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 # 109.
Federal Circuit Reversed Ruling That Held U.S. Liable for Louisiana Flood Damage
The Federal Circuit Court of Appeals reversed the Federal Court of Claims finding that the federal government was liable for flood damage in St. Bernard Parish and New Orleans that was caused by Hurricane Katrina and other hurricanes. The plaintiffs, who were property owners in St. Bernard Parish and the Lower Ninth Ward of New Orleans, contended that the government was liable for a taking based on its inaction, including the failure to properly maintain or modify the Mississippi River-Gulf Outlet (MRGO), and its actions, including the construction and operation of the MRGO channel. The Federal Circuit held that the government cannot be liable for inaction on a takings theory and that the construction and operation of MRGO had not been shown to be the cause of the flooding. The court found that the plaintiffs and the Court of Claims had not applied the correct legal standard to the causation analysis, which was required to “account for government flood control projects that reduced the risk of flooding.” The court said the plaintiffs failed to present evidence comparing the flood damage that occurred to what would have occurred had there been no government action at all and so had failed to take account of actions—including a system of levees and floodwalls known as the Lake Pontchartrain and Vicinity Hurricane Protection Project—that mitigated the MRGO impact. St. Bernard Parish Government v. United States, No. 2016-2301, 2016-2373 (Fed. Cir. Apr. 20, 2018).
DECISIONS AND SETTLEMENTS
Second Circuit Vacated Rule Delaying Increased Penalties for Violations of Fuel Efficiency Standards
In a one-page order, the Second Circuit Court of Appeals granted petitions from environmental groups and five states challenging the Trump administration’s rule delaying the effective date for regulations that increase penalties for violations of vehicle fuel efficiency standards. The court vacated the delay rule and indicated that an opinion would follow “in due course.” Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, Nos. 17-2780, 17-2806 (2d Cir. Apr. 23, 2018).
Ninth Circuit Stayed District Court Order Requiring Publication of Energy Conservation Rules
On April 11, 2018, the Ninth Circuit Court of Appeals granted emergency motions to stay a district court order requiring the U.S. Department of Energy (DOE) to publish final energy conservation rules for portable air conditioners, air compressors, commercial packaged boilers, and uninterruptible power supplies in the Federal Register. DOE and the Air-Conditioning, Heating, & Refrigeration Institute filed the appeals of the district court order, which held that DOE had a non-discretionary duty under the Energy Policy and Conservation Act to publish the standards, which DOE adopted in December 2016. The Ninth Circuit also sua sponte expedited the proceedings in the appeals. Natural Resources Defense Council, Inc. v. Perry, Nos. 18-15380, 18-15475 (9th Cir. Apr. 11, 2018).
In Partial Reversal, New Mexico Federal Court Rejected Challenges to Drilling Permits
On April 23, 2018, the federal district court for the District of New Mexico dismissed all claims in a lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) approval of more than 300 applications for permit to drill (APDs) wells in the Mancos Shale in the San Juan Basin. The court found that that BLM had not violated either the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA). (The NHPA holding reversed the court’s initial conclusion in a March 31 order that BLM had violated NHPA for some wells for which the areas of potential effect contained historic sites.) With respect to NEPA, the court found that BLM had “properly tiered” its environmental assessments (EAs) for the APDs to a resource management plan and environmental impact statement from 2003 and had determined that new developments since 2003 in horizontal drilling and fracking technology would not have significant environmental effects. The court noted, for instance, that an EA had indicated that carbon dioxide emissions from a horizontal well would represent only a 0.0008% increase in New Mexico carbon dioxide emissions. Diné Citizens Against Ruining Our Environment v. Zinke, No. 1:15-cv-00209 (D.N.M. Apr. 23, 2018).
In Challenges to Keystone Pipeline Permit, Montana Federal Court Ordered Federal Defendants to Search for More Documents for Administrative Record
On April 16, 2018, the federal district court for the District of Montana ordered the federal defendants to complete the administrative record or provide a privilege log in pending challenges to the presidential permit granted in March 2017 for the Keystone XL Pipeline. The court found that the plaintiffs had rebutted the presumption of completeness of the administrative record by pointing to specific documents that were missing and that the federal defendants’ failure to provide the whole record also was evidenced by their earlier supplementation of the record after the court required that they produce documents or prepare a privilege log for documents dated from January 26, 2017 to March 23, 2017. In addition, the court rejected the defendants’ argument that internal agency communications and drafts could not comprise part of the administrative record. Recognizing the burden imposed on the defendants, the court required the plaintiffs to provide a “reasonable list” of no more than 50 search terms to narrow the scope of inquiry. The parties also agreed that the date range for the additional document production would be limited to May 2012 to November 2015. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. Apr. 16, 2018).
California Federal Court Granted Fossil Fuel Companies’ Motion to Stay Order Remanding Counties’ and City’s Climate Case to State Court
The federal district court for the Northern District of California granted the defendants’ motion to stay its remand orders pending appeal in the climate change lawsuits brought by the Counties of San Mateo and Marin and the City of Imperial Beach against a number of fossil fuel companies. The court also certified for interlocutory appeal all issues addressed in the remand order. County of San Mateo v. Chevron Corp., No. 3:17-cv-04929 (N.D. Cal. Apr. 9, 2018).
Massachusetts High Court Ruled That Exxon Must Comply with Attorney General’s Climate Change Investigation
The Massachusetts Supreme Judicial Court affirmed a Superior Court order denying ExxonMobil Corporation’s (Exxon’s) motion to bar the Massachusetts attorney general from pursuing her investigation of whether Exxon’s marketing or sale of its fossil fuel products violated the Massachusetts consumer protection law. The Supreme Judicial Court held that Exxon was subject to personal jurisdiction in Massachusetts. The court also rejected Exxon’s argument that the civil investigative demand (CID) was “overbroad and unduly burdensome” or that it was “arbitrary and capricious” because it was issued “solely as a pretext.” In addition, the court concluded that disqualification of the attorney general’s office was not necessitated by her participation in the “AGs United for Clean Power” press conference and found that the Superior Court had not abused its discretion by denying a stay pending the resolution of Exxon’s federal lawsuit against the attorney general. The Supreme Judicial Court also affirmed the order granting the attorney general’s cross motion to compel Exxon’s compliance with the CID. Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).
Divided Minnesota Appellate Court Dismissed State’s Appeal of Trial Court Decision Allowing “Valve Turners” to Present Necessity Defense
In a split decision, the Minnesota Court of Appeals dismissed the State of Minnesota’s appeal of a trial court decision allowing defendants who participated in a “valve turner” protest to present a necessity defense. Two defendants who used bolt-cutters to enter an oil pipeline valve station and to cut a chain securing a valve device and one defendant who filmed the activities were charged with felony criminal damage to property, aiding and abetting felony criminal damage to property, gross misdemeanor trespassing, and aiding and abetting gross misdemeanor trespassing, A fourth defendant who accompanied the other three defendants and contacted the pipeline operator to notify it of their actions was charged with conspiracy to commit felony criminal damage to property and aiding and abetting felony criminal damage to property. The appellate court said the State had not made the necessary showing that the trial court’s ruling would have a critical impact on the prosecutors’ case “in the absence of other yet-unmade rulings” regarding what testimony and evidence would be permitted, what objections the State would make, and what the trial court’s rulings would be. One judge dissented, saying that permitting any evidence regarding global warming and the defendants’ belief that the federal government’s response to global warming had been ineffective “would have a critical impact on the outcome of the trial.” The dissenting judge also wrote that the evidence the defendants wished to present did not relate to the necessity defense as interpreted under Minnesota law because the defendants could not establish the three essential elements of the defense: that there was no legal alternative to their actions, that the harm was imminent, and that there was a direct, causal connection between their actions and the prevention of global warming. State v. Klapstein, Nos. A17-1649, A17-1650, A17-1651, A17-1652 (Minn. Ct. App. Apr. 23, 2018).
Washington State Court Issued Written Decision Allowing Protestor to Present Necessity Defense
On March 13, 2018, a Washington District Court issued its written findings of fact and conclusions of law allowing a defendant who participated in a protest blocking a freight train to protest the transport of coal and oil to present a necessity defense at his trial. The defendant testified that he believed his actions were “acts of civil disobedience” that he believed “were necessary to avoid or minimize the imminent danger to the Earth due to climate change and the serious and imminent risk of danger to safety of Spokane citizens in the downtown area where [the rail company] transports volatile oil.” Three expert witnesses testified or submitted a declaration on the defendant’s behalf—a lead author of the Intergovernmental Panel on Climate Change Fourth Assessment, a professor of conflict resolution who teaches courses on nonviolent civil resistance, and a “recognized international analyst in nuclear waste storage and transportation and industrial chemical use, transportation and accident prevention, and emergency planning and homeland security.” The court concluded that the defendant satisfied his burden of proof with respect to the necessity defense’s four prongs: he “believed that his actions were necessary to avoid or minimize the immediate harms of global change to the Earth”; he presented evidence that the harm sought to be avoided was greater than the harm he and other protestors created; he did not bring about the harm he sought to prevent; and he believed he had exhausted all legal alternatives and that no other reasonable alternative existed. State v. Taylor, No. 6Z0117975 (Wash. Dist. Ct. Mar. 13, 2018).
Montana Court Sentenced “Valve Turner” to Deferred Imprisonment
On March 22, Climate Defense Project announced that its client Leonard Higgins had been sentenced two days earlier by a Montana court to three years deferred imprisonment for participating in the coordinated “valve turner” protests in 2016. The court also ordered Higgins to pay $3,755.47 in restitution, less than the $25,630 requested by the pipeline company for costs incurred in responding to the protest. CDP also said it was pursuing an appeal of the court’s denial of Higgins’s request to present a necessity defense. State v. Higgins, No. DC-16-18 (Mont. Dist. Ct. Mar. 20, 2018).
NEW CASES, MOTIONS, AND NOTICES
Amended Complaint with New Standing Allegations Filed to Challenge Trump “Two-for-One” Order
After the federal district court for the District of Columbia ruled that it lacked jurisdiction to hear a challenge to President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs” because the plaintiffs did not have standing, the plaintiffs sought leave to file an amended complaint. The court granted the plaintiffs’ motion on April 20. The plaintiffs asserted, among other things, that the new complaint’s allegations and supporting declarations regarding the Department of Energy’s failure to establish new energy-efficiency standards demonstrated the standing of two of the plaintiffs. The defendants did not oppose the motion, stating that while they believed the motion could be denied as futile under Rule 15, “given the important issues presented in this litigation, and in the interests of efficiency,” the issue of standing should be resolved through a Rule 12 motion to dismiss. The defendants must file their motion to dismiss by May 14. Public Citizen, Inc. v. Trump, No. 1:17-cv-00253 (D.D.C. motion for leave to amend Apr. 2, 2018).
Environmental Groups, California, and New Mexico Unsuccessfully Sought to Lift Stay on Waste Prevention Rule Requirements in Wyoming District Court, Tenth Circuit Stay Requests Still Pending—Meanwhile BLM Appealed to Ninth Circuit to Reverse Injunction Barring Delaying of Rule’s Requirements
Environmental groups and two states (California and New Mexico) that intervened on behalf of the federal respondents to defend the U.S. Bureau of Land Management’s Waste Prevention Rule appealed a Wyoming federal district court’s order staying implementation of the rule’s “phase-in provisions.” They moved in the Tenth Circuit for a stay pending appeal and also asked the district court to stay its order pending appeal; they argued that their members and citizens would suffer irreparable harm “from the irreversible loss of publicly-owned natural gas and associated emissions of harmful air pollution” and that the court was without authority to enjoin the regulations without having determined that the rule’s challengers had met the four prerequisites for a preliminary injunction. Two states (Wyoming and Montana) and industry groups challenging the rule, as well as the federal respondents, opposed the motion for stay pending appeal. In addition, Wyoming and Montana moved in the Tenth Circuit to dismiss the appeals of the stay order on the grounds that the district court’s order was not reviewable. On April 30, the district court denied the motion for a stay pending appeal. The court found that the intervenors were unlikely to succeed on the merits of their appeal because the court had acted within the “broad discretionary authority” conferred by Section 705 of the Administrative Procedure Act “upon a reviewing court to preserve the status quo where irreparable injury would otherwise result.” The court also found that the intervenors had overstated the harm that would result from the stay of the Waste Prevention Rule’s phase-in provisions and that the public interest was best served by a stay of those requirements. Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo.); 18-8027, 18-8029 (10th Cir.).
In a related case in which a California federal court granted motions in February for a preliminary injunction barring BLM from enforcing its rule delaying provisions of the Waste Prevention Rule, the federal respondents filed an appeal in the Ninth Circuit on April 23. California v. U.S. Bureau of Land Management, No. 3:17-cv-07186 (N.D. Cal.); No. 18-15711 (9th Cir.).
Environmental Groups Challenged NEPA Compliance for Oil and Gas Lease Auctions in Western Colorado
Five environmental groups filed a lawsuit in the federal district court for the District of Colorado challenging the U.S. Bureau of Land Management’s (BLM’s) approval of 53 oil and gas lease parcels on public lands in the Upper Colorado River Basin in western Colorado. The plaintiffs alleged that BLM failed to adequately consider and disclose environmental impacts, including climate impacts, and had therefore failed to comply with the National Environmental Policy Act (NEPA). The alleged shortcomings in the environmental review included an alleged failure to take a hard look at direct, indirect, and cumulative greenhouse gas emissions that would result from lease auctions; the plaintiffs said there was no analysis of any site-specific greenhouse gas emissions or their climate change effects, and that the resource management plans and environmental impact statements (RMP-EIS) on which determinations of NEPA adequacy were based also failed to sufficiently analyze such impacts. The complaint also asserted that the RMP-EISs relied on outdated science with respect to methane’s global warming potential, which resulted in understating the magnitude of impacts, and that the RMP-EISs failed to analyze whether opening new sources of emissions was consistent with global, U.S., regional, and state carbon budgets. Wilderness Workshop v. U.S. Bureau of Land Management, No. 1:18-cv-00987 (D. Colo., filed Apr. 26, 2018).
Exxon Filed Notice of Appeal of Dismissal of Lawsuit Against New York and Massachusetts Attorneys General
Exxon Mobil Corporation (Exxon) filed a notice of appeal on April 20, 2018, three weeks after the federal district court for the Southern District of New York dismissed the company’s lawsuit seeking to bar the New York and Massachusetts attorneys general from pursuing their investigations of Exxon’s climate change-related disclosures. Exxon Mobil Corporation v. Schneiderman, No. 1:17-cv-02301 (S.D.N.Y. Apr. 20, 2018).
Sierra Club Sued EPA to Compel Disclosure of Communications of New Hires with EPA Administrator and External Parties
Sierra Club filed a Freedom of Information Act lawsuit against the U.S. Environmental Protection Agency (EPA) to compel it to respond to four requests for agency records submitted between June 2017 and January 2018. Sierra Club said the requests were for communications between seven new employees in the Office of the Administrator and EPA Administrator Scott Pruitt or third parties and were in connection with four “troubling practices,” including “[i]nappropriate and possibly illegal use of EPA staff time to covertly lobby for the United States’ withdrawal from the Paris Climate Agreement and other policy changes” and “[p]olitically motivated changes to factual information about climate change on EPA’s website.” Sierra Club alleged that each of the seven new hires “lacks prior experience or expertise in environmental protection and instead has a strong connection with anti-EPA organizations, companies, or politicians.” Sierra Club v. EPA, No. 3:18-cv-02372 (N.D. Cal., filed Apr. 19, 2018).
Colorado Local Governments Sued Fossil Fuel Companies for Climate Change Damages
Three Colorado local government entities—the City of Boulder and the Boards of County Commissioners of Boulder and San Miguel Counties—filed a lawsuit against fossil fuel companies seeking damages and other relief for the companies’ role in causing climate change. The local governments alleged they already had suffered and incurred expenses to respond to climate change-related harms stemming from increased and more serious heat waves, wildfires, droughts, and floods, and that these harms would worsen over time. They asserted that the defendants—Exxon Mobil Corporation and affiliates of Suncor Energy Inc.—“knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.” The plaintiffs asserted causes of action for public nuisance, private nuisance, trespass, and unjust enrichment, as well as a claim of deceptive trade practices under the Colorado Consumer Protection Act. They asked the court to award them monetary relief as compensation for their past and future damages and for costs to mitigate climate change’s impacts and also sought remediation or abatement of the hazards by “practical means,” though the complaint expressly disclaimed requests to enjoin oil and gas operations or sales, to enforce emissions controls, relief related to injuries on federal lands, or relief based on defendants’ lobbying activities. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV030349 (Colo. Dist. Ct., filed Apr. 17, 2018).
Eight Young Floridians Filed Climate Change Lawsuit Against State of Florida
Eight Florida residents, all age 19 or younger, filed a lawsuit in Florida state court alleging that the State of Florida, the Florida governor, and other state officials and agencies violated their fundamental rights to a stable climate system under Florida common law and the Florida constitution. The complaint asserted that the defendants’ “contributions to climate change and creation and operation of a fossil fuel-based energy system have caused widespread harm to the Plaintiffs and the natural resources in Florida.” The plaintiffs claimed that the defendants had breached their fiduciary duty to protect Florida’s public trust resources and asserted that defendants had such a duty under a common law public trust doctrine explicitly codified in the Florida constitution. The plaintiffs also asserted that their substantive due process rights under the Florida constitution had been violated. The plaintiffs seek declaratory relief as well as orders requiring the defendants to prepare a consumption-based inventory of Florida’s greenhouse gas emissions and to “prepare and implement an enforceable comprehensive statewide remedial plan, including specific dates and benchmark targets, to phase out fossil fuel use and draw down excess atmospheric CO2 through forest and soil protection.” Reynolds v. Florida, No. 37 2018 CA 000819 (Fla. Cir. Ct., filed Apr. 16, 2018).
Trial Set to Begin on October 29 in Young People’s Climate Change Lawsuit Against Federal Government
At a status conference on April 12, 2018, the federal district court for the District of Oregon set October 29, 2018 as the date for a trial to begin in the climate change lawsuit brought by young people against the federal government. The court also set deadlines for the disclosure of the defendants’ expert witnesses (July 12), exchange of defendants’ expert witness statements (August 13), and exchange of rebuttal expert witness statements (September 12). Juliana v. United States, No. 6:15-cv-1517 (D. Or. Apr. 12, 2018).
Fossil Fuel Companies Sought to Dismiss Oakland and San Francisco Amended Complaints; Hearing Scheduled for May 24
On April 19, 2018, the fossil fuel company defendants in Oakland and San Francisco’s public nuisance climate change lawsuits moved to dismiss the plaintiffs’ amended complaints. All of the defendants joined in a motion to dismiss for failure to state a claim, in which they reiterated arguments from their March 20 motion to dismiss the original complaint: that federal common law claims were either displaced by federal statutes or were “plainly improper”; that the plaintiffs failed to allege the elements of a nuisance claim; and that even if the plaintiffs pleaded a viable claim, judicial resolution would be inappropriate because it would violate separation of powers. Each defendant other than Chevron Corporation (Chevron) also filed a new motion to dismiss for lack of personal jurisdiction, and Royal Dutch Shell plc (Shell) again also sought dismissal on the basis of insufficient service of process. The defendants addressed four questions that the court on March 27 had requested be addressed in the briefing on the motion to dismiss. They said they were aware of no cases sustaining a nuisance theory of liability based on the otherwise lawful sale of a product where the seller finance or sponsored research or advertising intended to cast doubt on studies showing that use of the product was harmful. They also told the court that “no global-warming-based nuisance claim has ever made it past the pleadings,” argued that the plaintiffs sought to hold them liable for speech “plainly immunized” by the Noerr-Pennington doctrine, and asserted that the plaintiffs’ “expansive theory of liability has no limiting principle.” The plaintiffs’ response to the motions to dismiss is due by May 3, and defendants’ replies are due by May 10. If the United States wishes to submit an amicus brief, it must also do so by May 10. On April 19, the court received an amicus motion on behalf of 15 states, led by Indiana, that argued that “[t]o permit federal adjudication of claims for abatement fund remedies would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” The states argued that the plaintiffs’ claims were non-justiciable political questions that jeopardized cooperative federalism and that the case could constitute extraterritorial regulation in violation of the dormant Commerce Clause. They also echoed the argument that federal statutes displaced common law claims. A hearing on the motions to dismiss is scheduled for May 24. On April 24, the court asked the parties to address the applicability of the Supreme Court’s decision on that day in Jesner v. Arab Bank, PLC. The Court held foreign corporations could not be defendants under the Alien Tort Statute.
On April 4, 2018, the four fossil fuel companies that did not participate in the climate change tutorial before the court on March 21 submitted their responses to the court’s order requiring them to submit statements explaining any disagreements with the presentation made by counsel for Chevron. Exxon Mobil Corporation set forth a seven-point list of statements regarding climate change risk, the contribution of human activities to greenhouse gas emissions, and the Intergovernmental Panel on Climate Change (IPCC)—and stated its position that the statements were not judicial admissions. ExxonMobil called the IPCC’s reports “a reference point for understanding how scientific knowledge and confidence have evolved over the past 30 years and contain a wide range of data and potential outcomes” but that it did not adopt every statement made in the IPCC reports. Exxon also said it agreed with Chevron’s counsel that the resolution of climate science issues would not be determinative in the case for the reasons set forth in the motion to dismiss. In its response, Royal Dutch Shell plc asserted that it did not “necessarily adopt each statement contained in the various IPCC reports” but agreed that they were an “appropriate source of information for the court to consider to further its understanding of the timeline and science surrounding climate change.” ConocoPhillips Company said it did not conduct research on global warming and climate change science but deferred to the scientific community’s consensus as reflected in the IPCC science assessments, which it understood to be the basis of Chevron’s presentation. In its response, BP p.l.c. indicated it did not disagree with Chevron’s counsel’s presentation and that it reserved the right to advance positions supported by fact and scientific/expert evidence in support of its defense.
Also on April 4, Oakland and San Francisco submitted redlines showing the differences between their original complaints and the amended complaints filed on April 3, which added a federal nuisance cause of action. In their summary of additions to the complaints, the cities said they also had added, among other things, additional causation allegations based on a 2014 study that set forth the amount of carbon dioxide and methane in the atmosphere that is attributable to each defendant’s production of fossil fuels. The plaintiffs also said the amended complaint contained additional allegations regarding sea level rise, expressly disavowed claims based on lobbying activities, and removed allegations regarding the “Global Climate Science Communications Team” to avoid “unnecessary debates” regarding whether the group was “strictly focused on lobbying.” City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal.).
Center for Biological Diversity Asked Court to Compel Determination of Whether to Protect Tinian Monarch as Endangered or Threatened
The Center for Biological Diversity (CBD) filed a lawsuit against Secretary of the Interior Ryan Zinke and the U.S. Fish and Wildlife Service to challenge their failure to make a mandatory finding on whether to list the Tinian monarch as endangered or threatened under the Endangered Species Act. The complaint alleged that the Tinian monarch was a “small forest flycatcher native to Tinian Island, a small island in the western Pacific Ocean” and that the species was “in imminent danger of extinction due to the loss and degradation of its highly restricted range …, predation and competition from invasive species, axian poxvirus, and the effects of climate change.” The species was listed as endangered in 1970 but was declared fully recovered and delisted in 2004. The complaint alleged that CBD submitted a petition requesting that the Tinian monarch be listed as endangered or threatened in December 2013 and that the defendants had published a finding in September 201 that listing “may be warranted.” CBD asked the court to set a deadline for a response to its petition. Center for Biological Diversity v. Zinke, No. 1:18-cv-00862 (D.D.C., filed Apr. 12, 2018).
California to Appeal Federal District Court Decision Upholding Environmental Waivers for Border Wall
California filed a notice that it would appeal the decision of the federal district court for the Southern District of California upholding waivers of environmental requirements granted by the Department of Homeland Security for construction of certain border wall projects in California. People of the State of California v. United States, No. 3:17-cv-01911 (S.D. Cal. Apr. 9, 2018).
States, D.C., and Chicago Filed Lawsuit to Compel EPA to Regulate Methane from Existing Oil and Gas Sources
New York, 13 other states, the City of Chicago, and the District of Columbia filed an action in federal district court in the District of Columbia alleging that EPA had failed to comply with its nondiscretionary duty under the Clean Air Act to establish guidelines for limiting methane emissions from existing sources in the oil and natural gas sector. The plaintiffs asserted that EPA’s failure to publish such guidelines constituted agency action unreasonably delayed and asked the court to order EPA to propose and promulgate emissions guidelines. New York v. Pruitt, No. 1:18-cv-00773 (D.D.C., filed Apr. 5, 2018).
Massachusetts High Court to Hear Challenge to Power Sector Greenhouse Gas Emissions Limits
Briefing was completed in the Massachusetts Supreme Judicial Court on April 27, 2018 in the case challenging regulations that set greenhouse gas emissions limits for the electric power sector. A hearing is scheduled for May 8. The case was originally filed in Superior Court but was transferred to the County Court on January 31 and then reserved and reported to the full Supreme Judicial Court on February 9. (A second case challenging the regulations (Calpine Corp. v. Department of Environmental Protection, No. 1784CV02917 (Mass. Super. Ct.) was stayed pending the agencies’ completion of amendments to the regulations.) The trade association and power plant owner challenging the regulation argued that the annually declining, mass-based emissions limits exceeded the state agencies’ authority under the Global Warming Solutions Act (GWSA), that the regulations were arbitrary and capricious because they will likely increase statewide greenhouse gas emissions, and that the agencies were without authority to set emissions limits past the sunset date of December 31, 2020. The state agencies contended that the electric sector emissions limits were an “essential backstop that ensures the emissions reduction path driven by other policies necessary to meet the GWSA’s 2020 and 2050 limits” and that, by design, the emissions limits would work with Clean Energy Standard regulations to ensure net reductions in statewide and regional emissions. The agencies also argued that the GWSA’s sunset clause did not bar electric sector regulations that extended beyond the sunset date. Conservation Law Foundation filed an amicus brief in support of the regulations, arguing that the regulations fulfilled the requirements set forth by the Supreme Judicial Court in Kain v. Department of Environmental Protection, which held that the GWSA required Massachusetts to promulgate regulations to ensure enforceable volumetric emissions limits. The Massachusetts Municipal Wholesale Electric Company, which operates fossil fuel-fired generating facilities for sale to its municipal members, and Footprint Power Salem Harbor Development LP, the developer of a planned electric generating facility, intervened as challengers of the regulations. New England Power Generators Association v. Department of Environmental Protection, No. SJC-12477 (Mass.).
Sierra Club Challenge to California Warehouse Facility Included Allegations of Failure to Consider Greenhouse Gas and Energy Impacts
Sierra Club filed a lawsuit in California Superior Court claiming that the City of Fontana did not comply with the California Environmental Quality Act when it approved the Southwest Fontana Logistics Project, which involves development of two industrial warehouse buildings totaling approximately 1.6 million square feet on 73.3 acres. Sierra Club asserted, among other things, that the City failed to adequately analyze potential greenhouse gas emission impacts and failed to consider or adopt feasible mitigation measures for significant greenhouse gas impacts. The petition alleged that the City failed to require sufficient analysis of the project’s energy consumption and transportation energy impacts and failed to demonstrate that the project would take steps to reduce dependency on fossil fuels. Sierra Club v. City of Fontana, No. CIVDS 1804385 (Cal. Super. Ct., filed Feb. 22, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Colombia’s Supreme Court Ordered Government to Address Deforestation in the Amazon
On April 5, 2018, the Colombia Supreme Court reversed a lower court decision that ruled against youth plaintiffs who 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 alleged 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) threaten plaintiffs’ fundamental rights. The plaintiffs filed a special constitutional claim called a “tutela” used to enforce fundamental rights. In reversing the ruling against the plaintiffs, the Supreme Court recognized that the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem” and further recognized the Colombian Amazon as a “subject of rights” in the same manner that the Constitutional Court recognized the Atrato River in an earlier decision. The Supreme Court declared that the Colombian Amazon accordingly was entitled to protection, conservation, maintenance, and restoration. The court ordered the government to formulate and implement action plans to address deforestation in the Amazon. Future Generations v. Ministry of the Environment and Others “Demanda Generaciones Futuras v. Minambiente,” 11001-22-03-000-2018-00319-01 (Colom. Sup. Ct. Apr. 5, 2018) [Spanish] [unofficial English translation].