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 # 110.
Magistrate Denied Federal Government’s Motion to Stay Discovery in Young People’s Constitutional Climate Case; Government Defendants Filed Objections to Denial and Sought Judgment on Pleadings and Summary Judgment
On May 25, 2018, a magistrate judge in the federal district court for the District of Oregon denied the defendants’ motion for a protective order precluding discovery in the lawsuit against the United States, the president, and other federal defendants in which young plaintiffs assert constitutional claims based on climate change impacts. The defendants had moved for a protective order and to put a hold on discovery on the grounds that the lawsuit must necessarily proceed under the Administrative Procedure Act (APA) and therefore must be heard on the administrative record. The defendants also argued that separation of powers made discovery inappropriate. In addition, the defendants asked that the lawsuit be stayed while their motions for judgment on the pleadings and summary judgment were pending.
In the order denying the protective order, the magistrate judge said the plaintiffs’ complaint did not contain an APA claim and that the defendants “have no ability to edit the complaint to cobble the claim into one [of] their choosing to derail discovery.” The magistrate judge also characterized the motion as a recasting of the defendants’ unsuccessful motion to dismiss. The magistrate judge indicated that he was “not at all persuaded” that the plaintiffs were limited to bringing an APA-based claim and noted that the district court had already rejected this argument when it denied the motion to dismiss. The magistrate judge also rejected the argument that separation of powers barred all discovery, saying that to broadly preclude discovery on such grounds would allow the government to avoid discovery “simply by asserting hypothetical discovery requests that a litigant might make during the litigation.” The magistrate judge indicated that the defendants could, however, seek a protective order should specific discovery requests arise that implicate claims of privilege.
On June 1, the defendants filed objections asking for the district court’s “immediate intervention.” The defendants said the magistrate judge had failed to “substantively engag[e]” with any of their arguments and that his order was contrary to law and clearly erroneous. The defendants also asked the magistrate judge for a stay pending the resolution of their objections. On June 4, the defendants filed another motion for a protective order, this one targeting deposition notices served on the Departments of the Interior, Agriculture, and Transportation as well as requests for admissions. The defendants also asked that a protective order at least be granted while their objections to the denial of the earlier motion for a protective order of all discovery were pending.
In their motion for judgment on the pleadings, filed on May 9, the defendants argued that the court lacked jurisdiction over claims against the president because separation of powers principles bar federal courts from ordering injunctive relief against the president for official acts. The defendants also asserted that the plaintiffs’ first amended complaint otherwise failed to state valid claims or stated claims that were barred by separation of powers principles. In particular, the defendants argued that the APA provided the “sole mechanism” for the plaintiffs to make their claims, and that all but one of the plaintiffs’ claims made no effort to challenge “circumscribed, discrete” final agency action as required by the APA. The defendants also reasserted the arguments for dismissal from their November 2015 motion to dismiss, including lack of standing and failure to state a claim. The plaintiffs were allowed until June 15 to respond to the motion, with the defendants’ reply due on June 29. Oral argument is scheduled for July 18. (The plaintiffs urged the court to defer resolution of this motion until trial, and had even asked that briefing on the motion be deferred. They argued that the motion was another dilatory tactic on the part of the defendants and said they had already devoted substantial time to informal discovery and had served 17 expert reports and requests for admissions. They also contended that further delay would significantly prejudice them, given the “urgency of the climate emergency.” The defendants responded that deferring resolution of the threshold issues raised by their motion would severely prejudice them and potentially waste “vast amounts” of judicial and litigation resources.)
In their motion for summary judgment, filed on May 22, the defendants indicated that they were following the direction of the Ninth Circuit. The defendants argued that the Ninth Circuit, in denying their request for mandamus, had “observed that Plaintiffs’ claims in this case may be too ‘broad to be legally sustainable,’ and that ‘some of the remedies the plaintiffs seek may not be available as redress.’” The defendants also noted that the Ninth Circuit had said the defendants could reassert challenges to standing, seek summary judgment, and ask for interlocutory appeal. The defendants’ May 22 motion therefore sought summary judgment on “three threshold grounds”: plaintiffs’ lack of Article III standing; plaintiffs’ failure to comply with the requirements of the APA or identify another valid cause of action; and the absence of authority for the court to grant the relief sought by the plaintiffs. With respect to standing, the defendants argued that even if the plaintiffs’ standing allegations were sufficient under a motion-to-dismiss standard, the plaintiffs subsequently had failed to set forth specific facts supporting the existence of a concrete and particularized injury that was traceable to the defendants’ actions and redressable by the court. The defendants also argued that they were entitled to summary judgment because the plaintiffs’ due process and public trust claims failed as a matter of law. In addition, the defendants requested that any denial of the motion be certified for interlocutory appeal.
On May 24, the defendants filed notice of their application to the U.S. Supreme Court for an extension of the time in which they may file a petition for writ of certiorari seeking review of the Ninth Circuit’s denial of their petition for writ of mandamus. The defendants sought an extension of 30 days, to July 5, to allow the solicitor general to continue to consult with federal agencies to determine what course of action to take. Justice Kennedy granted the application on May 29. Juliana v. United States, No. 6:15-cv-01517 (D. Or.).
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Review New York’s Denial of Water Quality Certification for Gas Pipeline
The U.S. Supreme Court denied certiorari to a pipeline developer seeking review of a Second Circuit decision that upheld the New York State Department of Environmental Conservation’s denial of a water quality certification for an interstate natural gas pipeline. The developer had argued that denial of the certification interfered with the Federal Energy Regulatory Commission’s exclusive jurisdiction and violated fundamental principles of federal supremacy. Constitution Pipeline Co. v. New York State Department of Environmental Conservation, No. 17-1009 (U.S. Apr. 30, 2018).
Federal Court Ordered EPA to Respond to Request for Documents Supporting Pruitt Statements on Climate Change
A D.C. federal court granted summary judgment to Public Employees for Environmental Responsibility (PEER) in PEER’s Freedom of Information Act (FOIA) lawsuit against the U.S. Environmental Protection Agency (EPA) seeking documents that EPA Administrator Scott Pruitt relied on when he stated in a March 2017 television interview that “I would not agree that” carbon dioxide generated by humans is “a primary contributor to the global warming that we see,” and that “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.” In the second part of its FOIA request, PEER sought EPA documents supporting the conclusion that human activity is not the primary driver of climate change. The court characterized as “hyperbolic objection” EPA’s argument that PEER’s request was “an impermissible attempt to compel EPA and its Administrator to answer questions and take a position on the climate change debate.” The court said it was “[p]articularly troubling” that EPA based its challenge to the first part of PEER’s request on the premise that “the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable.” The court also rejected the argument that the EPA administrator’s public statements were not a proper focus of a FOIA request. Regarding the second part of PEER’s FOIA request, the court said “EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change” in the D.C. Circuit and Supreme Court, and also suggested that the FOIA request “may be viewed as seeking agency records underpinning a potential change in position signaled by” Pruitt’s remarks. The court also rejected EPA’s claim that the second part of the request failed to reasonably describe the records sought and found that EPA had not demonstrated that responding to the second part of the request would be unduly burdensome. Public Employees for Environmental Responsibility v. EPA, No. 17-cv-652 (D.D.C. June 1, 2018).
Federal Court Denied Washington State Officials’ Motion to Dismiss Coal Terminal Lawsuit
At a hearing on May 30, 2018, the federal district court for the Western District of Washington denied Washington State officials’ motion for partial dismissal of a lawsuit challenging the State’s actions blocking a coal export facility in Longview, Washington. The defendants argued that neither the Interstate Commerce Commission Termination Act (ICCTA) nor the Ports and Waterways Safety Act preempted the State actions and that the State commissioner of public lands was immune from all the claims asserted in the lawsuit because they concerned her management of State-owned aquatic lands of a “unique and fundamentally sovereign nature.” The defendants also argued that the federal court should apply Pullman or Colorado River abstention doctrine to allow parallel state court lawsuits to proceed. The plaintiffs—the operators of a “coal energy supply chain company”—asserted that their claims did not threaten to divest Washington State of its sovereignty; that the ICCTA preempted the State actions, which would “unduly interfere with rail transportation as a matter of fact”; that the PWSA claims could not be dismissed because the defendants were blocking the terminal based on vessel traffic and safety concerns; and that abstention was inappropriate since the plaintiffs were not pursuing their federal claims in state court. BNSF Railway Company (BNSF), which intervened as a plaintiff, argued that the defendants were misusing state law to justify regulating rail and interstate and international commerce, and to interfere with foreign affairs. BNSF contended that their claims were not related just to a single coal terminal but to the defendants’ targeting of the coal supply chain “as part of a broader effort to stop coal use everywhere.” Parties other than BNSF that have participated in the litigation include environmental organizations, represented by Earthjustice, as defendant-intervenors, and the following parties as amici curiae in support of the plaintiffs: Cowlitz County, Western States Petroleum Association, Association of American Railroads, six states (Wyoming, Kansas, Montana, Nebraska, South Dakota, and Utah), American Farm Bureau Federation, American Fuel & Petrochemical Manufacturers, National Mining Association, and National Association of Manufacturers. Lighthouse Resources, Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash. May 30, 2018).
California Federal Court Nullified Oakland Ordinance Barring Coal Operations at Shipping Terminal
The federal district court for the Northern District of California ruled that the City of Oakland’s adoption of an ordinance that barred coal operations at a bulk cargo shipping terminal breached the City’s agreement with a developer for the conversion of an old army base into the terminal. The development agreement provided that regulations adopted after the agreement’s signing would not apply to the terminal unless the City determined, based on “substantial evidence,” that the failure to apply the new regulation would pose a “substantial danger” to the health or safety of the people of Oakland. The court found that the record before the City Council did not contain sufficient evidence to support a determination that coal operations would pose a substantial danger. The court rejected the City’s primary argument that particulate matter from coal operations posed such a danger, and also found that the record did not support a determination that fire hazards, worker safety, or greenhouse gases would pose a substantial danger. The court noted that “[t]he hostility toward coal operations in Oakland appears to stem largely from concern about global warming.” The court said the argument that global warming allowed it to invoke the development agreement’s “substantial danger” exception “barely merits a response.” The court stated: “It is facially ridiculous to suggest that this one operation resulting in the consumption of coal in other countries will, in the grand scheme of things, pose a substantial global warming-related danger to people in Oakland.” Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 3:16-cv-07014 (N.D. Cal. May 15, 2018).
Ninth Circuit Upheld Injunctive Relief at Federal Columbia River Power System for Climate Change-Related Violations of Endangered Species Act
The Ninth Circuit Court of Appeals upheld an injunction requiring federal defendants to take certain actions to address Endangered Species Act (ESA) violations identified in a May 2016 Oregon federal court order in connection with operations of the Federal Columbia River Power System (FCRPS). The district court found that the National Marine Fisheries Service (NMFS) failed to adequately consider climate change when it issued a biological opinion in 2014 concluding that the FCRPS management would not jeopardize endangered and threatened steelhead and salmon. In April 2017, the district court granted certain injunctive relief—including “increased spill” at dams to promote salmonid survival—to address the ESA violations. The Ninth Circuit noted that the ESA foreclosed consideration of all but the irreparable harm factor in the four-factor injunctive relief test and found that the district court had not erred in finding irreparable harm sufficient to support injunctive relief. The Ninth Circuit said that the district court was not required to find an “extinction-level threat” in the short term, but noted that the district court had found that continued low abundance of listed species made them vulnerable to extinction and that one of the shortcomings identified in the NMFS’s analysis was failure to analyze how climate change increased chances of “shock events” that would be catastrophic for listed species’ survival. The Ninth Circuit also dismissed an appeal of the district court’s order requiring disclosure of planned capital expenditures at FRCPS dams to allow plaintiffs the opportunity to file motions to enjoin projects that could bias the National Environmental Policy Action (NEPA) review on remand. (The district court had also found that the NEPA review did not give adequate attention to climate change). The Ninth Circuit said the district court’s disclosure order was not appealable. National Wildlife Federation v. National Marine Fisheries Service, No. 17-35462 (9th Cir. Apr. 2, 2018).
Power Plant Owner-Operators Agreed to Stop Burning Coal to Resolve Citizen Suit
Sierra Club and the owners and operators of the Brunner Island Steam Electric Plant in Pennsylvania lodged a consent decree in the federal district court for the Middle District of Pennsylvania to resolve alleged violations of the Clean Water Act, the Pennsylvania Clean Streams Law, and the Resource Conservation and Recovery Act. Among other things, the consent decree requires the defendants to cease combustion of coal by the end of 2028, except during certain “Emergency Action” events. In addition, the facility must cease combusting coal during the ozone season by the end of 2022 ozone season, except that during an interim period from 2023 to 2028, the plant may burn coal during the ozone season so long as certain conditions are met, including that the facility’s Units 1-3 shall emit less than 6.8 million tons of carbon dioxide each year. Sierra Club v. Talen Energy Corp., No. 1:18-cv-01042 (M.D. Pa. May 17, 2018).
California Federal Court Said Fish and Wildlife Service’s Withdrawal of Bi-State Sage Grouse Proposed Listing Was Arbitrary and Capricious, but Upheld Consideration of Cumulative Threats, Including Climate Change
The federal district court for the Northern District of California ruled for plaintiffs who challenged the U.S. Fish and Wildlife Service’s withdrawal in 2015 of the proposed listing of the Bi-State Sage Grouse distinct population segment of the greater sage-grouse as threatened under the Endangered Species Act. The court rejected, however, the argument that the FWS had not considered cumulative threats to the Bi-State Sage Grouse, including climate change. The court noted that courts had generally found that the FWS met the requirement to consider cumulative threats when it provided “even a brief discussion” of such threats. In this case, the court said the FWS “offered sufficient explanation of its consideration of cumulative threats” by “identif[ying] the threats that may interact and provid[ing] some explanation of the implications of the interactions.” The court found, however, that other aspects of the FWS’s determination were otherwise arbitrary and capricious and that the definition of “significant” in the FWS’s final policy on interpretation of the phrase “significant portion of its range” was an impermissible interpretation. Desert Survivors v. U.S. Department of the Interior, No. 3:16-cv-01165 (N.D. Cal. May 15, 2018).
Washington Appellate Court Upheld Convictions of Protestors, Affirmed Trial Court’s Decision Not to Instruct Jury on Necessity Defense
The Washington Court of Appeals affirmed the trespass convictions of four protestors who entered a rail yard in Everett, Washington, and blocked tracks to protest coal and oil trains and raise awareness of rail safety and climate change. The appellate court found that the trial court had not abused its discretion when it denied the defendants’ request for a jury instruction on the necessity defense. The appellate court agreed that the defendants had failed to offer sufficient evidence for the fourth element of the necessity defense requiring that no reasonable legal alternatives existed. The appellate court also disagreed with the defendants’ argument that their right to present a defense was violated by the trial judge allowing them to present evidence for the necessity defense but refusing to instruct the jury on the defense. The appellate court rejected, however, the State’s argument that a necessity defense was never available in a civil disobedience context. State v. Brockway, Nos. 76242-7, 76242-5, 76242-3, 76242-1 (Wash. Ct. App. May 29, 2018).
California Court of Appeal Upheld Construction Greenhouse Gas Emissions Analysis Based on Statewide Goals
The California Court of Appeal affirmed the rejection of California Environmental Quality Act and other claims challenging the County of San Mateo’s approval of a 19-home residential development. The organization challenging the project argued unsuccessfully that the County used flawed methodology to determine that greenhouse gas emissions during construction could be mitigated to a less than significant level. The environmental impact report’s (EIR’s) analysis concluded that there would be a less-than-significant cumulative impact on greenhouse gas emissions if mitigation measures were required to reduce project-related emissions by 26% below business-as-usual, to match the statewide goal for greenhouse gas emissions reductions. The Court of Appeal said this assumption did not suffer from the same flaws as the analysis struck down by the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife, which found insufficient evidence to support a conclusion that reducing business-as-usual emissions at the project level was consistent with achieving statewide goals. In an unpublished opinion, the Court of Appeal distinguished the instant case as involving “analysis of GHG emissions during a finite construction phase of the project” while the Center for Biological Diversitycase involved “the impact of GHG emissions resulting from the operation of a massive development project.” The Court of Appeal also noted that in this case the EIR assumed that construction emissions would be significant and an “objective concrete method” to reduce emissions was required, whereas the agency in Center for Biological Diversityconcluded no greenhouse gas mitigation measures were required because impacts would not be significant. Responsible Development for Water Tank Hill v. County of San Mateo, No. A150883 (Cal. Ct. App. May 18, 2018).
California Court of Appeal Said Approvals for Newhall Ranch Could Remain in Place While Los Angeles County Fixed Greenhouse Gas Analysis
The California Court of Appeal upheld a trial court’s decision to leave land use approvals of components of the Newhall Ranch development in Los Angeles County in place even though the court partially decertified the final EIR. The court partially decertified the EIR because Los Angeles County’s analysis of greenhouse gas emissions was found to be insufficient based on the California Supreme Court’s decision in Center for Biological Diversity v. Department of Fish & Wildlife, which concerned the same project and which found that the EIR’s conclusion that impacts of greenhouse gas emissions would not be significant was not supported by sufficient evidence or a reasoned explanation. The appellate court found that the limited writ granted by the trial court was a valid exercise of the trial court’s equitable powers. Friends of the Santa Clara River v. County of Los Angeles, Nos. B282421, B282427 (Cal. Ct. App. May 11, 2018).
New York Appellate Court Upheld Order Requiring Attorney General to Pay Competitive Enterprise Institute’s Attorney Fees in Freedom of Information Suit
The New York Appellate Division affirmed an order awarding costs and attorney fees to the Competitive Enterprise Institute (CEI) in CEI’s lawsuit against the New York attorney general under New York’s Freedom of Information Law (FOIL). CEI brought the lawsuit after the attorney general’s office denied a request for any climate change “common interest agreements” entered into by New York and other state attorneys concerning the sharing of information and other matters related to ongoing and potential climate change investigations. The New York attorney general unsuccessfully sought to dismiss the lawsuit as moot based on the public release of a common interest agreement by another party to the agreement. A trial court denied the motion, required the attorney general to provide further explanation, and eventually ordered payment of $20,377.50 in attorney fees as well as costs. The Appellate Division agreed that an award of fees was warranted, concluding that CEI had substantially prevailed even though the common interest agreement—the only document responsive to CEI’s request—had already been in the public domain. The Appellate Division also said there was not a reasonable basis for withholding the common interest agreement as attorney work product. The Appellate Division reduced the amount of the fees award to $16,312.50 because it did not agree with the court below’s assessment that the attorney general “stonewalled” CEI during the FOIL process. Matter of Competitive Enterprise Institute v. Attorney General of New York, No. 525579 (N.Y. App. Div. May 3, 2018).
Connecticut Court Said Zoning Board’s Failure to Consider Sea Level Rise Was “Contrary to Law and Logic”
The Connecticut Superior Court held that the City of Milford zoning board of appeals improperly denied variances for the rebuilding of a home destroyed by Hurricane Sandy. The court said the board’s denial based on a local “aesthetic” height requirement had not considered “the nuances and immediacy of flood hazard or sea level rise and the elevation requirements … and is thus contrary to law and logic.” The court also found that the plaintiffs’ hardship was not self-imposed—the court said their hardship was the total destruction of their home by Hurricane Sandy and the need to comply with applicable elevation requirements in rebuilding. Turek v. Zoning Board of Appeals for the City of Milford, No. LNDCV156063404S (Conn. Super. Ct. Apr. 4, 2018).
FERC Denied Rehearing of Approval of Natural Gas Facilities, Pulled Back on Consideration of Climate Change Impacts
In a split decision, the Federal Energy Regulatory Commission (FERC) denied a request for rehearing of its issuance of a certificate of public convenience and necessity for a project involving two new natural gas compressor stations, upgrades and modifications to existing compressor stations, and changes to other related facilities in New York (the New Market Project). FERC concluded that the environmental assessment had appropriately excluded analysis of upstream and downstream impacts because such impacts were neither cumulative nor indirect impacts of the New Market Project. The majority said that “[f]or a short time” FERC had gone “beyond that which is required by [the National Environmental Policy Act (NEPA)], providing the public with information regarding the potential impacts associated with unconventional natural gas production and downstream combustion of natural gas, even where such production and downstream use was not reasonably foreseeable nor causally related to the proposals at issue.” The majority described such information as “generic in nature and inherently speculative” and said it did not “meaningfully inform … project-specific review” and was not “helpful to the public.” The majority also indicated that it would not consider such information in its analysis of public convenience and necessity under Section 7(c) of the Natural Gas Act (NGA). Two commissioners dissented in separate statements. Commissioner LaFleur said FERC should not change its policy on upstream and downstream impacts to provide less information regarding climate impacts. Commissioner Glick said that the majority’s consideration of climate change fell short of FERC’s obligations under NEPA and the NGA. In re Dominion Transmission, Inc., No. CP14-497-001 (FERC May 18, 2018).
California Administrative Law Judge Recommended Denial of Replacement Natural Gas Pipeline
A California administrative law judge (ALJ) issued a proposed decision recommending that the Public Utilities Commission deny an application for a new 47-mile natural gas pipeline to replace an existing pipeline. The proposed decision found that the applicants had not shown “why it is necessary to build a very costly pipeline to substantially increase gas pipeline capacity in an era of declining demand and at a time when the state of California is moving away from fossil fuels.” In re San Diego Gas & Electric Co., No. 15-09-013 (Cal. PUC May 2, 2018).
Minnesota Administrative Law Judge Recommended Replacement Oil Pipeline Be Approved Only if Constructed in Existing Corridor
A Minnesota administrative law judge recommended that the Public Utilities Commission grant a certificate of need for a “replacement” oil pipeline but only if the Commission also required in-trench replacement. The applicant sought to abandon the existing line in place and build a new pipeline that would require a new pipeline corridor for approximately 50% of its route. The ALJ expressed concern that abandonment of the existing line and creation of the new corridor “leaves open the possibility of thousands of miles of … pipelines someday being abandoned in-place when they are no longer economically useful,” particularly “in a carbon-conscious world moving away from fossil fuels.” The ALJ’s decision also summarized the greenhouse gas analysis for the pipeline and found that the pipeline did not support Minnesota’s renewable energy and greenhouse gas reduction goals, but the ALJ’s ultimate recommendation did not turn on those issues. In re Enbridge Energy, L.P., No. OAH 65-2500-32764 (Minn. OAH Apr. 23, 2018).
NEW CASES, MOTIONS, AND NOTICES
States, D.C., Electric Vehicle Coalition, and Environmental Groups Challenged EPA Determination That Obama Administration Greenhouse Gas Standards for Vehicles Were Too Stringent
Seventeen states and the District of Columbia filed a petition for review in the D.C. Circuit Court of Appeals challenging EPA’s decision to withdraw the Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022–2025 Light-Duty Vehicles. The Mid-Term Evaluation, which was issued in January 2017 prior to President Trump’s inauguration, concluded that the 2022-2025 vehicle standards remained appropriate. In April 2018, EPA said it had reconsidered the standards and determined “that the current standards are based on outdated information, and that more recent information suggests that the current standards may be too stringent.” EPA indicated that it would work in partnership with the National Highway Traffic Safety Administration to promulgate new standards. EPA also indicated that this April 2018 revised determination was not a final agency action because its effect was “to initiate a rulemaking process whose outcome will be a final agency action.” Seven organizations led by Center for Biological Diversity also challenged the EPA’s action, as did the National Coalition for Advanced Transportation—a “coalition of companies that supports electric vehicle and other advanced transportation technologies and related infrastructure.” The Coalition includes Tesla, Inc. and a number of utilities. California v. EPA, No. 18-1114 (D.C. Cir., filed May 1, 2018); National Coalition for Advanced Transportation v. EPA, No 18-1118 (D.C. Cir., filed May 3, 2018); Center for Biological Diversity v. EPA, No. 18-1139 (D.C. Cir., filed May 15, 2018).
States Challenged EPA’s Failure to Implement Emission Guidelines for Existing Landfills
Eight states, led by California, filed a lawsuit in the federal district court for the Northern District of California asserting that EPA had failed to fulfill its statutory duty to implement and enforce emission guidelines for municipal solid waste landfills that would have controlled emissions of volatile, organic compounds, hazardous air pollutants, carbon dioxide, and methane. The states alleged that EPA had worked to undermine the emission guidelines by communicating that it does not intend to implement them and that EPA had violated statutory mandates to approve or disapprove state implementation plans and to impose federal plans on noncomplying states. California v. EPA, No. 4:18-cv-03237 (N.D. Cal., filed May 31, 2018).
Federal Government Weighed in to Support Illinois Nuclear Subsidies Before Seventh Circuit
The United States and FERC (together, the U.S.) submitted an amicus brief to the Seventh Circuit Court of Appeals in support of Illinois’s law requiring “zero emission credits” for certain nuclear power plants. The U.S. submitted the brief at the invitation of the Seventh Circuit, which sought the federal government’s views during the court’s review of a district court decision upholding the law. The U.S. asserted that the Federal Power Act did not preempt the Illinois law and that the Illinois program would not impede FERC’s regulation of wholesale markets. The U.S. also described guidance in FERC proceedings for how states may support renewable or clean power without interfering with FERC’s authority over wholesale energy transactions. Village of Old Mill Creek v. Star, No. 17-2445 (7th Cir. May 29, 2018).
Lawsuit in Montana Federal Court Challenged NEPA Reviews for Oil and Gas Lease Sales
Two environmental groups, a Montana landowner, and the owners of an orchard in Montana filed a lawsuit in the federal district court for the District of Montana challenging the U.S. Bureau of Land Management’s (BLM’s) compliance with the National Environmental Policy Act (NEPA) in connection with BLM’s oil and gas lease sales for almost 150,000 acres of public lands in Montana. The plaintiffs alleged that BLM failed to address impacts on groundwater and also failed to address impacts on greenhouse gas emissions and climate change impacts, “perpetuating the fundamental disconnect between the federal government’s management of public lands and the changing climate.” The plaintiffs asserted that BLM’s environmental assessments for the lease sales failed to adequately quantify cumulative emissions; failed to accurately quantify direct and indirect emissions from oil and gas development; failed to monetize the economic costs of greenhouse gas emissions from the lease sales; and failed to provide any measure to demonstrate the context and intensity of the greenhouse gas emissions from the lease sales. The plaintiffs contended that in the absence of this information neither the public nor BLM could compare the costs and benefits of the lease sales or make informed choices between alternatives. WildEarth Guardians v. U.S. Bureau of Land Management, No. 4:18-cv-00073 (D. Mont., filed May 15, 2018).
Environmental Defense Fund Filed FOIA Lawsuit Seeking Documents Relevant to Efforts to Roll Back the Waste Prevention Rule
Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of the Interior (DOI), BLM, and the DOI Office of the Secretary and Office of the Solicitor seeking to compel disclosure of documents related to efforts to suspend, delay, repeal, or revise the Waste Prevention Rule. The Waste Prevention Rule imposes requirements to reduce waste of natural gas, including methane, from oil and gas production activities on public and tribal lands. EDF said it submitted six FOIA requests in May 2017 and November 2017 as part of its efforts “to understand the coordination between DOI, Congress, and industry groups” to roll back the rule, which included an unsuccessful attempt to revoke the rule using the Congressional Review Act as well as regulatory actions to suspend the effective date of key provisions. EDF alleged that the defendants failed to provide timely responses to its requests, failed to provide responsive documents, failed to adequately search for records, and failed to provide reasonably segregable portions of documents that were otherwise exempt from disclosure. Environmental Defense Fund v. Department of the Interior, No. 1:18-cv-01116 (D.D.C., filed May 10, 2018).
Wilderness Society Filed FOIA Lawsuit Seeking Interior Department Documents Implementing Trump Energy Independence Executive Order
The Wilderness Society filed a FOIA lawsuit in the federal district court for the District of Columbia seeking to compel responses to 21 FOIA requests it submitted since April 2017 for documents related to the Department of the Interior’s implementation of President Trump’s Executive Order 13783, “Promoting Energy Independence and Economic Growth.” The Wilderness Society alleged that it had requested numerous reports and related documents from DOI, including reports required as part of a “Climate Change Policy Review,” in which the Secretary of the Interior ordered office and bureau heads to provide all actions adopted or under development that had been rescinded by Executive Order 13783 as well as drafts of revised or substituted actions for review by the Secretary. The Wilderness Society asserted that DOI constructively denied its FOIA requests and withheld information, failed to abide by statutory deadlines, failed to conduct adequate searches, failed to inform of receipt and provide tracking numbers, failed to provide estimated dates for completion of action on requests or appeals, and engaged in a pattern of unlawful conduct or failure to provide estimated dates. Wilderness Society v. U.S. Department of Interior, No. 1:18-cv-01089 (D.D.C., filed May 9, 2018).
King County Sued Five Fossil Fuel Companies in Washington State Court to Compel Funding of Climate Change Adaptation Program; Chevron Removed to Federal Court
On May 9, 2018, King County in Washington State filed a public nuisance and trespass action in Washington Superior Court against the world’s five largest investor-owned fossil fuel companies. The County asserted that the companies’ “production and promotion of massive quantities of fossil fuels, and their promotion of those fossil fuels’ pervasive use” created a public nuisance of “global warming-induced sea level rise and other climate change hazards.” The County contended that the companies were individually and collectively “substantial contributors” to global warming who promoted the use of fossil fuels despite knowing “for many years that global warming threatened severe and ever catastrophic harms to coastal areas like King County.” The County also contended that the companies knew that their actions would cause invasions of King County property due to sea level rise and storm surge. The County alleged that it was already experiencing climate change impacts, including “warming temperatures, acidifying marine waters, rising seas, increasing flooding risk, decreasing mountain snowpack, and less water in the summer,” that rising sea levels posed an imminent threat of storm surge flooding that could inundate portions of the county, and that the County would be required to spend hundreds of millions of dollars to build infrastructure to protect King County and its residents. The County sought an order of abatement requiring the companies to fund a climate change adaptation program for the County as well as compensatory damages for the costs the County had already incurred.
On May 25, Chevron Corporation removed the case to federal court, stating that the court had both original federal diversity jurisdiction and original federal question jurisdiction. Regarding federal question jurisdiction, the notice of removal asserted that the plaintiff’s claims implicated “uniquely federal interests” and were governed by federal common law, not state law; that the action “necessarily raises disputed and substantial federal questions that a federal forum may entertain without disturbing a congressionally approved balance of responsibilities between the federal and state judiciaries”; that the Clean Air Act and/or other federal statutes and the U.S. Constitution completely preempted the plaintiff’s claims; that the plaintiff’s claims were based on “alleged injuries to and/or conduct on federal enclaves”; and that the action necessarily implicated federal authority over the navigable waters of the United States and therefore fell within the federal court’s original admiralty jurisdiction. Chevron also argued that the court had original jurisdiction under the Outer Continental Shelf Lands Act and pursuant to federal officer and bankruptcy removal statutes. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. May 25, 2018); King County v. BP p.l.c., No. 18-2-11859-0 (Wash. Super. Ct., filed May 9, 2018).
Three States Filed Amicus Brief Opposing Dismissal of Oakland and San Francisco Climate Change Nuisance Suits; United States Weighed in to Support Dismissal; Court Ordered Post-Argument Briefing
After the federal district court for the Northern District of California held oral argument on May 24, 2018 on fossil fuel companies’ motions to dismiss the climate change nuisance lawsuits brought by Oakland and San Francisco, the court issued a written order granting the cities’ requests to take jurisdictional discovery as to three of the defendants (BP p.l.c., ConocoPhillips Company, and Royal Dutch Shell plc) as well as concerning the nature of the relationship between Shell Oil Company and Royal Dutch Shell. The court also denied the plaintiffs’ request for jurisdictional discovery as to Exxon Mobil Corporation and ordered supplemental briefing on the jurisdictional issues, with briefing to be completed by August 16. In addition, the court ordered the parties to submit briefs by May 31 on “the extent to which adjudication of plaintiffs’ federal common law nuisance claims would require the undersigned judge to consider the utility of defendants’ alleged conduct.” In their supplemental brief, the defendants asserted that “well-established nuisance law” required that the court weigh the utility of fossil fuel extraction against alleged harms to determine if the defendants’ conduct was unreasonable; the defendants also argued that engaging in such a balancing would require “second-guessing Congress.” The plaintiffs argued that the court was not required to balance the utility of the conduct because they sought monetary relief—an abatement fund—and not to enjoin the defendants’ conduct.
On May 8, 2018, the court granted California, New Jersey, and Washington’s request to submit an amicus brief in support of Oakland and San Francisco’s opposition to fossil fuel companies’ motion to dismiss their climate change public nuisance suit. The three states characterized their brief as focusing on “a subset of issues where our States are in a position to offer a fuller picture of the case law and relevant statutes and regulations.” First, they contested the position of the fossil fuel companies and other amici states advocating for dismissal of the lawsuits that Oakland and San Francisco’s complaints asserted non-justiciable political questions. They also said that the complaints did not threaten state climate programs or jeopardize cooperative federalism. They also argued that the public nuisance alleged by Oakland and San Francisco was not authorized by law, that the Clean Air Act did not displace the public nuisance claims, and that the relief sought by the cities would not constitute extraterritorial regulation in violation of the dormant Commerce Clause.
On May 10, the United States filed an amicus brief in support of dismissal. Its brief argued that federal common law of nuisance afforded no relief to the cities; that federal law (including the Clean Air Act, federal authorities relating to international climate change, and federal statutes governing production of fossil fuels) displaced any such nuisance claims; and that the claims violated separation of powers principles. The United States asserted that it has “strong economic and national security interests in promoting the development of fossil fuels, among other energy resources,” and that the lawsuit threatened to interfere with the U.S.’s “ongoing attempts to address the impacts of climate change, both domestically and internationally.” City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal.).
Briefing Completed on Motion to Dismiss New York City’s Lawsuit Against Fossil Fuel Companies; Oral Argument Set for June 13
On May 4, 2018, the parties completed the briefing on motions by the three U.S.-based fossil fuel company defendants to dismiss New York City’s climate change nuisance and trespass lawsuit. Two of the U.S.-based companies, ConocoPhillips and Exxon Mobil Corporation, also raised personal jurisdiction issues in separate motions. The court deferred addressing these issues until after resolution of the defendants’ arguments that the court lacks subject matter jurisdiction and that the amended complaint fails to state a claim. The court also allowed the two foreign-based defendants to defer responding to the complaint until after these issues are resolved.
The court will hear oral argument on non-personal jurisdiction issues on June 13, 2018. In support of their motion to dismiss, the U.S.-based defendants argued, among other things, that New York’s claims, though labeled state law claims, actually arose under federal common law and that Congress displaced such global warming-based federal common law claims. Alternatively, the defendants asserted that the complaints’ allegations failed to state viable federal common law claims. In addition, the defendants argued that the Commerce Clause and Due Process and Takings Clauses barred the claims, that federal law preempted the claims, that the claims impermissibly infringed on the federal foreign affairs power, that the claims did not present a justiciable case or controversy, that the claims presented non-justiciable political questions, and that New York City lacked standing. The defendants also contended that state law claims were not viable because, among other things, allegations of proximate causation were lacking and New York City was “an active, voluntary participant in the unlawful activity that is the subject of the suit” and the claims were thus barred by the in pari delicto doctrine. ConocoPhillips argued separately that “well-settled principles of proximate cause” barred liability in this case, as they had in similar cases against the gun and tobacco industries. Fifteen states filed an amicus brief in support of the motion to dismiss. They argued that the claims raised nonjusticiable political questions, jeopardized the U.S.’s system of cooperative federalism, and threatened extraterritorial regulation. The states also argued that federal statutes had displaced federal common law.
New York City responded that it had stated viable state law claims, that federal doctrines did not bar the claims, that the claims were justiciable, that the City had standing, that federal common law did not displace state law, and that, in any event, the City had pleaded viable federal common law claims that had not been displaced by the Clean Air Act. The City said the defendants’ assertion that climate change tort litigation would intrude on federal legislative and executive authorities had been rejected by the Second Circuit in Connecticut v. American Electric Power Corp. and that the defendants’ “overbroad” foreign powers argument would “invalidate a multitude of state laws on climate change.” The City also contended that neither the Clean Air Act nor other federal statutes conflicted with its claims. In a separate memorandum of law responding to ConocoPhillips’ argument that proximate causation principles barred liability, the City argued that basic tort law principles provided for individual tortfeasor liability where multiple tortfeasors have contributed to an indivisible harm and that the defendant companies could be held liable for the foreseeable consequences of their production and marketing of fossil fuels. The City distinguished its case from the gun and tobacco litigation cases cited by ConocoPhillips. On June 1, the Niskanen Center, a think tank “with a strong interest in protecting Americans property rights,” sought to file an amicus brief in support of the City. The brief disputed the defendants’ argument that applying state common law to their actions would violate a federal interest in uniform regulation of their conduct. City of New York v. BP p.l.c., No. 1:18-cv-00182 (S.D.N.Y.).
Lawsuit Filed in Connecticut Federal Court to Stop Transfer of Clean Energy and Energy Efficiency Funds
A group of individuals, organizations, and companies filed a lawsuit against Connecticut’s governor, treasurer, and comptroller to stop the officials from “sweeping” the Connecticut Energy Efficiency Fund (CEEF) and Clean Energy Fund. The plaintiffs described themselves as “invested in improving the State’s energy efficiency and clean energy economy” and asserted that the defendants were seeking to transfer funds to the State’s General Fund that had been collected from ratepayers and held for certain purposes—including lowering carbon emissions and investing in Connecticut’s Green Bank. The plaintiffs asserted that the diversion of the funds violated the Contracts Clause of the U.S. and Connecticut State Constitutions and the Equal Protection Clause of the U.S. Constitution. The plaintiffs also asserted that the sweep violated the legislation establishing the Green Bank and violated the tax-exempt status of one of the plaintiffs. In addition, they asserted a promissory estoppel claim. de Mejias v. Malloy, No. 2:18-cv-00817 (D. Conn., filed May 15, 2018).
Conservation Organizations Challenged Oil and Gas Leases in Sage-Grouse Habitat
Western Watersheds Project and Center for Biological Diversity filed a complaint in the federal district court for the District of Idaho asserting that the Trump administration’s sale of hundreds of thousands of acres of oil and gas leases within or affecting sage-grouse habitat violated the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. The complaint alleged that the federal defendants violated NEPA by, among other things, failing to address likely climate change impacts to the sage-grouse and its habitat. The plaintiffs also challenged Bureau of Land Management guidance issued in late 2017 and early 2018. Western Watersheds Project v. Zinke, No. 1:18-cv-00187 (D. Idaho, filed Apr. 30, 2018).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
Families Brought Action in EU General Court to Compel EU to Take More Stringent Emissions Reductions Because Climate Change Threatens Plaintiffs’ Fundamental Rights
Ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, brought an action in the EU General Court seeking to compel the EU to take more stringent greenhouse gas (ghg) emissions reductions. Plaintiffs allege that the EU’s existing target to reduce domestic ghg emissions by 40% by 2030, as compared to 1990 levels, is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property.
The lawsuit has two major components. First, plaintiffs bring a nullification action, asking the court to declare three EU legal acts as void for failing to set adequate ghg emissions targets. The three EU legal acts are: Directive 2003/87/EC governing emissions from large power generation installations (ETS); regulation […] 2018/EU on emissions from industry, transport, buildings, agriculture, etc. (ESR); and regulation […] 2018/EU on emissions from and removals by land use, land use change, and forestry (LULUCF). Plaintiffs argue that inadequate emissions reductions violate higher order laws that protect fundamental rights to health, education, occupation, and equal treatment as well as provide obligations to protect the environment. These higher rank laws include: the EU Charter of Fundamental Rights (ChFR), the Treaty on the Functioning of the European Union (TFEU), the United Nations Framework Convention on Climate Change (UNFCCC), and the Paris Agreement. Plaintiffs ask the court to order that the three emissions reductions laws remain in force until improved versions of the Acts can be enacted. Art. 263 of the Treaty on the Functioning of the EU (TFEU) is the basis for this procedural action.
The second action concerns non-contractual liability. Article 340 of the TFEU provides a mechanism for injunctive relief when three conditions are met: 1) there is an unlawful act by the EU institution(s), 2) the unlawful act is a serious breach of a law that protects individual rights, and 3) there is a sufficient causal link between the breach and the damages.
Demanded relief is an injunction to compel the EU to set more stringent ghg emissions reductions targets through the existing framework of the ETS, ESR and LULUCF regimes in order to bring the EU into compliance with its legal obligations. Plaintiffs assert this would require a 50%-60% reduction in ghg emissions below 1990 levels by 2030 or whatever level the court finds appropriate. Carvalho v. European Parliament, No. T-##/18 (EU Gen. Ct. May 24, 2018).