorney general’s determination that the records were exempt from disclosure under New York’s Freedom of Information Law because they were compiled for law-enforcement purposes. The court did not consider whether the documents would also be exempt as intra-agency materials. Free Market Environmental Law Clinic v. Attorney General of New York, No. 5927 (N.Y. App. Div. Mar. 8, 2018).
New York Trial Court Said Attorney General Properly Withheld Documents Related to Exxon Climate Change Investigation
A New York trial court dismissed a Freedom of Information Law (FOIL) lawsuit against the New York attorney general in which the Energy & Environment Legal Institute sought to compel disclosure of email correspondence related to the attorney general’s investigation of ExxonMobil Corporation’s public statements regarding climate change. The court concluded the attorney general had properly invoked FOIL’s statutory exemptions for disclosures that would interfere with law enforcement investigations, for inter- and intra-agency materials, and for records “specifically exempted from disclosure by state or federal statute” (in this case, attorney-client communications that contained “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making”). The court said the attorney-client exemption applied whether the attorney was a government attorney or outside counsel retained by the attorney general. Energy & Environment Legal Institute v. Attorney General of New York, No. 101678/2016 (N.Y. Sup. Ct. Mar. 8, 2018).
NEW CASES, MOTIONS, AND NOTICES
Manufacturers of HFC Substitutes Granted Extension for Filing of Certiorari Petition
On March 8, 2018, Chief Justice John Roberts granted an application by Honeywell International Inc. and The Chemours Company FC, LLC for a 60-day extension of time (until June 25) within which to file a petition for a writ of certiorari seeking review of the D.C. Circuit ruling that partially struck down the U.S. Environmental Protection Agency’s (EPA’s) regulation that barred uses of certain hydrofluorocarbons that contribute to climate change. Honeywell and Chemours said they had “invested heavily to invent new substitutes for ozone-depleting substances; these new substitutes have a dramatically lower global warming potential than HFCs.” Honeywell International Inc. v. Mexichem Fluor Inc., No. 17A933 (U.S. application filed Mar. 5, 2018 and application granted Mar. 8, 2018).
Fossil Fuel Companies Asked Federal Court to Dismiss Oakland and San Francisco Climate Change Nuisance Lawsuits; Cities Amended Complaints; Court Held Climate Change Tutorial, Accepted Timely Amicus Contributions
On the eve of a climate change tutorial requested by a federal judge in California, fossil fuel companies filed motions to dismiss the nuisance lawsuits brought by San Francisco and Oakland. The five named defendants joined in a motion to dismiss for failure to state a claim. First, they argued that Congress had displaced federal common law claims based on domestic activities, whether those activities involved combustion of fossil fuels (in which case the Clean Air Act displaced federal common law) or production and promotion of fossil fuels (in which case “many federal statutes … expressly regulate (and, in fact, encourage) such conduct”). The defendants also argued that federal common law principles would not support recognition of a claim based on the defendants’ foreign activities. Second, the fossil fuel companies argued that elements of a federal common law claim for public nuisance were absent. The defendants also argued that damages would violate the defendants’ due process and First Amendment rights. Finally, the defendants asserted that judicial relief would violate separation of powers by invading the executive branch’s authority to conduct foreign affairs and legislative authority to regulate interstate and foreign commerce. Four of the defendants filed separate motions to dismiss on personal jurisdiction grounds, arguing that the court could not exercise either general jurisdiction over the companies—two of which were non-U.S. companies and two of which were headquartered in Texas and incorporated in other states (one in New Jersey, one in Delaware)—or specific jurisdiction based on the companies’ alleged activities in and contacts with California.
On March 27, the court issued a notice directing the parties to address four issues in the remainder of the briefing on the motion to dismiss for failure to state a claim: (1) all state and federal court decisions sustaining and rejecting a nuisance theory of liability “based on the otherwise lawful sale of a product where the seller financed and/or sponsored research or advertising intended to cast doubt on studies showing that use of the product would harm public health or the environment at large”; (2) all state and federal court decisions addressing a nuisance theory of liability in the context of global warming; (3) the extent to which the Noerr-Pennington doctrine (pursuant to which antitrust violations cannot be predicated on attempts to influence public officials or the passage or enforcement of laws) may apply; and (4) if the plaintiffs’ theory of liability based on questioning or sponsoring research to question global warming science is correct, why everyone involved in supplying carbon-based fuels or otherwise involved in increasing carbon dioxide would not be liable if they questioned the science or sponsored research intending to question it.
On March 30, the plaintiffs filed a notice that they would amend their complaint, and on April 3 they filed the first amended complaint, which asserts nuisance claims under both federal and California law. The court has deemed the earlier motions to dismiss withdrawn, and new motions to dismiss are due on April 19. Briefing on the motions to dismiss is to be completed by May 10, and a hearing was scheduled for May 24.
Other developments in the Oakland and San Francisco public nuisance cases included the climate tutorial convened by Judge William Alsup on March 21. Two weeks before the tutorial, Judge Alsup provided the parties with a list of “Some Questions for the Tutorial.” Several scientists presented on behalf of the plaintiffs. An attorney for Chevron Corporation, the only defendant that did not contest personal jurisdiction, presented on behalf of the defendants. After the tutorial, the court issued a notice directing the other four defendants to “submit a statement explaining any disagreements with the statements” of Chevron’s counsel at the tutorial. Chevron’s presentation at the tutorial is available here. The cities’ materials are available at the following links: curricula vitae, presentation on answers to Judge Alsup’s questions, presentation on “Understanding how carbon dioxide emissions from human activity contribute to global climate change,” presentation on Fourth National Climate Assessment, presentation on sea level rise, and presentation on history of climate change.
The court accepted two sets of amicus materials that it received before the tutorial. One was an amicus brief submitted by individuals who described themselves as “an international team of scientific researchers concerned that scientific questions should be answered scientifically, rationally, dispassionately and logically, who have been investigating climate change for up to 12 years, and have intensively studied the question how much global warming we may cause.” The second amicus material accepted by the court was a presentation submitted by three professors, William Happer, Steven E. Koonin, and Richard S. Lindzen. The court denied a third amicus motion by the Concerned Household Electricity Consumers Council because the motion was submitted after the start of the tutorial and the parties did not have an opportunity to address it. People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal.).
Department of Energy and Trade Association Appealed and Sought Stay of Court Order Requiring Publication of Energy Conservation Standards
The U.S. Department of Energy (DOE) and the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) appealed a California federal court’s February order requiring DOE to publish final energy conservation standards for for portable air conditioners, air compressors, commercial packaged boilers, and uninterruptible power supplies. DOE and AHRI also asked the district court to stay the order pending appeal, arguing that manufacturers would be harmed by having to incur costs to comply with the standards, and that temporarily delaying the regulations would cause the plaintiffs minimal harm. The plaintiffs—environmental and consumer groups and states—argued that delaying the emissions reductions that would result from the implementation of the standards would harm the plaintiffs and the public. The district court denied the stay motions on March 13 (DOE) and March 30 (AHRI). DOE must submit the regulations for publication by April 10. Emergency motions by DOE and AHRI for a stay are currently pending in the Ninth Circuit. Natural Resources Defense Council, Inc. v. Perry, Nos. 3:17-cv-03404, 3:17-cv-03406 (N.D. Cal.), Nos. 18-15380 & 18-15475 (9th Cir.).
FERC Reauthorized Southeast Market Pipelines Project After D.C. Circuit Allowed FERC More Time to Complete Review on Remand
After denying rehearing of its decision ordering additional environmental review of greenhouse gas emissions associated with the Southeast Market Pipelines Project, the D.C. Circuit on March 7 granted FERC’s motion to stay issuance of the mandate. The D.C. Circuit ordered that the mandate be withheld through March 26, 2018. The D.C. Circuit denied the pipeline developer’s motion for a longer stay. On March 14, FERC issued an order reinstating the certificate of public convenience and necessity for the project. FERC said its quantification of downstream greenhouse gas emissions did not alter its conclusion that the project was an environmentally acceptable action. FERC’s supplemental environmental impact statement concluded that there was no way to determine the significance of the project’s emissions using either the social cost of carbon tool—which FERC said was “not useful in determining whether, and under what conditions, to authorize a proposed natural gas transportation project”—or other methodologies. Two FERC commissioners dissented: one commissioner agreed that the project was in the public interest but said FERC needs to “more squarely address” greenhouse gas emissions and the social cost of carbon; the other dissenting commissioner said that FERC’s order on remand failed to provide a “reasoned answer” to the inquiries required by the D.C. Circuit’s August 2017 decision. On March 23, FERC informed the D.C. Circuit that it had issued its order on remand. Sierra Club v. Federal Energy Regulatory Commission, No. 16-1329 (D.C. Cir. Mar. 7, 2018).
FOIA Action Filed Seeking Communications Between EPA and Heartland Institute
Southern Environmental Law Center and Environmental Defense Fund filed a filed a Freedom of Information Act (FOIA) action against the U.S. Environmental Protection Agency (EPA) for allegedly failing to respond to requests for EPA’s communications with the Heartland Institute, a non-profit think tank “with the self-described aim of promoting ‘free-market solutions to social and economic problems.’” The complaint alleged that Heartland had recommended that the Trump administration take a number of actions to halt or reverse climate change initiatives and that EPA had reached out to Heartland for help identifying scientists to participate in a potential “red team/blue team” exercise to review climate science. The plaintiffs said reports of the correspondence between EPA and Heartland about the red team/blue team exercise had “surfaced through unofficial channels,” but that “the public remains in the dark about the extent of those communications and any other topics that may have been addressed.” Southern Environmental Law Center v. EPA, No. 3:18-cv-00018 (W.D. Va., filed Mar. 15, 2018).
Center for Biological Diversity Sought Records Regarding Status of U.S. Climate Action Report
The Center for Biological Diversity (CBD) filed a Freedom of Information Act lawsuit against the U.S. Department of State to compel a response to CBD’s request for records regarding the preparation and production of the “overdue” seventh U.S. Climate Action Report. CBD alleged the U.S. was required to submit the report to the secretariat of the United Nations Framework Convention on Climate Change by January 1, 2018. On February 1, CBD submitted a FOIA request seeking a number of categories of records related to the delay and to the content and status of the report. Center for Biological Diversity v. U.S. Department of State, No. 1:18-cv-00563 (D.D.C., filed Mar. 13, 2018).
Center for Biological Diversity Challenged Decision Not to List Pacific Walrus as Endangered or Threatened
The Center for Biological Diversity filed a lawsuit in federal district court for the District of Alaska asserting that the U.S. Fish and Wildlife’s decision not to list the Pacific walrus as a threatened or endangered species violated the Endangered Species Act. CBD alleged that best available science showed that massive loss of sea ice habitat due to climate change threatened the species’s continued existence and was already having negative effects on the animals. CBD asserted five claims for relief under the Endangered Species Act and Administrative Procedure Act: failure to explain a change in position from the Service’s 2011 conclusion that the Pacific walrus warranted protection; improper “foreseeable future” analysis based on the year 2060 when best available science provided projections of sea ice loss through 2100; failure to consider best available scientific data and reaching conclusions contrary to such data; improper and inconsistent treatment of scientific uncertainty; and failure to conduct a proper listing analysis. Center for Biological Diversity v. Zinke, No. 3:18-cv-00064 (D. Alaska, filed Mar. 8, 2018).
Arizona Board of Regents Gave Notice That It Would Appeal Trial Court Decisions Ordering Disclosure of Climate Scientists’ Emails
The Arizona Board of Regents filed notice that it would appeal trial court decisions requiring disclosure of emails of two climate scientists at the University of Arizona pursuant to Arizona’s public records law. This appeal will be the third time the case has reached the Arizona Court of Appeals. In the first appeal, the appellate court said the trial court applied the wrong standard of review when it upheld the withholding of the emails. After the trial court ordered production of the emails on remand, the appellate court said in the second appeal that the trial court’s ruling failed to account for various exemptions from disclosure in the public records law. Energy & Environment Legal Institute v. Arizona Board of Regents, No. C2013-4963 (Ariz. Super. Ct. Mar. 27, 2018).
Environmental Groups Challenged New San Diego County Climate Action Plan
Sierra Club and other organizations commenced challenges to a revised Climate Action Plan adopted by San Diego County in 2018. In one case, Sierra Club filed a third amended petition asserting that the County had failed to comply with earlier judicial directives requiring, among other things, that the Climate Action Plan contain enforceable measures to reduce greenhouse gas emissions. Sierra Club and six other groups also filed a new lawsuit seeking to set aside certain portions of the revised Climate Action Plan and the supplemental environmental impact report on which it was based, and also to set aside a threshold of significance established by the County that the petitioners alleged would allow development not contemplated by a 2011 General Plan Update, so long as developers obtained offsets, which could be obtained out of state or even outside of the country. In the new lawsuit, the petitioners asserted that this “offshoring of GHG emissions offsets” had been done without proper review under the California Environmental Quality Act. Sierra Club v. County of San Diego, No. 37-2012-00101054-CU-TT-CTL (Cal. Super. Ct. third supplemental petition for writ of mandate Mar. 16, 2018); Sierra Club v. County of San Diego, No. __ (Cal. Super. Ct., filed Mar. 16, 2018).
ExxonMobil Argued That California Municipalities and Officials Would Be Subject to Texas Court’s Personal Jurisdiction
Exxon Mobil Corporation (ExxonMobil) argued to a Texas state court that it should deny special appearances filed by potential defendants and witnesses in ExxonMobil’s possible lawsuit against California cities and counties that have filed lawsuits seeking to hold ExxonMobil and other fossil fuel companies liable for climate change damages. The potential defendants in ExxonMobil’s threatened lawsuit also include officials and lawyers for the California cities and counties. ExxonMobil argued to the court that if it brought its lawsuit alleging constitutional violations, abuse of process, and civil conspiracy, the defendants would be subject to the court’s personal jurisdiction because they had committed intentional torts in Texas. In re Exxon Mobil Corp., No. 096-297222-18 (Tex. Dist. Ct. Mar. 1, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Republic of the Philippines Commission on Human Rights Held Public Hearings to Investigate Major Fossil Fuel Companies
In March 2018, the Republic of the Philippines Commission on Human Rights held its first public hearings to investigate the alleged responsibility of major fossil fuel companies or “carbon majors” for climate change and the potential impacts on the human rights of Filipinos. Greenpeace Southeast Asia and numerous other organizations and individuals filed a petition in 2015 asking the Commission to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” In re Greenpeace Southeast Asia and Others, No. CHR-NI-2016-0001 (Phil. Comm’n on Human Rights).
Austrian Administrative Court Approved Third Runway Despite Climate Change Considerations
In 2017, the Austrian Federal Administrative Court overturned the government of Lower Austria’s approval of construction of a third runway at Vienna’s main airport. Subsequently, in June 2017, the Austrian Constitutional Court overturned the Federal Administrative Court’s decision, citing multiple errors that led the lower court to improperly give weight to climate change and land use considerations in the balancing test it used to consider the public’s interest in a third runway. In March 2018, the Administrative Court issued a new decision that approved construction of the third runway. In re Vienna-Schwechat Airport Expansion, W109 2000179-1/291E (Austria Admin. Ct.).
Second Permission Hearing Set in Legal Action Alleging UK Government Violated Climate Change Act 2008 by Failing to Revise Targets
In February 2018, a judge of the Queen’s Bench Division, Administrative Court, denied an application for judicial review of the UK government’s alleged violation of the Climate Change Act 2008 for failure to revise its 2050 carbon emissions reduction target in light of the Paris Agreement and the latest science. The judge said none of the five grounds raised by the claimants met the permission threshold. Later in February, the claimants renewed their application for review. On March 20, 2018, a permission hearing took place at the Royal Courts of Justice in the Strand to determine if the case was strong enough to merit a full hearing. The hearing was adjourned after the judge decided that the complexity of the issues would require a full-day permission hearing. The judge also requested a more detailed statement from the Committee on Climate Change, an independent statutory body established under the Climate Change Act 2008. The Committee is an interested party in the litigation. Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy, Claim No. CO/16/2018 (Q.B. Admin. Ct.).
