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 firstname.lastname@example.org.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 111.
California Federal Court Dismissed Oakland and San Francisco’s Climate Change Nuisance Lawsuits
On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court—which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law—rejected the cities’ attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in American Electric Power Co. v. Connecticut (AEP)) and Ninth Circuit (in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina)). The district court held that AEP and Kivalina’s displacement rule would apply to the cities’ claims even though the claims were based not on the defendants’ own greenhouse gas emissions but on their sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori they cannot be sued for someone else’s.” The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in AEPand Kivalina—that the defendants’ actions and the resulting emissions occurred outside the U.S.—placed the cities’ claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs’ claims, such nuisance claims were “foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The court stated: “This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.” In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”
The district court issued its order dismissing the cases after three of the defendants and the plaintiffs reached agreements to avoid the jurisdictional discovery ordered by the court in May. After dismissing the cases, the court issued a request that the parties submit a joint statement regarding whether it was still necessary to address the recently narrowed personal jurisdiction motions to dismiss. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. June 25, 2018).
DECISIONS AND SETTLEMENTS
D.C. Circuit Said NEPA Did Not Require Updated Review of Coal Leasing Program
The D.C. Circuit Court of Appeals affirmed dismissal of a lawsuit seeking to compel an update of the programmatic environmental impact statement (PEIS) for the federal coal leasing program. The U.S. Bureau of Land Management (BLM) completed the PEIS in 1979; plaintiffs argued that BLM was required to update the environmental review due to the availability of tens of thousands of scientific studies on climate change and coal combustion’s contributions to climate change. The D.C. Circuit held that the National Environmental Policy Act (NEPA) did not require BLM to update the environmental review because the relevant “major Federal action” (establishment of the federal coal program) was completed in 1979 and no new action had been proposed. The D.C. Circuit said the plaintiffs raised “a compelling argument” that BLM “should now revisit the issue” of climate change and “adopt a new program or supplement its PEIS analysis,” but concluded that the plaintiffs would have to pursue other avenues to raise this claim—either via a rulemaking petition or through challenges to specific licensing decisions (which “might challenge any attempt by BLM to rely on (or tier to) the 1979 PEIS on the ground that it is too outdated to support new federal action”). The D.C. Circuit also rejected the plaintiffs’ contention that statements in the 1979 regulatory materials created an obligation for BLM to update the PEIS even if NEPA did not require it. The D.C. Circuit said that while the statements “might have created a binding duty … at one point,” BLM’s amendments to the coal leasing rules in 1982 freed it from any supplementation duty beyond that imposed by NEPA. Western Organization of Resource Councils v. Zinke, No. 15-5294 (D.C. Cir. June 19, 2018).
Second Circuit Issued Opinion with Rationale for Vacating Rule That Delayed Penalty Increases for Violations of CAFE Standards
The Second Circuit Court of Appeals issued an opinion explaining the rationale for its April 2018 order vacating a National Highway Traffic Safety Administration (NHTSA) rule that indefinitely delayed a previously published rule that increased civil penalties for noncompliance with Corporate Average Fuel Economy (CAFE) standards. The court found that the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 did not give NHTSA authority to indefinitely delay adjustments to civil penalties and that NHTSA did not otherwise have authority to suspend the penalty increase rule. The Second Circuit also held that NHTSA violated the Administrative Procedure Act by failing to follow notice-and-comment rulemaking procedures when it adopted the delay rule. As a threshold matter, the Second Circuit also concluded that both the state petitioners and the environmental petitioners had standing. The Second Circuit also rejected the argument that the proceedings were untimely, finding that under the applicable Energy Policy and Conservation Act judicial review provision, the time for filing petitions for review was triggered by publication in the Federal Register, not by NHTSA’s delivery of the agency action to the Office of the Federal Register. Natural Resources Defense Council v. National Highway Traffic Safety Administration, Nos. 17-2780, 17-2806 (2d Cir. June 29, 2018).
D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay
On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had “hijacked” the court’s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, “then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.” Judge Tatel, also joined by Judge Millett, wrote that “the untenable status quo derives in large part from petitioners’ and EPA’s treatment of the Supreme Court’s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners’ legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.” Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the “circumstances as they stand today” so that the Court may “decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.” West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. June 26, 2018).
New Mexico Federal Court Ordered Analysis of Downstream Greenhouse Gas Emissions of Oil and Gas Leases
The federal district court for the District of New Mexico held that BLM failed to take a hard look at the greenhouse gas emissions and climate impacts of leases issued in 2015 for 13 parcels of federal mineral estate in the Santa Fe National Forest covering almost 20,000 acres. The court set aside the leases and remanded for additional review. The court rejected BLM’s argument that it was not required to consider downstream greenhouse gas emissions that would result from combustion of oil and gas produced from development of wells on the leased areas and the downstream emissions’ impact on climate change. The court said such impacts were required to be assessed as indirect impacts of the leases. In addition, the court said BLM must conduct a new cumulative impact analysis of greenhouse gas emissions due to the failure to consider downstream greenhouse gas emissions. The court also noted that the Intergovernmental Panel on Climate Change had updated its reports since BLM conducted its review as had the U.S. Global Change Research Program. The court said that on remand BLM should not rely on outdated scientific tools and analyses. Although the court was not persuaded by the plaintiffs’ attacks on BLM’s mitigation measure analysis, the court indicated that BLM might need to conduct a new mitigation analysis once it had calculated downstream greenhouse gas emissions and analyzed their impact. The court also found that BLM did not adequately address impacts of water use. San Juan Citizens Alliance v. U.S. Bureau of Land Management, No. 1:16-cv-00376 (D.N.M. June 14, 2018).
District Court Judge Affirmed Denial of Discovery Stay in Juliana Case; Dispositive Motions Pending
On June 29, 2018, Judge Aiken of the federal district court for the District of Oregon affirmed a magistrate judge’s denial of the federal government’s motion for a protective order and stay of all discovery in the young people’s lawsuit asserting violations of constitutional rights to a climate system capable of sustaining human life. Earlier in June, Judge Aiken denied the federal government’s motion to stay discovery pending the resolution of their objections. In this earlier order, the judge said the defendants had not clearly explained what irreparable harm they would suffer in the absence of a stay and also found that irreparable harm was not likely under the circumstances. The court also said the defendants’ concerns regarding the balance of hardships should be addressed with “specific objections to specific discovery requests, rather than by a blanket stay of all discovery.”
Several motions are pending before the court: the defendants’ motion for judgment on the pleadings (oral argument scheduled for July 18); the defendants’ motion for summary judgment (briefing to be completed by July 12); and the plaintiffs’ motion to defer consideration of the defendants’ motion for summary judgment until after the conclusion of discovery and in conjunction with trial (defendants’ opposition submitted on June 22). A narrower motion for a protective order also is still pending, but on June 27, the magistrate judge granted the plaintiffs’ unopposed motion to hold this motion in abeyance. The plaintiffs said an abeyance would permit the court to decide whether plaintiffs could seek judicial notice of documents requested in their Requests for Admission since those documents were largely public government records. The plaintiffs also indicated that the parties were working to reach agreement on substituting contention interrogatories for depositions. A status conference before the magistrate judge is scheduled for July 17, the day before the hearing on the motion for judgment on the pleadings.
On June 28, the plaintiffs filed their opposition to the motion for summary judgment. They supported their opposition with declarations by the 21 plaintiffs and by 18 experts, as well as with “hundreds of government records.” The plaintiffs also officially requested judicial notice of a number of government documents via a motion in limine. In their response opposing summary judgment, the plaintiffs said they had submitted sufficient evidence to establish Article III standing on summary judgment. They also countered the federal government’s argument that the Administrative Procedure Act provided the sole mechanism for review of their claims. In addition, the plaintiffs argued that their claims did not violate separation of powers principles. Finally, they argued that their claims did not fail as a matter of law—they pointed to evidence of material facts that the federal government disputed regarding the plaintiffs’ right to a climate system capable of sustaining human life; demonstrating the federal government put them in a position of danger in violation of the Fifth Amendment; and addressing their claim that the public trust doctrine applies to the federal government’s management of trust resources. The plaintiffs also contended that three of their Fifth Amendment claims were not at issue in the defendants’ motion: a substantive due process claim for government infringement of enumerated rights of life and property and already recognized implied rights such as rights to move freely, to family, and to personal security; a substantive due process and equal protection claim for systemic government discrimination with respect to plaintiffs’ exercise of their fundamental rights; and a substantive due process equal protection claim for government discrimination against plaintiffs as a class of children.
Other developments in the case include the U.S. solicitor general’s request for another extension of time within which it may file a petition for writ of certiorari for review of the Ninth Circuit’s denial of the U.S.’s petition for a writ of mandamus ordering dismissal of the case. The U.S. sought to extend the filing deadline from July 5 to August 6. Justice Kennedy granted an extension to August 4. Juliana v. United States, No. 6:15-cv-1517 (D. Or.).
Man Sentenced for Misuse of Funds Intended for Carbon Sequestration Study
The president and owner of a company that received federal funding for a carbon sequestration study was sentenced to 18 months in prison after he pleaded guilty to using the funds for personal use. He will also be on supervised release for three years after his release from prison and must pay a $50,000 fine and more than $2 million in restitution. United States v. Ruffatto, No. 2:16-cr-00167 (W.D. Pa. June 28, 2018).
Colorado Supreme Court Revived Challenge to Boulder Light and Power Utility
The Colorado Supreme Court ruled that the Public Service Company of Colorado’s (Xcel’s) lawsuit challenging a City of Boulder ordinance establishing a light and power utility was timely and viable. Xcel asserted that the ordinance violated the City Charter, which sets forth “metrics” that must be met for the City to have the authority to establish a utility. The Supreme Court did not weigh in on the merits of the case but directed that the case be returned to the district court for further proceedings on Xcel’s claim that the City did not satisfy the required metrics, which included a requirement of demonstrating that the utility could create a plan for reduced greenhouse gas emissions and other pollutants and increased renewable energy. City of Boulder v. Public Service Co. of Colorado, No. 16SC894 (Colo. June 18, 2018).
Delaware Court Dismissed Challenge to RGGI Regulations
A Delaware trial court dismissed an action challenging Delaware regulations implementing the Regional Greenhouse Gas Initiative and its carbon dioxide emissions trading program. The court ruled that the plaintiffs—individuals who alleged that the increased costs of carbon dioxide allowances would be reflected in their electricity bills—did not have standing because they had failed to establish any financial harm or that success in the lawsuit would result in lowering their electricity prices. The court stated: “Instead of seeking to correct an actual harm, plaintiffs are officiously meddling with Delaware’s RGGI Act.” Stevenson v. Delaware Department of Natural Resources & Environmental Control, No. S13C-12-025 RFS (Del. Super. Ct. June 26, 2018).
FERC Denied Rehearing of Natural Gas Pipeline Approval and Reasserted Limits on Consideration of Climate Impacts
A divided Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction and operation of the Mountain Valley Pipeline Project in West Virginia and Virginia and a related project that would connect to Pennsylvania. Among the arguments rejected by the majority of FERC commissioners were that FERC should have evaluated whether energy demands could be met with “non-transportation alternatives” such as energy conservation or renewable energy resources, that FERC failed to adequately analyze the climate change impacts of the end use of natural gas transported by the project, and that FERC’s consideration of climate change in the context of evaluating the public interest under Section 7 of the Natural Gas Act (NGA) was inadequate. The FERC majority said greenhouse gas emissions from the downstream use of natural gas did not fall within the definition of indirect impacts or cumulative impacts, and also concluded that the Social Cost of Carbon tool could not meaningfully inform decisions on natural gas transportation infrastructure projects under the NGA. FERC said it continued to believe the Social Cost of Carbon tool was “more appropriately used by regulators whose responsibilities are tied more directly to fossil fuel production or consumption.” Two commissioners wrote dissents, both of which were critical of FERC’s decisions to restrict its consideration of projects’ impacts on climate change. In re Mountain Valley Pipeline, LLC, No. CP 16-10-001 (FERC June 15, 2018).
California Public Utilities Commission Denied Application for New Gas Pipeline for Failure to Demonstrate Need
On June 26, 2018, the California Public Utilities Commission issued its final decision denying a certificate of public convenience and necessity for a new 47-mile natural gas pipeline to replace an existing pipeline. The proposed decision found that the applicants had failed to demonstrate a need for the project and 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.” The decision indicated that based on Commission precedent, the Commission could deny a proposed gas pipeline or transmission project based on insufficient need without completed CEQA analysis. The Commission directed that the preparation of a draft environmental impact report be halted. In re San Diego Gas & Electric Co., No. A1509013 (Cal. PUC June 26, 2018).
NEW CASES, MOTIONS, AND NOTICES
NRDC and Chemical Manufacturers Sought Supreme Court Review of Decision That Struck Down HFC Replacement Rule
Two petitions for writ of certiorari were filed in the Supreme Court seeking review of the D.C. Circuit decision striking down key components of the U.S. Environmental Protection Agency (EPA) final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) as replacements for ozone-depleting substances due to the HFCs’ high global warming potential. Both petitions were filed by parties that had intervened to defend the rule in the D.C. Circuit. One petition—filed by two chemical manufacturers that said they and their suppliers had invested more than $1 billion in creating and commercializing safer replacements for ozone-depleting substances—presented the question of whether EPA lacked authority under Section 612 of the Clean Air Act, which created the “safe alternatives policy,” to prohibit use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative “just because a company has already begun using the less-safe substitute.” The companies argued that the D.C. Circuit’s interpretation was incorrect and that the decision “eviscerated” an “immensely consequential” and “extremely effective” federal program, upended the investment-backed expectations of companies such as the petitioners, and harmed the environment. The second petition was filed by Natural Resources Defense Council (NRDC). NRDC’s petition presented the question of “[w]hether EPA has authority under Section 612 to prohibit use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before EPA placed them on the prohibited list.” NRDC also argued that the D.C. Circuit majority’s interpretation was at odds with the statute and destroyed a “core Clean Air Act program.” Honeywell International Inc. v. Mexichem Fluor, Inc., No. 17-1703 (U.S. June 25, 2018); Natural Resources Defense Council v. Mexichem Fluor, Inc., No. 18-2 (U.S. June 25, 2018).
States and NRDC Filed Lawsuits Challenging EPA Decision to Suspend Enforcement of HFC Restrictions
NRDC, 11 states, and the District of Columbia filed petitions in the D.C. Circuit Court of Appeals for review of EPA’s decision to suspend the 2015 final rule prohibiting or restricting certain uses of HFCs under the Clean Air Act’s safe alternatives policy. EPA published notice in the April 27, 2018 issue of the Federal Register that it would not apply the final rule’s listings of HFCs as “unacceptable” or as “acceptable subject to narrowed use limits” until it completed a rulemaking addressing the D.C. Circuit’s opinion vacating the portion of the final rule that required manufacturers to replace HFCs with substitutes. Natural Resources Defense Council v. Pruitt, No. 18-1172 (D.C. Cir., filed June 26, 2018); New York v. Pruitt, No. 18-1174 (D.C. Cir., filed June 26, 2018).
Second Circuit Granted Exxon’s Request to Slow Down Appeal of Dismissal of Action Against New York and Massachusetts Attorneys General
On May 31, 2018, a Second Circuit Court of Appeals motions panel granted Exxon Mobil Corporation’s (Exxon’s) motion to move Exxon’s appeal of the dismissal of its challenge to the Massachusetts and New York attorneys general climate change investigations from the expedited calendar to the regular calendar. Exxon’s opening brief is due on August 3. Exxon argued that the appeal did not meet the Second Circuit’s requirements for expedited treatment because it had been dismissed in part on res judicata grounds based on a Massachusetts state court decision declining to set aside the attorney general’s civil investigative demand. Exxon said the res judicata ruling was not for failure to state a claim and that the res judicata ruling’s complexity and novelty made it unsuitable for expedited review, as did the appeal’s raising of “novel issues with far-reaching consequences for the First Amendment’s protection against viewpoint discrimination.” Both attorneys general opposed removing the appeal from the expedited calendar. The New York attorney general said removing the appeal from the expedited calendar would “harm the public interest by prolonging the pendency of this meritless and disruptive lawsuit” and noted that failure to state a claim was the sole basis for dismissal of claims against the New York attorney general. The Massachusetts attorney general argued that there was “nothing particularly complex or novel” about the district court’s opinion, that it was a “paradigmatic case” for inclusion on the expedited docket, and that expedited appeal would serve the public interest by preserving the attorney general’s ability to conduct her investigation without further delay. Exxon Mobil Corp. v. Healey, No. 18-1170 (2d Cir.).
California Municipalities Sought to Shut Down Fossil Fuel Companies’ Appeal of Order Remanding Climate Cases to State Court
On June 6, 2018, San Mateo and Marin Counties and the City of Imperial Beach moved for partial dismissal of fossil fuel companies’ appeal of a district court order remanding to state court the municipalities’ lawsuits seeking to hold the companies’ liable for climate change damages. The municipalities argued to the Ninth Circuit that the general bar on appellate review of orders remanding cases to state court applied to six of the seven grounds for removal that the companies’ asserted. The municipalities contended that the Ninth Circuit therefore should only review the district court’s rejection of the seventh ground for removal, which was based on the federal officer removal statute. The fossil fuel companies argued that precedent on the scope of appellate review of remand orders was unclear and that the entire remand order was reviewable. The companies said removal under the federal officer removal statute was a “necessary predicate” for appellate review, but that once that predicate was satisfied, the court of appeals could review the entire order. They characterized the plaintiffs’ motion for partial dismissal as an attempt to prevent the merits panel from reaching the question of whether public nuisance claims based on alleged global warming effects necessarily arise under federal common law—a question on which two judges in the Northern District of California reached opposite answers. County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503 (9th Cir.).
Appeals Filed After Federal Court Nullified Oakland Ordinance Barring Coal Operations at Shipping Terminal
The City of Oakland and two environmental groups appealed a federal district court’s nullification of an Oakland ordinance prohibiting coal operations at a shipping terminal developed at an old army base. The court ruled that the ordinance violated the terms of the City’s agreement with the developer of the terminal. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 3:16-cv-07014 (N.D. Cal. June 13 and 19, 2018).
In Challenges to Repeal of BLM Hydraulic Fracturing Rule, Parties Keep Court Apprised of Recent Court Decisions
In the federal lawsuits in the Northern District of California challenging BLM’s repeal of the regulations governing hydraulic fracturing on federal and tribal lands, the federal defendants and California (one of the plaintiffs) each filed a notice to inform the court of recent relevant decisions in other courts. On June 4, 2018, the federal defendants notified the court of the Tenth Circuit’s denial of motions to dismiss as moot the appeals of the District of Wyoming’s 2015 decision invalidating the hydraulic fracturing rule. In September 2017, the Tenth Circuit found that the appeals were prudentially unripe because BLM was in the process of rescinding the rule. The Tenth Circuit therefore dismissed the appeals and also directed that the District of Wyoming’s 2015 decision be vacated. After BLM finalized the regulations’ repeal in December 2017 and before the Tenth Circuit’s mandate issued, North Dakota and the Ute Indian Tribe moved to have the appeals dismissed as moot to revive the District of Wyoming’s decision. On June 4, the Tenth Court denied those motions. On June 18, California notified the district court in the Northern District of California of two district court decisions—one in New York and the other in South Carolina—denying motions to transfer challenges to the Waters of the United States rule to other venues. The federal defendants in the challenge to the hydraulic fracturing rule moved in March 2018 to transfer the challenges to the District of Wyoming. California v. U.S. Bureau of Land Management, No. 4:18-cv-00521 (N.D. Cal. June 19, 2018).
New York Attorney General Asked State Court to Order Exxon to Turn Over Documents Showing How Company Accounted for Climate Change
The New York attorney general filed a motion to compel Exxon Mobil Corporation (Exxon) to produce certain documents in response to subpoenas issued by the attorney general in the investigation of Exxon’s climate change-related disclosures. The attorney general said Exxon had failed to produce cash flow spreadsheets used to make investment decisions, conduct corporate planning reviews, estimate company reserves and resource base quantities, and conduct asset impairment evaluations with respect to 26 major projects and assets “that are among the company’s largest and most at risk due to climate change.” The attorney general argued that the spreadsheets were highly relevant to whether and the extent to which Exxon incorporated a proxy cost for greenhouse gas emissions in its decision-making—which the attorney general characterized as a “key safeguard that Exxon has frequently touted.” The attorney general also said Exxon had continued to resist requests for documents provided by Exxon to the Securities and Exchange Commission (SEC) concerning impairment evaluations, reserves calculations, and climate change on the grounds of federal preemption. The attorney general argued that Exxon was precluded from arguing that SEC regulations preempted the attorney general’s investigation since the federal district court for the Southern District of New York had already rejected this claim in its March 2018 dismissing Exxon’s federal lawsuit challenging the investigation. People v. PricewaterhouseCoopers LLP, No. 451962/2016 (N.Y. Sup. Ct. June 19, 2018).
Parties Filed Appeals of California Court Ruling That Rejected CEQA Claims About Oil and Gas Ordinance’s Greenhouse Gas Impacts
In June 2018, environmental groups and an almond farm appealed a California state court ruling that largely upheld the California Environmental Quality Act review for a Kern County ordinance that the environmental groups said would authorize thousands of oil and gas wells annually without additional assessment. In March 2018, the trial court rejected, among other arguments, the environmental groups’ contention that greenhouse gas mitigation measures would not be effective. The court noted that three regulatory mitigation measures would apply and that for emissions not addressed by those measures applicants for permits could choose from three options to reduce emissions to “no net increase”: (1) verified reductions by the applicant; (2) acquisition of offset credits; and (3) inclusion in an emission reduction agreement. Because the environmental groups did not object to the effectiveness of directly reducing emissions, the court said their challenge to the remaining two options was academic. The court also said the groups did not exhaust administrative remedies, but nonetheless also concluded on the merits that substantial evidence supported the County’s determination that the “no net increase” measures would be effective. The court also found that the environmental impact report adequately disclosed and analyzed long-term impacts to climate, including greenhouse gas emissions between 2035 and 2050. An energy company also appealed the trial court’s order, which rejected the company’s contract clause, equal protection, and due process claims. Vaquero Energy v. County of Kern, Nos. BCV-15-101645, BCV-15-101666, BCV-15-101679 (Cal. Super. Ct. ruling Mar. 12, 2018 and judgment Apr. 20, 2018); King & Gardiner Farms LLC v. County of Kern, No. F077656 (Cal. Ct. App. June 11, 13, and 18, 2018).
Environmental Groups Filed New Challenge to Delta Plan in California Superior Court, Alleging Failure to Consider Climate Change Effects on Hydrology
Six environmental groups filed a lawsuit in California Superior Court challenging the Delta Stewardship Council’s approval of amendments to the Delta Plan, which is the long-term management plan for the Sacramento-San Joaquin Delta. The groups asserted that the action was in violation of the Delta Reform Act and that the Council had not complied with CEQA. The groups also asserted that the council had not complied with a 2016 judgment and writ finding that the original Delta Plan adopted in 2013 violated the Delta Reform Act. The petitioners alleged that the 2016 writ also required that the Council adopt new CEQA findings and recertify the 2013 programmatic environmental impact report (PEIR) to the extent the Council relied on it in the future. The shortcomings and failures alleged by the groups in their challenge to the 2018 amendments and PEIR include a failure to disclose and analyze climate change effects on hydrology. Friends of the River v. Delta Stewardship Council, No. 2018-80002901 (Cal. Super. Ct. May 25, 2018).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
Greenpeace Indonesia and Local Residents Challenged Granting of Environmental Permits for Expansion of Coal-Fired Power Plant
Greenpeace Indonesia and three local residents of Buleleng District, Bali challenged the Bali Governor’s granting of environmental permits for the expansion of the Celukan Bawang Coal-Fired Power Plant through Bali Governor’s Decree No.660.3 / 3985 / IV-A / DISPMPT. Plaintiffs allege that the Bali Governor violated environmental law No.32 of 2009 and international commitments under the United Nations Framework Convention on Climate Change by granting the environmental permits without consideration of the climate impacts of adding two 330 MW coal-fired units to the project. The Celukan Bawang Coal Fired Power Plant Company is a defendant intervenor in the litigation.
Nine Indonesian and international environmental groups filed an amici curiae brief in the proceeding before the Denpasar Administrative Court. They join the plaintiffs in asserting that the project does not comply with the Environmental Protection and Environmental Law No.32 of 2009 and undermines Indonesia’s international climate commitments because the Bali Governor did not conduct a comprehensive analysis of climate change impacts of the plant expansion. Greenpeace Indonesia and Others v. Bali Provincial Governor and Celukan Bawang Coal Fired Power Plant Company, 2 / G / LH / 2018 / PTUN.DPS (Denpasar Admin. Ct., filed Jan. 24, 2018; amici brief June 2018).