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@gmail.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 112.
FEATURED CASE
Supreme Court, Ninth Circuit Declined Federal Government’s Requests to Halt Kids’ Climate Lawsuit
On July 30, 2018, the U.S. Supreme Court denied the federal government’s application for a stay of the young people’s climate change lawsuit pending in the federal district court for the District of Oregon, which is scheduled for trial beginning on October 29, 2018. The federal government filed its stay application after the Ninth Circuit Court of Appeals denied the government’s emergency motion for a stay pending consideration of a second petition for a writ of mandamus filed by the government on July 5, 2018. The federal government asked the Supreme Court for a stay pending the Ninth Circuit’s consideration of the mandamus petition and any further proceedings in the Supreme Court, and also requested an administrative stay pending the Court’s ruling on the stay application. Alternatively, the federal government suggested that the Supreme Court could construe its application as a petition for writ of mandamus or petition for writ of certiorari from the Ninth Circuit’s March 2018 decision denying mandamus and directly order dismissal of the action or a stay pending the resolution of the federal government’s pending dispositive motions. After the Ninth Circuit denied the government’s second mandamus petition on July 20, the federal government indicated in a letter to the Supreme Court that this alternative course of action was “even more warranted” because “nothing relevant remains to be done in the lower courts.”
The Supreme Court’s order denying the stay application said the request for relief was premature and denied the request without prejudice. The Court also noted that “[t]he breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion.” The Court said the district court “should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.” After the Supreme Court denied the stay, the government filed a notice with the district court suggesting that the Court’s order had two implications for the case. First, the government said the Court’s order was relevant to its requests that the district court certify for interlocutory appeal any denial of its dispositive motions because the Court’s order indicated that the “substantial grounds for difference of opinion” factor for interlocutory appeal was met. Second, the government said the district court should make the “prompt ruling” on the dispositive motions to which the Supreme Court referred. United States v. U.S. District Court for the District of Oregon, No. 18A65 (U.S. July 30, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. notice filed Aug. 1, 2018).
In its opinion denying the second petition for writ of mandamus without prejudice, the Ninth Circuit found that no new circumstances justified the second petition. The Ninth Circuit said the government had not satisfied the five factors for mandamus at this stage of the proceedings, and stated: “It remains the case that the issues that the government raises in its petition are better addressed through the ordinary course of litigation.” The Ninth Circuit rejected, among other arguments, the government’s contention that it would be prejudiced in a way not correctable on appeal because agency officials would have to answer questions on the topic of climate change. The Ninth Circuit characterized the government as arguing that answering such questions could constitute “agency decisionmaking,” which would require adherence to the requirements of the Administrative Procedure Act (APA). The Ninth Circuit said the government “cites no authority for the proposition that agency officials’ routine responses to discovery requests in civil litigation can constitute agency decisionmaking that would be subject to the APA.” The Ninth Circuit also again rejected the argument that proceeding with discovery and trial would violate separation of powers. The Ninth Circuit indicated that the federal government could challenge “any specific discovery order that it believes would be unduly burdensome or would threaten the separation of powers” but that “[p]reemptively seeking a broad protective order barring all discovery does not exhaust the government’s avenues of relief.” United States v. U.S. District Court for the District of Oregon, No. 18-71928 (9th Cir. emergency stay denied July 16, 2018; mandamus denied July 20, 2018).
DECISIONS AND SETTLEMENTS
Federal Court Dismissed New York City’s Lawsuit Against Fossil Fuel Companies
The federal district court for the Southern District of New York dismissed New York City’s lawsuit seeking to hold oil and gas companies liable for climate change harms. The court said federal common law governed the City’s claims because the claims were “ultimately based on the ‘transboundary’ emission of greenhouse gas emissions,” and require a uniform standard of decision. The court further concluded that the Clean Air Act displaced any federal common law claims. The court said Congress had “expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.” The court also rejected the City’s argument that if the Clean Air Act displaced their federal common laws claims, state law claims should become available. The court said such a result would be “illogical.” The court noted that the Clean Air Act regulates only domestic emissions but ruled that “to the extent the City seeks to hold Defendants liable for damages stemming from foreign greenhouse gas emissions, the City’s claims are barred by presumption against extraterritoriality and the need for judicial caution in the face of ‘serious foreign policy consequences.’” The court said litigating an action for injuries from foreign greenhouse gas emissions in federal court would “severely infringe” upon matters “within the purview of the political branches.” New York City is appealing the dismissal of its case to the Second Circuit. City of New York v. BP p.l.c., No. 18-cv-182 (S.D.N.Y. July 19, 2018).
A Month After Rejecting Oakland and San Francisco’s Climate Change Public Nuisance Claims, California Federal Court Also Concluded It Had No Personal Jurisdiction Over Four of Five Defendants
On July 27, 2018, the federal district court for the Northern District of California granted the motions of four oil and gas companies for dismissal on personal jurisdiction grounds of Oakland’s and San Francisco’s climate change public nuisance lawsuits. The court previously ruled in a June 25 order that the actions should be dismissed for failure to state a claim. In its July 27 order, the court concluded that it could not exercise specific jurisdiction over the four companies, none of which was a resident of California, because it was “manifest that global warming would have continued in the absence of all California-related activities of defendants.” Because the plaintiffs “failed to adequately link” the four companies’ alleged California activities to the alleged climate change harms such as sea level rise, they did not satisfy the “but-for” causation standard for specific jurisdiction. The court subsequently entered judgment in favor of all defendants. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. July 27, 2018).
California Federal Court Remanded Three More Municipal Climate Change Cases to State Court; Order Stayed Until Appeals of Other Remand Orders Are Resolved
The federal district court for the Northern District of California granted motions by the County of Santa Cruz, City of Santa Cruz, and City of Richmond to remand to state court their lawsuits seeking to hold fossil fuel companies liable for climate change harms. The court cited its previous remand order in cases brought by the County of San Mateo, County of Marin, and City of Imperial Beach. The court stayed the remand orders pending the outcome of appeals in those other cases. The defendants filed notices of appeal. County of Santa Cruz v. Chevron Corp., No. 5:18-cv-00450 (N.D. Cal. July 10, 2018); No. 18-16376 (9th Cir.).
Third Circuit Affirmed Dismissal of Religious Order’s Religious Freedom Restoration Act Challenge to Natural Gas Pipeline
The Third Circuit Court of Appeals affirmed the dismissal of a lawsuit filed in district court in Pennsylvania by a vowed religious order of Roman Catholic women who challenged the Federal Energy Regulatory Commission’s (FERC’s) authorization of a 200-mile natural gas pipeline that would cross the order’s property. The religious order—Adorers of the Blood of Christ (Adorers)—contended that use of their land as part of the project violated their rights under the Religious Freedom Restoration Act. The Third Circuit noted that the Adorers “followed an encyclical letter titled ‘Laudato Si’ of the Holy Father Francis on Care for our Common Home,’ written by Pope Francis” that “provides a comprehensive theological basis that, as an act of religious belief and practice, members of the Roman Catholic Church must preserve the Earth as God’s creation.” The encyclical specifically mentioned climate change as a global problem. In their lawsuit, the Adorers alleged that natural gas development would contribute to global warming in a manner contrary to their religious beliefs. The Third Circuit found that the district court did not err in concluding that it lacked subject matter jurisdiction because the Adorers had failed to raised their claim using the procedures required by the Natural Gas Act for challenges to FERC actions. Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, No. 17-3163 (3d Cir. July 25, 2018).
EPA Withdrew “No Action Assurance” for Small Manufacturers of Glider Vehicles and Kits After Environmental Groups and States Filed Lawsuits
On July 18, 2018, the D.C. Circuit Court of Appeals granted environmental groups’ request for an administrative stay of the U.S. Environmental Protection Agency’s (EPA’s) “no action assurance” memorandum that provided assurance that EPA would not seek to enforce its greenhouse gas emissions and fuel efficiency standards for trucks against small manufacturers of “glider” vehicles and kits. Eight days later and after a coalition of states filed an emergency motion for summary vacatur or a stay pending judicial review, EPA withdrew the no action assurance. A glider is a “truck that utilizes a previously owned powertrain (including the engine, the transmission, and usually the rear axle) but which has new body parts.” Emission standards for medium- and heavy-duty vehicles published in October 2016 apply to such vehicles. In November 2017, EPA proposed to repeal the emission requirements for glider vehicles, engines, and kits. On July 6, 2018, EPA issued the no action memorandum, stating that EPA intended to exercise its enforcement discretion through July 6, 2019 or the effective date of a final rule extending the compliance date applicable to small manufacturers. In the EPA administrator’s letter withdrawing the no action memorandum, he said he had concluded that application of the current standards to the glider industry “does not represent the kind of extremely unusual circumstances that support the EPA’s exercise of enforcement discretion.” Environmental Defense Fund v. EPA, No. 18-1190 (D.C. Cir., filed July 17, 2018); California v. EPA, No. 18-1192 (D.C. Cir., filed July 19, 2018).
Tenth Circuit Allowed States and Environmental Groups to Appeal Stay of Waste Prevention Rule
In June 2018, the Tenth Circuit Court of Appeals ruled that California, New Mexico, and environmental groups could appeal a Wyoming federal court’s order staying the U.S. Bureau of Land Management’s Waste Prevention Rule. The Tenth Circuit agreed with the appellants that the stay order “has the practical effect of granting an injunction,” “results in a serious, perhaps irreparable, consequence in that the environmental benefits of the Rule will not be realized,” and could be challenged only by immediate appeal. The Tenth Circuit denied, however, the appellants’ motion for a stay of the district court’s stay order. On July 30, 2018, the appellants submitted their opening brief, arguing that the district court “committed an unprecedented legal error” by enjoining the rule without concluding that the rule’s challengers had satisfied the prerequisites for such relief. They also said the district court erred by invoking its authority to stay the rule “pending review” under Section 705 of the Administrative Procedure Act but then staying the litigation, which “effectively ended that review.” In addition, the appellants said the district court had acted improperly by first concluding that prudential ripeness and mootness concerns weighed against exercising Article III jurisdiction to review the rule’s merits, and then exercising such jurisdiction to stay the rule. Wyoming v. U.S. Department of the Interior, No. 18-8027 (10th Cir. June 4, 2018).
Delaware Federal Court Dismissed Appeal of Bankruptcy Court’s Ruling Letting Power Plant’s Purchaser Off Hook For California Cap-and-Trade Obligations
The federal district court for the District of Delaware dismissed the California Air Resource Board’s appeal of a bankruptcy court ruling that held that the purchaser of a natural gas power plant owned by a company that had emerged from bankruptcy did not have successor liability for the debtor company’s pre-transfer compliance obligations under California’s cap-and-trade program. The district court concluded that the Bankruptcy Code’s “statutory mootness” provision (11 U.S.C. § 363) compelled the conclusion that the appeal was moot because reversal or modification of the bankruptcy court’s authorization of the power plant sale without the encumbrance of the compliance obligations (which amounted to approximately $63 million) would affect the validity of the facility’s sale. California Air Resources Board v. La Paloma Generating Co., No. 1:17-cv-01698 (D. Del. July 31, 2018).
Washington Federal Court Blocked Companies Challenging State’s Alleged Efforts to Thwart Coal Export Terminal from Requesting Internal Documents from Environmental Group
The federal district court for the Western District of Washington granted the Washington Environmental Council’s and others’ (WEC’s) motion for a protective order in a lawsuit brought by Lighthouse Resources, Inc. and other companies (Lighthouse) to challenge Washington State officials’ efforts to block a coal export terminal. WEC—a coalition of organizations opposed to the terminal—contested Lighthouse’s request for internal documents relating to its strategies, campaigns, plans, or policies regarding the coal export terminal. The court found that Lighthouse met the low threshold for establishing that the internal documents were relevant because such documents could support Lighthouse’s theory that WEC and the State coordinated to block the project due to their shared animus towards coal and its export. The court concluded, however, that protective relief should be granted based on First Amendment protections for freedom of association. The court found that since the project was still underway and campaigns were ongoing, requiring discovery could chill speech immediately. The court also found that the internal documents were not “highly relevant” to Lighthouse’s case and that Lighthouse had not “carefully tailored” its request “to avoid unnecessary interference with protected activities.” The court also said the risk of interference with campaigners’ associational rights was unrefuted, even if the documents produced were protected from public disclosure, given WEC’s “concern that handing over internal documents would give the proverbial fox the keys to the henhouse.” The court also found that a determination of whether the documents were otherwise unavailable would be premature. The court said it would not reach the issue of whether the discovery requests imposed an “undue burden” on WEC but indicated that it would not have granted protective relief on such grounds because WEC had not demonstrated undue burden with any specificity. Lighthouse Resources, Inc. v. Inslee, No. 3:18-CV-05005 (W.D. Wash. July 30, 2018).
North Dakota Federal Court Dismissed Dakota Access Pipeline Operators’ RICO Claims Against Dutch Foundation
The federal district court for the District of North Dakota found that Energy Transfer Equity, L.P. and Energy Transfer Partners, L.P. (Energy Transfer), the operators of the Dakota Access Pipeline (DAPL), had failed to state a Racketeer Influenced and Corrupt Organizations Act (RICO) claim against BankTrack, a Dutch not-for-profit foundation described as using “engagement and public pressure to stop banks from financing specific projects it disagrees with.” The court found that Energy Transfer’s allegations failed to state a plausible RICO claim. The court noted that BankTrack’s individual RICO predicate conduct was limited to sending letters and posting blogs for the purpose of limiting funding for DAPL. The court said this conduct was not plausibly or reasonably related to arson and violence allegedly used by unassociated groups and individuals to stop construction of DAPL. In addition, the court found that Energy Transfer did not establish that it suffered injury caused by RICO predicate conduct, that it was a “victim” of BankTrack’s alleged fraudulently induced donations, or that allegedly defamatory communications were within the zone of interests of mail and wire fraud statutes. Because the complaint’s allegations against BankTrack were insufficient to sustain RICO claims, the court also concluded that it could not exercise personal jurisdiction over BankTrack based on nationwide RICO jurisdiction or Rule 4(k)(2). In addition, the court concluded that personal jurisdiction was not established under North Dakota’s long-arm statute. Energy Transfer Equity, LP v. Greenpeace International, No. 1:17-cv-00173 (D.N.D. July 24, 2018).
Fourth Circuit Vacated EPA’s Denial of Small Refinery Exemption from Renewable Fuel Standard Program
The Fourth Circuit Court of Appeals held that EPA’s denial of an extension for a small refinery exemption from the renewable fuel standard program was arbitrary and capricious. The Fourth Circuit found that EPA relied “to an unexplained and unknown degree” on a “facially-deficient” recommendation from the U.S. Department of Energy on whether the refinery suffered disproportionate economic hardship. The court also said EPA ignored specific evidence suggesting that the prices of renewable identification numbers (RINs) had a negative effect. Ergon-West Virginia, Inc. v. EPA, No. 17-1839 (4th Cir. July 20, 2018).
Fifth Circuit Vacated Preliminary Injunction for Louisiana Oil Pipeline
In a split decision, the Fifth Circuit Court of Appeals vacated a preliminary injunction issued by a district court in Louisiana that temporarily halted construction of an oil pipeline through the Atchafalaya Basin. In March, the Fifth Circuit stayed the preliminary injunction. In the majority opinion vacating the injunction, the Fifth Circuit said the district court “misperceived” the applicable regulations and found that the Army Corps of Engineers’ analysis “vindicates its decision that an Environmental Assessment sufficed” to satisfy the Corps’ obligations under the National Environmental Policy Act and Clean Water Act. The plaintiffs’ complaint included allegations that the Corps failed to analyze climate impacts and that floodplain and coastal loss impacts had not been considered as part of the required “public interest” analysis (though these allegations were not at issue in the preliminary injunction rulings). Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, No. 18-30257 (5th Cir. July 6, 2018).
Ninth Circuit Affirmed Dismissal of Challenge to Ex-Im Bank’s Financing of Australian LNG Projects
The Ninth Circuit Court of Appeals affirmed the dismissal on standing grounds of a lawsuit challenging U.S. Export-Import Bank (Ex-Im Bank) financing of liquefied natural gas (LNG) projects in Australia. The Ninth Circuit agreed with the district court that the plaintiffs—who brought claims under the Endangered Species Act and National Historic Preservation Act—had not demonstrated that performance of procedures required by these laws would redress the alleged environmental injury. Center for Biological Diversity v. Export-Import Bank of the United States, No. 16-15946 (9th Cir. June 28, 2018).
Settlement Resolved State and Federal Challenges to Riverside County Highway Projects
The Center for Biological Diversity and other groups reached a settlement with the Riverside County Transportation Commission and the California Department of Transportation that resolved three lawsuits concerning highway projects in Riverside County. In one of the lawsuits, brought in federal court, the court in May 2017 granted summary judgment to the Federal Highway Administration and other defendants, finding, among other things, that the defendants considered a reasonable range of alternatives, including alternatives that the plaintiffs contended could have reduced greenhouse gas emissions. The plaintiffs had appealed that decision to the Ninth Circuit. The settlement agreement provided for a number of mitigation measures, including investment in solar installations at transit station parking lots, requirements to only fund zero or near-zero emission buses, analysis of rail systems to reduce vehicle miles traveled, and funding of financial incentives to increase public transit and vanpools. Center for Biological Diversity v. Federal Highway Administration, No. 17-56080 (9th Cir. settlement agreement June 29, 2018; order granting voluntary dismissal July 5, 2018).
Montana Federal Court Set Schedule for Remedial NEPA Review for Resource Management Plans, Declined to Enjoin Issuance of Mineral Leases
On July 31, 2018, the federal district court for the District of Montana issued an order setting the remedy for a deficient environmental review the court identified in a March 26, 2018 opinion. In the March opinion, the court found that the U.S. Bureau of Land Management (BLM) had not adequately analyzed climate change issues when it approved resource management plans for two field offices in the Powder River Basin. In its July 31 order, the court adopted a 16-month expedited schedule for the remedial analyses under the National Environmental Policy Act (NEPA). Because the court had already required that the federal defendants conduct remedial NEPA analyses prior to issuing any new or pending oil, gas, or coal leases in the planning areas, the court found that the plaintiffs had failed to establish the irreparable injury necessary for an order enjoining issuance of new leases. The court also declined to vacate the record of decision, which would have resulted in invalidating 12 resource management plans for millions of acres and would have caused the management plans for the areas at issue in this case to revert to plans approved in the 1980s and 1990s. The court also denied a motion by the defendants for reconsideration of a portion of its March opinion. Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 4:16-cv-00021 (D. Mont. July 31, 2018).
Environmental Groups Settled Clean Air Act Citizen Suit Against Texas Refinery; Consent Decree Would Require Funding of Electric Vehicle Projects
On July 26, 2018, two environmental groups and the owner of a refinery in Texas filed a proposed consent decree in the federal district court for the Southern District of Texas to resolve the environmental groups’ Clean Air Act citizen suit. On July 31, the court granted the parties’ joint motion for entry of the consent decree, but the effective date of the consent decree was stayed until September 14, 2018 to allow EPA and the U.S. Department of Justice to review it. The proposed consent decree requires payment of a $350,000 civil penalty as well as a $3,175,000 payment to be used for a “Vehicle Emission Reduction Fund” that will disburse grants for projects to reduce mobile source emissions in nearby communities, including for replacing vehicles with zero emission or near-zero emission vehicles and for electric vehicle infrastructure. The consent decree also requires that the defendant revise its Hurricane Shutdown and Startup Plan to minimize emission of air contaminants and to require a review of “lessons learned” as a result of any plant-wide shutdown necessitated by a hurricane. Environment America, Inc. d/b/a Environment Texas v. Pasadena Refining System, Inc., No. 4:17-cv-00660 (S.D. Tex. July 26, 2018).
Challenge to Repeal of BLM Hydraulic Fracturing Rule Will Stay in California Federal Court
The federal district court for the Northern District of California denied the federal government’s motion to transfer lawsuits challenging BLM’s repeal of 2015 regulations governing hydraulic fracturing on federal and tribal lands. The federal defendants sought to transfer the lawsuits to the District of Wyoming, where a judge heard challenges to the 2015 regulations and ultimately vacated the regulations as outside BLM’s authority. (The Tenth Circuit vacated that holding in 2017.) The California federal court concluded that although the lawsuits could have been brought in Wyoming, the balance of the transfer factors weighed against transfer. The court was not persuaded that there was a risk of judicial inconsistency or that judicial economy weighed strongly in favor of transfer. The court said that “[t]hough there are some broadly related factual subject matter areas underlying the [hydraulic fracturing] Rule and the rule rescinding it, these commonalities are unlikely to save either court considerable time.” On the other hand, plaintiffs’ choice of forum and convenience weighed against transfer. The court also granted two motions to intervene, one by the Independent Petroleum Association of America and the Western Energy Alliance, and the other by the American Petroleum Institute. The court rejected the plaintiffs’ request that the intervenors be limited to filing one joint brief. California v. U.S. Bureau of Land Management, No. 4:18-cv-00521 (N.D. Cal. July 17, 2018).
Jury Found for Property Owners Who Claimed Jetties Owned By Town of East Hampton Caused Shoreline Erosion; Town Sought Motion Judgment as Matter of Law or New Trial
On June 29, 2018, a federal jury found in favor of property owners on Montauk (on the eastern tip of New York’s Long Island) on their intentional private nuisance and trespass claims against the Town of East Hampton. The plaintiffs alleged that jetties in Lake Montauk Harbor owned by the Town have caused erosion on the shoreline of their properties, in many cases entirely stripping the properties of “invaluable beach frontage” and leaving their properties more vulnerable to storm damages. On July 30, the Town filed a motion for judgment as a matter of law or for a new trial. The Town argued that no reasonable jury could have found in the plaintiffs’ favor due to the Town’s lack of control over the jetties and an inlet to Block Island Sound, the lack of evidence of intentional conduct on the Town’s part, the lack of evidence that the jetties were the proximate cause of plaintiffs’ damages or interfered with the plaintiffs’ use and enjoyment of their properties, the lack of evidence that the jetties were unreasonable, and the lack of evidence that the Town intentionally caused water to enter the plaintiffs’ properties. The Town’s memorandum of law in support of its motion noted that the plaintiffs’ expert “could not isolate interference by the Jetties from other factors that caused erosion on the western shoreline.” The Town also noted that the expert acknowledged that sea level rise was among the factors causing erosion but did not include sea level rise as a factor in his present. Briefing on the Town’s motion was to be completed by September 7, 2018. Cangemi v. Town of East Hampton, No. 2:12-cv-03989 (E.D.N.Y. jury verdict June 29, 2018; Town’s motion July 30, 2018).
Minnesota Supreme Court Declined to Review Decision Allowing Climate Protesters to Present Necessity Defense
The Minnesota Supreme Court denied the State’s petitions for further review of a trial court’s determination that four climate change protesters could present a necessity defense. The defendants participated in a “valve turner” protest in 2016 in which they entered an oil pipeline valve station to shut off the pipeline. An intermediate appellate court dismissed the State’s appeal in April 2018. The Climate Defense Project, which represents the defendants, said the trial would include expert testimony on the science of climate change and the efficacy of nonviolent civil disobedience. State v. Klapstein, No. A17-1649, State v. Johnston, No. A17-1650, State v. Liptay, No. A17-1651, State v. Joldersman, No. A17-1652 (Minn. July 17, 2018).
California Appellate Court Upheld Analysis of Greenhouse Gas Emissions for Kern County Development Plan
In an unpublished opinion, the California Court of Appeal upheld in all but one respect Kern County’s California Environmental Quality Act (CEQA) review for a “Specific Plan” to guide future development in an area in the northeastern part of the county. The appellate court concluded the program environmental impact report’s (EIR’s) analysis of the significance of the Specific Plan’s greenhouse gas emissions was adequate at the time it was released in 2011. The court also found that the EIR’s approach to mitigating the impacts of greenhouse gas emissions was not an abuse of discretion. The one area where the court found the CEQA analysis inadequate was its formulation of air quality mitigation measures. Sierra Club v. County of Kern, No. F071133 (Cal. Ct. App. July 10, 2018).
New York Appellate Court Upheld Decision Keeping Attorney General’s Personal Emails Off Limits from FOIL Requests Related to Climate Change Investigations
The New York Appellate Division affirmed rulings against organizations that sought to compel the search of the personal email account of then-Attorney General Eric Schneiderman pursuant to New York’s Freedom of Information Law (FOIL). The organizations sought email correspondence with any of eight specified individuals that contained keywords that the organizations said related to Schneiderman’s “decision to investigate those who disagree with him on climate change and climate change policies.” The Appellate Division said the organizations failed to establish a reasonable likelihood that the personal accounts contained responsive records and also found that there was “an insufficient showing that respondent used private accounts or devices to carry out his official duties which would warrant ordering respondent’s private email account(s), text messages or other private devices be searched.” The Appellate Division also affirmed the court below’s finding that the Attorney General did not waive the right to invoke the FOIL exemption for inter- or intra-agency materials for an email message sent to the Attorney General in which a third party was included in the “cc” field and instructed to print attached materials and deliver them to the Attorney General “in the absence of any expectation that the third party would review the substance of those materials or disclose them to others.” Energy & Environmental Legal Institute v. Attorney General, No. 6819 (N.Y. App. Div. June 7, 2018).
FERC Again Said New York Department of Environmental Conservation Had Not Waived Authority to Issue Certification for Gas Pipeline
FERC denied a pipeline company’s request for rehearing of its determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the Constitution Pipeline Project. The company first submitted its application for the certification in August 2013. NYSDEC denied the water quality certification in April 2016, after twice requesting that the company withdraw and resubmit its application, with the final submission made in April 2015. FERC found that the record did not show that NYSDEC failed to act on the application outside of the one-year timeframe required by the Clean Water Act. The pipeline company said it would appeal FERC’s decision. In re Constitution Pipeline Company, LLC, No. CP18-5-001 (FERC July 19, 2018).
NEW CASES, MOTIONS, AND NOTICES
Organizations Suggested Supreme Court Might Require Parties to Explain Why Stay of Clean Power Plan Should Remain in Effect; EPA Reported That Proposal for Replacement Was Under OMB Review
On July 27, 2018, public health and environmental organizations who intervened to defend the Clean Power Plan submitted a letter to Chief Justice John Roberts “to notify the Court of developments in the underlying litigation” challenging the Clean Power Plan. The organizations indicated that D.C. Circuit judges had suggested that litigants had a continuing duty to keep the Supreme Court—which stayed the Clean Power Plan in February 2016—informed of “any development which may conceivably affect the outcome.” The organizations informed the Court that the litigation had been held in abeyance since the D.C. Circuit granted EPA’s March 2017 abeyance request. They asserted that “contrary to the premise” of the Court’s stay orders, “the litigation has come to a protracted standstill with the support of the parties that sought a stay in this Court.” The organizations indicated that “the Court may wish to require the parties to explain why the stay should continue in effect.” On July 26, EPA submitted a status report to the D.C. Circuit indicating that it had completed its review of public comments received on the advance notice of proposed rulemaking for a replacement for the Clean Power Plan and had submitted its proposed rule to the Office of Management and Budget (OMB) on July 9. EPA said the cases should remain in abeyance pending the conclusion of this “high priority” rulemaking. West Virginia v. EPA, No. 15-1363 (D.C. Cir. status report July 26, 2018), Nos. 15A773 et al. (U.S. letter July 27, 2018).
Lawsuit Filed to Challenge FERC Approval for Natural Gas Infrastructure Project in New York
A local environmental organization and a married couple filed a petition in the D.C. Circuit Court of Appeals for review of FERC’s order authorizing the New Market Project, which includes expansion of an existing natural gas compressor station on a site abutting the married couple’s farm and home in New York. The petitioners asserted that FERC arbitrarily and capriciously departed from D.C. Circuit precedent requiring FERC to evaluate greenhouse gas emissions from fossil fuel production and transportation projects. Otsego 2000 v. Federal Energy Regulatory Commission, No. 18-1188 (D.C. Cir., filed July 16, 2018).
Boulder and San Miguel Counties and City of Boulder Moved to Remand Climate Change Lawsuits to State Court
On July 30, 2018, the Boulder County Board of County Commissioners, the San Miguel County Board of County Commissioners, and the City of Boulder moved to remand their climate change lawsuit against four fossil fuel companies to state court. The defendants filed their notice of removal on June 29, 2018—almost three weeks after the plaintiffs amended their complaint to add a civil conspiracy claim. The defendants asserted a number of bases for removal, including, “[f]irst and foremost,” that the plaintiffs’ claims could only arise under federal common law due to the “uniquely federal interests” at stake, including energy, environmental, and national security policy. The additional grounds for removal asserted by the defendants included complete preemption of plaintiffs’ claims by the Clean Air Act; the necessary and unavoidable presence of disputed and substantial federal issues; federal enclave doctrine; the Outer Continental Shelf Lands Act; federal officer removal; and bankruptcy removal. The plaintiffs said they would fully brief the remand issues in accordance with a schedule ordered by the court. The plaintiffs’ brief is due on August 31, the defendants must file a response by October 12, and the plaintiffs may file a reply on or before November 12. The court denied without prejudice a motion for an indefinite continuance of discovery and initial disclosures and said the parties could re-file before a magistrate judge if they consented to magistrate judge jurisdiction. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 1:18-cv-01672 (D. Colo. July 30, 2018).
Baltimore Filed Climate Change Lawsuit Against 26 Fossil Fuel Companies; Case Removed to Federal Court
On July 20, 2018, the Mayor and City of Baltimore (Baltimore) filed an action in Maryland state court seeking to hold 26 fossil fuel companies liable for injuries resulting from climate change. Like other municipalities, Baltimore alleged that the defendants’ conduct—the production, promotion, and marketing of fossil fuel products; the simultaneous concealment of the products’ known hazards; and their “championing of anti-science campaigns”—directly and proximately cause adverse climate change impacts. The alleged injuries included more frequent and more severe storms and flooding in the city and substantial increases in average sea level, as well as heatwaves, disruptions of the hydrologic cycle (including extreme precipitation and drought), and associated public health impacts. Baltimore asserted that it was particularly vulnerable to sea level rise and flooding due to 60 miles of waterfront land and that climate change impacts already adversely affected the City’s infrastructure. Baltimore asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, and trespass, as well as a cause of action under Maryland’s Consumer Protection Act. The Chevron defendants removed the action to federal court on July 31, 2018, asserting that Baltimore’s lawsuit “calls into question longstanding decisions by the Federal Government regarding, among other things, national security, national energy policy, environmental protection, development of outer continental shelf lands, the maintenance of a national petroleum reserve, mineral extraction on federal lands (which has produced billions of dollars for the Federal Government), and the negotiation of international agreements bearing on the development and use of fossil fuels.” Chevron said the causes of action should be governed by federal common law. The defendants said the case should “be heard in this federal forum to protect the national interest by its prompt dismissal.” Mayor & City Council of Baltimore v. BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct., filed July 20, 2018); No. 1:18-cv-02357 (D. Md., removed July 31, 2018).
Rhode Island Sued Fossil Fuel Companies for Allegedly Causing Climate Change Impacts; Defendants Removed Case to Federal Court; Case to Be Heard by Same Judge Hearing Adaptation Case Against Shell
On July 2, 2018, the State of Rhode Island filed a lawsuit in state court asserting that 21 fossil fuel companies should be held liable for climate change impacts that the State has experienced and will experience in the future. Alleged harms include substantial sea level rise; more frequent and severe flooding, extreme precipitation events, and drought; and a warmer and more acidic ocean. Rhode Island asserted that the defendants were directly responsible for 182.9 gigatons of carbon dioxide emissions between 1965 and 2015, representing 14.81% of total carbon dioxide emissions during that time period. The complaint alleges that the defendants’ production, promotion, and marketing of fossil fuel products, along with their “simultaneous concealment of the known hazards of these products, and their championing of anti-science campaigns” actually and proximately caused Rhode Island’s injuries. The complaint asserts claims of public nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, impairment of public trust resources, and violations of the State Environmental Rights Act. Rhode Island seeks compensatory damages, equitable relief (including abatement of nuisances), punitive damages, disgorgement of profits, and attorneys’ fees and costs of suit. On July 13, 2018, defendant Shell Oil Products Company, LLC (Shell) removed the action to federal court. Shell asserted multiple grounds for removal, but particularly argued that the district court had federal question jurisdiction because Rhode Island’s claims should be governed by federal common law since they “implicate uniquely federal interests” such as nationwide economic development, international relations, and national security. Shell also contended that there was federal question jurisdiction because the lawsuit “necessarily raises disputed and substantial federal questions” and because federal law completely preempts Rhode Island’s claims. In addition, Shell said the district court had original jurisdiction under the Outer Continental Shelf Lands Act, the federal officer removal statute, the federal enclave doctrine, and the bankruptcy removal statute. On July 19, 2018, the case was assigned to Chief Judge William E. Smith, who determined that the case was related to Conservation Law Foundation’s lawsuit alleging that Shell violated federal environmental laws by failing to prepare its coastal facilities in Providence for climate change impacts. On July 31, 2018, the court set a schedule for a motion to remand. Rhode Island must file its motion by August 17, and briefing will be completed on October 5. Rhode Island v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct., filed July 2, 2018); No. 1:18-cv-00395 (D.R.I., removed July 13, 2018).
Fossil Fuel Companies Asked Washington Federal Court to Dismiss King County’s Climate Case
In the climate change public nuisance and trespass action filed by King County, the fossil fuel companies filed motions to dismiss on July 27, 2018. All of the companies joined in a motion to dismiss on the grounds that the County’s claims arise under federal common law and have been displaced by the Clean Air Act. They also argued for dismissal on a number of other grounds, including infringement on the foreign affairs power, Commerce Clause, Due Process and Takings Clauses, preemption by federal law, and First Amendment, as well as violation of separation of powers. In addition, the companies asserted that the County failed to state viable claims. Five of the companies filed separate motions contesting personal jurisdiction. The County’s responses to the motions are due on September 14, and the defendants must serve reply briefs by October 5. No motion for remand has been filed in this case. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. motions to dismiss July 27, 2018).
EPA and Trade Groups Moved to Dismiss Challenges to Withdrawal of Obama-Era Determination on Vehicle Emissions Standards
The U.S. Environmental Protection Agency (EPA) and auto manufacturer trade groups asked the D.C. Circuit Court of Appeals to dismiss proceedings challenging EPA’s decision to withdraw the Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles, which the Obama administration issued in January 2017. The Mid-Term Evaluation concluded that greenhouse gas emissions standards promulgated in 2012 for model year 2022-2025 light-duty vehicles should be retained. In their motions to dismiss, EPA and the trade groups argued that the proceedings were premature because they merely challenged EPA’s decision to initiate a rulemaking. EPA also argued that the petitioners—which included states, environmental groups, utilities, and a coalition of electric vehicle and other “advanced transportation” companies—did not have standing. California v. EPA, No. 18-1114 (D.C. Cir. July 10, 2018).
Parties to Appeals on State Subsidies for Nuclear Power Disagreed on Significance of FERC Order Rejecting Grid Operator’s Tariff Provisions
The plaintiffs appealing district court orders that upheld state subsidies for nuclear power plants sent letters to the Second Circuit and Seventh Circuit informing them of a June 2018 FERC order that rejected tariff provisions of PJM Interconnection, L.L.C. (PJM), which administers the wholesale capacity market in 13 states and Washington, D.C. The plaintiffs’ letters noted that FERC’s order began by stating that “the integrity and effective of the capacity market administered by [PJM] have become untenably threatened by out-of-market payments provided or required by certain states [to support] … continued operation of preferred generation resources ….” The plaintiffs asserted that the FERC order refuted the market analysis in an amicus brief filed by the United States and FERC in the Seventh Circuit (Intervenor-appellees submitted the U.S. amicus brief to the Second Circuit.) The plaintiffs’ letter to the Second Circuit stated: “This disruption of FERC, PJM, and the whole energy market is exactly why states are preempted from meddling with the wholesale market.” In the Second Circuit, New York responded that in fact FERC’s June 2018 order supported New York’s position that zero-emission credits (ZECs) were valid exercises of state authority. The function of FERC’s order, New York said, was to determine “how ZECS will affect auction prices by deciding how subsidized resources participate in PJM auctions.” Intervenor-appellees, in letters to the Second and Seventh Circuits, characterized the FERC order as a “final blow” to the plaintiffs’ case since the order “repeatedly recognizes states’ authority to subsidize, and rejects Plaintiffs’ preferred tariff changes in favor of ‘accommodat[ing]’ such subsidies.” Exelon characterized the FERC order as proposing “a market design that complements states’ choices.” Coalition for Competitive Electricity v. Zibelman, No. 17-2654 (2d Cir. July 3, 2018); Electric Power Supply Association v. Star, No. 17-2445 (7th Cir. July 3, 2018).
Non-Profit Group Sought Treasury Department Official’s Correspondence on Climate Disclosures
The Institute for Energy Research (IER)—a non-profit public policy institute—filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia against the U.S. Department of the Treasury. IER sought to compel a response to a May 31, 2018 request for certain correspondence sent over a period of time in 2017 and 2018 to or from the Director of the Office of Environment and Energy in the Department of the Treasury. The FOIA request sought correspondence that included the terms “Bloomberg task force,” “G20,” “G-20,” “TCFD,” “Task Force on Climate-Related Disclosures,” “climate risk disclosure,” or “climate financial disclosures.” Institute for Energy Research v. U.S. Department of the Treasury, No. 1:18-cv-01677 (D.D.C., filed July 17, 2018).
Environmental Groups Challenged Offshore Oil and Gas Lease Sales in Gulf of Mexico
Gulf Restoration Network, Sierra Club, and Center for Biological Diversity filed a lawsuit against Secretary of the Interior Ryan Zinke and other defendants to challenge decisions to hold offshore lease sales for oil and gas development in the Gulf of Mexico. The plaintiffs asserted that the defendants relied on “arbitrary” environmental analyses in violation of NEPA and the Administrative Procedure Act. The complaint alleges two “fundamental defects” in the NEPA analysis: (1) an “irrational reliance on the false assumptions that preexisting, safer policies would remain in place,” even though the Department of the Interior had begun to implement repeals of drilling safety regulations and reductions in royalty rates, and (2) an assumption that the same projected environmental effects would occur even if the lease sales were not held. The complaint alleged that oil and gas development in the Gulf contributes significantly to climate change through emissions emitted by exploration, development, and production operations, as well as downstream combustion. Gulf Restoration Network v. Zinke, No. 1:18-cv-01674 (D.D.C., filed July 16, 2018).
California Local Governments and Officials Filed Briefs in Appeals of Texas Court’s Order Finding Them Subject to Its Jurisdiction
In July, California cities and counties, local officials, and an outside attorney filed briefs in their appeals of a Texas state court determination that it had personal jurisdiction over the appellants in a proceeding initiated by Exxon Mobil Corporation (Exxon) to pursue pre-suit discovery. The appellants are plaintiffs (and officials and attorneys for the plaintiffs) in lawsuits seeking to hold Exxon and other fossil fuel companies liable for the companies’ contributions to climate change. Exxon sought to conduct depositions and obtain documents relating to potential claims of abuse of process, civil conspiracy, and violations of Exxon’s constitutional rights in connection with “abusive law enforcement tactics and litigation in California” that were “attempting to stifle ExxonMobil’s exercise, in Texas, of its First Amendment right to participate in the national dialogue about climate change and climate policy.” The appellants argued that there were no acts or contacts that could form a basis for a Texas state court to have personal jurisdiction over the appellants in its potential lawsuit. City of San Francisco v. Exxon Mobil Corp., No. 02-18-00106-CV (Tex. App., filed Apr. 2, 2018; appellants’ briefs July 6, 2018).
Lawsuit Filed to Challenge Arizona Ballot Initiative Requiring That 50% of Electricity Come from Renewable Sources
On July 19, 2018, eight individuals filed a lawsuit in Arizona Superior Court challenging the legal sufficiency of a constitutional amendment initiative known as the “Clean Energy for a Healthy Arizona Amendment,” which would require that electricity providers generate at least 50% of annual sales of electricity from renewable energy sources. The plaintiffs asserted that the initiative petition should not be placed on the ballot because it was circulated and submitted by an improperly registered entity that, among other things, failed to mention the California entity—Tom Steyer’s NextGen Climate Action—that the plaintiffs alleged was the actual sponsor of the initiative. The plaintiffs also contended that employment of circulators of the petition was improperly conditioned on the number of signatures obtained, that the petition lacked sufficient signatures to qualify for the ballot, and that the petition was substantively defective and circulated under false pretenses. On August 1, 2018, the court issued a ruling. The ruling reportedly said that the initiative could not be challe nged on the basis of the identity of its backers and that there would not be a line-by-line review of signatures but indicated that the challengers could proceed with their challenge on other issues. Leach v. Reagan, No. CV2018-9919 (Ariz. Super. Ct., filed July 19, 2018).
Civil Rights Leaders Challenged Greenhouse Gas Reduction Measures
A group of civil rights leaders filed a lawsuit in April 2018 in California Superior Court to challenge measures in the California Air Resources Board’s (CARB’s) 2017 Scoping Plan under the Global Warming Solutions Act of 2006. The petitioners said the measures were unlawful, unconstitutional, and would exacerbate a housing-induced poverty crisis. Their petition asserted that CARB’s “cumulative gap” reduction metric, which required a “straight line trajectory” to reach the 2030 greenhouse gas emissions reductions target, was unlawful. The petition also identified four housing measures that the petitioners alleged would be counterproductive and would disproportionately harm minorities: (1) a “standalone” vehicle miles traveled (VMT) reduction requirement, (2) a “net zero” greenhouse gas threshold for all projects subject to CEQA, (3) per-capita greenhouse gas targets for local climate action plans, and (4) “Vibrant Communities” policies that incorporate the foregoing standards. The petition asserted violations of the California Fair Employment and Housing Act, the Federal Housing Act and Department of Housing and Urban Development regulations, CEQA, the California Administrative Procedure Act, the California Health and Safety Code, and the Congestion Management Plan Law. The petitioners also asserted violations of due process and equal protection and that CARB acted outside its authority. The Two Hundred v. California Air Resources Board, No. 18CECG1494 (Cal. Super. Ct., filed Apr. 27, 2018).
Free Market Environmental Law Clinic Sued Founder for Legal Malpractice and Breach of Fiduciary Duty
A lawsuit was filed in Virginia state court in April 2018 by a professional limited liability company (Free Market Environmental Law Clinic, PLLC (Free Market)) established in 2011 that has filed a number of freedom of information law requests and related litigation related to investigations and potential investigations by state attorneys general into fossil fuel companies’ climate change disclosures. The defendant is David Schnare, the founder of Free Market. Free Market’s complaint asserted that Schnare committed legal malpractice, breached his fiduciary duty, and misappropriated funds. The complaint’s allegations included that Schnare formed Free Market as a limited liability corporation after representing to the Internal Revenue Service (IRS) that it was a non-stock corporation, and subsequently filed forms with the IRS declaring that Free Market was a proper tax-exempt organization, “despite its actual organizational structure making this untrue.” Free Market alleged that Schnare hid his errors, told different stories to different audiences, and submitted different versions of organizational documents, “as circumstances dictated.” Free Market said the conflict created by Schnare’s negligent mistakes now required it to dissolve. Free Market Environmental Law Clinic, PLLC v. Schnare, No. 2018 05436 (Va. Cir. Ct., filed Apr. 6, 2018).
New York Attorney General Urged FERC to “Disavow” New Policy on Consideration of Greenhouse Gas Emissions
The New York attorney general submitted a letter to FERC concerning its May 2018 order denying a rehearing request of it approval of natural gas facilities. The letter described FERC as announcing “a sudden and unprompted departure from FERC’s practice of evaluating the environmental impact of downstream greenhouse gas emissions from natural gas infrastructure projects, and announced a new policy of not evaluating upstream or downstream greenhouse gas emissions in the vast majority of cases.” New York contended that the denial order was “procedurally and substantively wrong” and urged FERC to “disavow” the majority opinion of the denial order and limit the determination to the instant proceeding. Delaware Riverkeeper and a number of other organizations and individuals submitted similar letters to FERC in May urging the agency to rescind its determination. Delaware Riverkeeper characterized the order as announcing FERC’s “intention to violate its legal obligations pursuant to the National Environmental Policy Act to fully and properly consider the climate changing impacts of its pipeline infrastructure decisionmaking as pertains to both the Dominion ‘New Market’ pipeline expansion project and all pipeline infrastructure projects under its jurisdiction.” In re Dominion Transmission, Inc., No. CP14-497-001 (FERC July 10, 2018).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
UK Charity Appealed Court Decision Denying Climate Case Permission to Proceed
In 2017, Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, filed a climate change lawsuit against the United Kingdom’s Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State). The claimants allege that the Secretary of State violated the Climate Change Act 2008 (the 2008 Act) and other law by failing to revise a 2050 carbon reduction target in light of new international law and scientific developments. On July 20, 2018, the High Court found the claims were not arguable and denied permission for the case to proceed. Plan B Earth appealed the decision on multiple grounds, including that the judge misinterpreted Article 2(1)(a)of the Paris Agreement. Appellants argue that the judge incorrectly read this provision to allow for a range of ambition rather than holding the UK for responsible for “[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” Accordingly, appellants further argue that the judge incorrectly found the current UK 2050 climate target compatible with the Paris Agreement due to this misinterpretation of required ambition. Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy, Claim No. CO/16/2018 (Q.B. Admin. Ct.).
