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 email@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 113.
Texas Federal Court Allowed Securities Fraud Suit to Proceed Against Exxon
The federal district court for the Northern District of Texas found that investors in Exxon Mobil Corporation (Exxon) had sufficiently pleaded claims that Exxon and certain Exxon officials made material misstatements concerning the company’s use of proxy costs for carbon in business and investment decisions. Exxon argued that the investors’ allegations that it stated a different proxy cost in public statements than it used in internal calculations were based on the investors’ confusing of two separate proxy costs—one for carbon and one for greenhouse gases—as the same proxy cost. The court concluded, however, that “[w]hether the two differing proxy cost values represent two different costs or the same cost with different values applied internally than publicly purported to be applied is a factual dispute and cannot be determined at this motion to dismiss stage.” The court also noted that the complaint alleged that Exxon had indicated to investors that it used only one proxy cost across all business units. The court also found that the plaintiffs had alleged sufficient facts to plead other material misstatements related to the condition of certain specific businesses. The court further ruled that the plaintiffs had adequately pleaded loss causation and had met the heightened scienter standard for all defendants except for Exxon’s vice president of investor relations. The allegations supporting the court’s finding that the scienter standard was met included allegations that Exxon’s management committee regularly received detailed information on carbon-related risks and proxy costs, allegations that Exxon was particularly motivated to maintain its AAA credit rating in advance of a $12 billion public debt offering, and allegations that three of the defendants signed documents filed with the Securities and Exchange Commission that allegedly contained materially misleading information. Ramirez v. Exxon Mobil Corp., No. 3:16-CV-3111 (N.D. Tex. Aug. 14, 2018).
DECISIONS AND SETTLEMENTS
Massachusetts High Court Upheld State’s Greenhouse Gas Emissions Limits for Power Plants
The Massachusetts Supreme Judicial Court held that the Massachusetts Department of Environmental Protection (MassDEP) had authority under the Global Warming Solutions Act of 2008 (GWSA) to set greenhouse gas emissions limits for the electric sector. In addition, the court rejected the argument of parties challenging the emissions limitations that the limits were arbitrary and capricious and inconsistent with the GWSA because they would actually result in increased emissions. The court also disagreed with the challengers’ reading of a sunset provision for regulations and concluded that the provision of the GWSA authorizing the emissions limits was intended to continue to apply after December 31, 2020 and to require that MassDEP promulgate new regulations to take effect after that date. New England Power Generators Association, Inc. v. Department of Environmental Protection, No. SJC-12477 (Mass. Sept. 4, 2018).
Washington State Court Said Courts Were Not Right Forum for Young Washingtonians’ Climate Advocacy
A Washington Superior Court granted the State of Washington’s motion for judgment on the pleadings in a lawsuit brought by 12 Washington residents under the age of 18 to compel the State to develop and implement an enforceable climate recovery program. The plaintiffs also asked the court to declare that the State’s policies violated their “fundamental and inalienable constitutional rights to life, liberty, property, equal protection, and a healthful and pleasant environment, including a stable climate system.” The court noted that both sides in the case “agree that climate change is an urgent problem,” but that “they disagree on what action should be taken and how quickly it must be done.” The court concluded that issues raised in the case were “quintessentially political questions that must be addressed by the legislative and executive branches of government” and that “cannot appropriately be resolved by a court.” The court indicated that while the plaintiffs had attempted to “avoid the problem of nonjusticiability” by framing a constitutional claim, there was no right to a clean environment found in the Washington State constitution. The court also found that the plaintiffs had not stated a cognizable equal protection claim based on their age. The court said it appreciated the plaintiffs’ “concerns about climate change, and their passion for and commitment to urgent action” and hoped they would not be discouraged and would continue “to help solve the problems related to climate change” by advocating before the political branches. Aji P. v. State, No. 18-2-04448-1 SEA (Wash. Super. Ct. Aug. 14, 2018).
D.C. Circuit Dismissed “Moot” Challenges to EPA’s Withdrawn “No Action Assurance” for Small Manufacturers of Glider Vehicles
The D.C. Circuit dismissed proceedings challenging the U.S. Environmental Protection Agency’s (EPA’s) now-withdrawn “No Action Assurance” memorandum in which EPA provided assurance that it would not enforce its greenhouse gas emissions and fuel efficiency standards for trucks against small manufacturers of “glider” vehicles and kits. The D.C. Circuit said the challenges were moot. The D.C. Circuit said that although “voluntary cessation of challenged activity does not moot a case,” EPA’s voluntary conduct mooted the case both because EPA said it would not provide any other no action assurance and also because the D.C. Circuit would not be able to provide any meaningful relief concerning penalties that could be imposed in potential enforcement proceedings concerning glider vehicle production while the No Action Assurance memorandum was in effect. The states and environmental groups challenging the memorandum had urged the D.C. Circuit not to dismiss on mootness grounds. The environmental groups characterized the memorandum’s withdrawal as “a shortcut by which EPA has tried to avoid judicial scrutiny of a fatally flawed agency action.” They argued that EPA had not acknowledged the illegality of the memorandum or committed to enforcing the current standards. The state petitioners argued that the challenges would not be moot at least until the 60-day period for challenging the withdrawal had passed. Environmental Defense Fund v. EPA, No. 18-1190 (D.C. Cir. Aug. 22, 2018).
Ninth Circuit Said Aspects of Decision Not to List Arctic Grayling Population Under the Endangered Species Act Were Arbitrary and Capricious
The Ninth Circuit Court of Appeals ruled that the U.S. Fish and Wildlife Service (FWS) had acted arbitrarily and capriciously in certain respects when it determined not to list the Upper Missouri River Valley distinct population segment of arctic grayling as endangered or threatened. The arctic grayling prefers cooler waters and is threatened by climate change. While the Ninth Circuit held that the FWS did not err in considering only the current range of the arctic grayling when determining whether it was in danger of extinction “in all or a significant portion of its range,” the Ninth Circuit found that the FWS acted arbitrarily and capriciously when it (1) ignored available data that a population of arctic grayling was declining; (2) arbitrarily relied on the ability of the arctic grayling to migrate to cold water refugia; and (3) failed to explain why the uncertainty of climate change favored not listing. The Ninth Circuit remanded to the FWS for reassessment of its findings. Center for Biological Diversity v. Zinke, No. 16-35866 (9th Cir. Aug. 17, 2018).
Montana Federal Court Stopped Grizzly Bear Hunt
On August 30, 2018, the federal district court for the District of Montana granted a motion for a temporary restraining order halting the hunting of grizzly bears. Plaintiffs challenging the delisting of the Greater Yellowstone Ecosystem distinct population segment of grizzly bears under the Endangered Species Act filed the motion after the court heard arguments on the merits of the case earlier in the day. The hunting season was scheduled to begin on September 1. The plaintiffs have asserted a number of problems with the FWS’s decision-making, including a failure to adequately consider the impacts of climate change on the grizzly bears. Crow Indian Tribe v. United States, No. 17-cv-89 (D. Mont. Aug. 30, 2018).
Federal Court in Maine Rejected Pipeline Operator’s Challenge to Local Law Prohibiting Crude Oil Loading at South Portland Harbor
The federal district court for the District of Maine ruled that the City of South Portland’s ordinance prohibiting the loading of crude oil onto tankers and related activities and structures did not violate the dormant Commerce Clause or the Foreign Commerce Clause. The ordinance, known as the “Clean Skies Ordinance,” was adopted after a pipeline operator (the plaintiff in this case) made plans to reverse the flow in a pipeline that extended from the harbor in South Portland to refineries in Quebec so that instead of transporting crude oil from the harbor to the refineries, the pipeline could transport crude oil from Canada to the harbor for shipment. Concerns regarding local pollution and other local impacts were raised in response to these plans, as well as concerns regarding climate change. The Clear Skies Ordinance’s stated purposes are to “encourage the most appropriate use of land throughout the municipality”; “to protect citizens and visitors from harmful effects caused by air pollutants”; “to promote a wholesome home environment”; and “to conserve natural resources.” The district court found that the ordinance did not regulate extraterritorially even if it had effects on the functions of the pipeline company’s infrastructure outside the city. The court was not persuaded by the pipeline operator’s arguments that the ordinance had an “extraterritorial purpose,” including arguments that members of the public had cited the pipeline’s potential impacts outside the city, including concerns about continued reliance on fossil fuels causing global climate change. The court said the “vast majority” of evidence regarding support of the ordinance focused on local impacts and that “[c]ourts have upheld other statutes more clearly motivated by extraterritorial concerns, as long as the regulatory effect did not control out-of-state transactions.” The court also found that the ordinance did not discriminate against interstate or foreign commerce on its face or in practical effect and that the operator had not shown that the primary purpose of the ordinance was to discriminate against such commerce. In making this finding, the court noted that while several members of the City Council had “expressed their desire to see reduced reliance on fossil fuels in the economy in general through more renewables,” they “also disclaimed an ability to accomplish that goal with an ordinance … and focused their comments on the developmental impacts within South Portland.” The court also found that the ordinance did not impose burdens on foreign or interstate commerce that were clearly excessive in relation to the putative local benefit. Finally, the court found that the ordinance did not impermissibly interfere with the federal government’s ability to speak with “one voice” when regulating commerce with foreign governments. Portland Pipe Line Corp. v. City of South Portland, No. 2:15-cv-00054-JAW (D. Me. Aug. 24, 2018).
Montana Federal Court Ordered Supplemental Environmental Review of New Route for Keystone XL Pipeline
In lawsuits challenging the presidential permit for the Keystone XL pipeline, the federal district court for the District of Montana ruled that the federal defendants must supplement the environmental impact statement to consider the impacts of an alternative route approved by the Nebraska Public Service Commission. The court concluded that the National Environmental Policy Act (NEPA) required supplementation in this situation where ongoing federal action remained and the defendants had not analyzed the alternative. The court said it would address Endangered Species Act arguments and other remaining issues in a future order. Indigenous Environmental Network v. U.S. Department of State, No. CV-17-29 (D. Mont. Aug. 15, 2018).
Colorado Federal Court Upheld New Environmental Impact Statements Related to Coal Mine Expansion
Almost four years after a Colorado federal court vacated federal actions authorizing expansion of an underground coal mine in Colorado because the defendants had failed to adequately consider greenhouse gas impacts, the court rejected challenges to the new supplemental environmental impact reviews conducted by the federal government. The supplemental environmental impact statements (SEISs) addressed an exception to the Colorado Roadless Rule that allowed road construction related to coal mining on previously protected land in the Sunset Roadless Area (the “North Fork Exception”) and lease modifications adding new lands to an existing coal mine. The court rejected the plaintiffs’ contentions that the defendants improperly refused to consider an alternative to the North Fork Exception that protected a particular roadless area and an alternative to the lease modifications requiring methane flaring, which would have reduced greenhouse gas emissions. The court also rejected arguments that the defendants failed to adequately disclose climate change impacts. First, the court found that the defendants had properly considered and provided the basis for its conclusions regarding the effects on demand for electricity of increased supply of a particular type of coal. Second, the court rejected the contention that the SEIS for the lease modifications should have included an updated social cost of carbon analysis reflecting repeal of the Clean Power Plan. The plaintiffs unsuccessfully argued that an updated SEIS was required since EPA proposed to repeal the Clean Power Plan after preparation of the SEIS for the North Fork Exception (on which the SEIS for the lease modifications relied) but prior to the finalization of the lease modifications. High Country Conservation Advocates v. U.S. Forest Service, No. 17-cv-03025 (D. Colo. Aug. 10, 2018).
Arizona Supreme Court Allowed Clean Energy Constitutional Amendment to Go on General Election Ballot
On August 29, 2018, the Arizona Supreme Court affirmed a trial court judgment allowing the “Clean Energy for a Healthy Arizona Amendment” to be placed on the general election ballot. The amendment would require that electricity providers generate at least 50% of annual sales of electricity from renewable energy sources by 2030. The plaintiffs had contested the validity of the ballot initiative and had asserted that the backers of the ballot initiative had not obtained enough valid signatures to qualify the initiative for the ballot. After a five-day trial, the court found on August 27 that the backers had gathered enough signatures to qualify for the ballot. Leach v. Reagan, No. CV-18-0230-AP/EL (Ariz. Aug. 29, 2018).
Arizona Supreme Court Declined to Step in to Halt Disclosure of Climate Scientists’ Emails
On August 29, 2018, the Arizona Supreme Court denied motions by the Arizona Board of Regents for stays of the release of emails of two climate scientists in response to a 2011 public records law request by the Energy & Environment Legal Institute (then known as the American Tradition Institute). The court also declined to accept jurisdiction of the Board of Regents’ Petition for Special Action. Board of Regents v. Court of Appeals Division Two, No. CV-18-0194-SA (Ariz. Aug. 29, 2018).
California Appellate Court Upheld Cumulative Greenhouse Gas Analysis for Timber Harvesting Plan
In an unpublished opinion, the California Court of Appeal affirmed a trial court decision upholding the California Department of Forestry and Fire Protection’s (CDF’s) approval of a timber harvesting plan. The court rejected arguments that CDF failed to meet its obligations under the California Environmental Quality Act and the Forest Practices Act to consider the plan’s cumulative impacts on greenhouse gas emissions. First, the appellate court declined to “second guess” CDF’s use of the California Air Resources Board’s Climate Change Scoping Plan (as revised in 2014) as the threshold for significance, rather than greenhouse gas emissions reductions targets for 2020 and 2050 established by executive order. Second, the Court of Appeal found that substantial evidence supported the conclusion that cumulative impacts on global warming would be insignificant. The court rejected a number of arguments attacking CDF’s analysis, including assertions that numerical calculations were required to support carbon sequestration projections, that the cumulative impacts analysis was flawed because it was based on carbon levels on the timber company’s total ownership rather than only on the land subject to the timber harvesting plan, and that CDF acted “outside the norm” by focusing on future net carbon conditions rather than on existing or short-term carbon conditions. The appellate court also rejected the argument that reversal of the trial court’s decision was required because the projections of future tree growth were not enforceable. Forest Preservation Society v. Department of Forestry & Fire Protection, No. A148182 (Cal. Ct. App. Aug. 28, 2018).
Maryland High Court Upheld Approval of Utility Acquisition That Challengers Alleged Could Harm Renewable Energy Markets
The Maryland Court of Appeals affirmed lower court decisions upholding the Maryland Public Service Commission’s (Commission’s) approval of Exelon Corporation’s acquisition of Pepco Holdings, Inc. and its utility subsidiaries. One of the issues raised on appeal concerned whether the Commission’s assessment of potential harms to renewable energy and distributed generation markets was arbitrary and capricious. The Court of Appeals found that the Commission’s findings supported its conclusion that harm to these markets was speculative. The Court of Appeals also noted that courts may consider “policy goals stated in pertinent statutes or regulations” in determining whether agency action is arbitrary and capricious. In this case, the court said relevant policy goals included combatting the threat of global warming. The court found that the Commission properly considered these issues pursuant to the legislative directive to take the public interest into account in assessing an acquisition. Maryland Office of People’s Counsel v. Maryland Public Service Commission, No. 15 (Md. Aug. 29, 2018).
Connecticut Court Upheld Variances for Rebuilding of Coastal Home, Cited Need to Prepare Homes for Sea Level Rise
A Connecticut Superior Court cited the need to accommodate sea level rise and flood hazards in a decision upholding variances for the razing and rebuilding of a cottage in the Town of Greenwich. The owners of the cottage received approvals necessary to demolish the existing nonconforming cottage, which was destroyed by Hurricane Sandy in 2012, and to construct a smaller structure. The court found that the proposed new dwelling would not substantially affect the comprehensive zoning plan, which, the court noted, addressed sea level rise through a flood hazard overlay zone. The court said this regulatory response to sea level rise was consistent with Connecticut land use jurisprudence. The court also found that substantial evidence supported both the finding that compliance with regulations would pose an unusual hardship and the finding that the new dwelling would actually decrease nonconformities. The court stated: “Simply put, the existing home—and perhaps, other storm damaged waterfront homes—cannot realistically be rebuilt or elevated and comply with the new flood regulations without some elasticity in the application of the regulations.” The court indicated that zoning regulations and rules concerning nonconforming uses had not been adopted with climate change and sea level rise in mind. The court recommended that the Connecticut legislature take action to encourage rebuilding or conforming of existing waterfront homes to comply with new building requirements and to address sea level rise. The court said such rebuilding should not depend “on the destruction of a dwelling as an antecedent.” Lauridsen Family Limited Partnership v. Zoning Board of Appeals of Town of Greenwich, No. CV-17-6080201-S (Conn. Super. Ct. July 12, 2018).
New York Court Ordered Exxon to Respond to Attorney General’s Document Requests, Interrogatory; Indicated That Investigation Should Conclude Soon
At a hearing on August 29, 2018, a New York trial court ordered Exxon to produce 14 “readily available” or “easily produceable” spreadsheets that the New York attorney general sought in its investigation into Exxon’s climate change-related disclosures (but not 12 other spreadsheets requested by the attorney general that Exxon said would require extensive work). Exxon must also respond to an interrogatory to be served by the attorney general, which the attorney general indicated would concern whether Exxon applied a directive to use an “alternate methodology” to for accounting for greenhouse gas costs to assets and businesses across the company. In addition, Exxon agreed to provide documents it had already provided to the Securities and Exchange Commission but not to the attorney general. At the outset of the hearing, the judge told the attorney general that “this cannot go on interminably” and that “you’ve been investigating for two years. So you’re either going to file a case or you’re not going to file a case.” The attorney general indicated it was coming to an end of the investigation. Exxon told the court, “If they have a theory, they should bring a case. They should either put up or shut up.” People v. PricewaterhouseCoopers LLP, No. 451962/2016 (N.Y. Sup. Ct. Aug. 29, 2018).
FERC Denied Rehearing of Authorization of PennEast Pipeline
The Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction of the PennEast Project, a 116-mile natural gas pipeline extending from Pennsylvania to New Jersey and related lateral pipelines and facilities. FERC rejected arguments that its environmental review did not adequately consider the impact of greenhouse gas emissions on climate change. FERC said its review had gone beyond what NEPA required by examining regional and national emissions to put the project’s estimated greenhouse gas emissions in context. FERC also said it had appropriately used a qualitative approach in its analysis of climate change effects. FERC reiterated its position that the social cost of carbon was not a useful tool for its NEPA reviews. Two commissioners dissented. Commissioner LaFleur said she believed the record demonstrated sufficient need for the project, but that she fundamentally disagreed with the majority’s approach to examining climate impacts. She wrote that she believed the social cost of carbon “can meaningfully inform the Commission’s decision-making to reflect the climate change impacts of an individual project.” Commissioner Glick said the order denying rehearing was “not the product of reasoned decisionmaking,” citing in particular the majority’s assertions that upstream and downstream greenhouse gas emissions were not reasonably foreseeable and that it was not required to determine whether the impact from climate change was significant. In re PennEast Pipeline Co., No. CP15-558-001 (FERC Aug. 10, 2018).
NEW CASES, MOTIONS, AND NOTICES
EPA and HFC Manufacturers Opposed Supreme Court Review of 2015 Refrigerant Replacement Rule
EPA joined manufacturers of hydrofluorocarbon (HFC) refrigerants in opposing Supreme Court review of the D.C. Circuit’s August 2017 decision striking down a 2015 EPA regulation that prohibited or restricted use of certain HFCs as replacements for ozone-depleting substances due to the HFCs’ high global warming potential. EPA told the Court that the case did not warrant Supreme Court review. EPA said that while it argued before the D.C. Circuit that it had authority to issue the 2015 regulation, it had revisited the issue and “now believes that the decision below reflects the better understanding” of the Clean Air Act provision at issue in the case. EPA said the question presented therefore was “of limited prospective importance” and also indicated that “[s]ome of petitioners’ concerns, moreover, may be addressed in an upcoming EPA rulemaking.” The HFC manufacturers argued that certiorari was not warranted because (1) the D.C. Circuit’s decision did not conflict with any decision of any court, (2) the question presented was not sufficiently important, and (3) the D.C. Circuit’s decision was correct.
Seventeen states and the District of Columbia filed an amicus brief in support of the petitioners. In addition, five of the leading U.S. manufacturers of heating, ventilation, air conditioning and commercial refrigeration (HVACR) equipment filed a brief in support of the petitioners, asserting that the D.C. Circuit’s decision had “torn up” a “well-established and reasonable path toward new, environmentally safer alternatives” and “created enormous uncertainty and associated costs.” Another HVACR equipment manufacturer that also manufactured refrigerants filed a separate brief in support of the petitioners, similarly citing the D.C. Circuit decision’s disruption of a “well-established regulatory regime.” Honeywell International Inc. v. Mexichem Fluor, Inc., Nos. 17-1703 and 18-2 (U.S.).
EPA and Clean Power Plan Challengers Asked D.C. Circuit to Continue Holding Challenges in Abeyance Until EPA Completes New Rulemaking
After EPA Acting Administrator Andrew Wheeler signed a proposed rule to replace the Clean Power Plan regulations with the “Affordable Clean Energy Rule,” EPA filed a status report in the D.C. Circuit asking that the cases challenging the Clean Power Plan “continue to be held in abeyance pending the conclusion of this high priority rulemaking.” EPA said it was committed to completing the rulemaking “as expeditiously as practicable.” The petitioners and petitioners-intervenors in the case filed a status report in support of continued abeyance. North Dakota filed a separate status report in support of continued abeyance, asserting that it would suffer unique harms if the court removed the abeyance because it was the principal proponent of an argument that the Clean Power Plan violated the Clean Air Act’s delegation to the states of authority to establish emission rate performance standards for existing power plants. North Dakota said that as a major lignite-producing coal state, it was disproportionately impacted by this “usurpation” of state authority and that its arguments on this issue “have not been emphasized by other petitioners” and “could potentially be lost if the case is remanded to the EPA.” Intervenor-respondents in the case filed a response opposing the requests for further abeyance and a motion asking the court to decide the merits of the case. West Virginia v. EPA, No. 15-1363 (D.C. Cir. Aug. 24, 2018).
Ninth Circuit Consolidated Fossil Fuel Companies’ Appeals of Remand Orders in Cases Brought by San Mateo County and Other Local Governments
The Ninth Circuit Court of Appeals granted a joint motion to consolidate appeals of district court orders remanding cases brought by California cities and counties to hold fossil fuel companies liable for allegedly causing climate change impacts. The order consolidates the fossil fuel companies appeals in the cases brought by the County of San Mateo, County of Marin, City of Imperial Beach, County of Santa Cruz, City of Santa Cruz, and City of Richmond. The order also set a briefing schedule for the consolidated appeals: the fossil fuel companies’ opening brief is due by October 22, the answering brief is due by November 21, and an optional reply brief is due 21 days after service of the answering brief. The order also referred San Mateo County, Marin County, and Imperial Beach’s motion by for partial dismissal of the appeals to the merits panel. These appellees argue that the Ninth Circuit only has jurisdiction to review the issue of removal under the federal officer removal statute. County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503, 18-16376 (9th Cir. Aug. 20, 2018).
San Francisco and Oakland Appealed Dismissal of Climate Change Nuisance Cases as Well as Denial of Remand
On August 24, 2018, San Francisco and Oakland filed notices of appeal of district court orders denying the cities’ motions to remand their climate change nuisance cases, dismissing the cases for failure to state a claim, and dismissing the cases against four oil and gas companies for lack of personal jurisdiction. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. Aug. 24, 2018); City & County of San Francisco v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. Aug. 24, 2018).
Boulder and Rhode Island Argued for Remanding Climate Change Cases to State Court; Amended Complaint and New Motions to Dismiss Filed in King County Case
On August 31, 2018, Boulder County, San Miguel County, and the City of Boulder filed a memorandum of law in the federal district court for the District of Colorado in support of their motion to remand their case seeking to hold fossil fuel companies liable for causing climate change-related damages, including increased wildfires, extreme weather, and drought. They filed the remand motion on July 30, 2018. In the memorandum of law, the plaintiffs argued that they had “filed state law claims, in state court, for harms suffered entirely in Colorado.” They argued that the well-pleaded complaint rule therefore foreclosed the fossil fuel companies’ argument that their claims were actually federal common law claims. In addition, they asserted that even if an unpled federal common law claim could be the basis for removal, federal common law did not govern their claims. The plaintiffs also argued that federal issues raised by the defendants were defenses and therefore did not create federal jurisdiction. In addition, the plaintiffs asserted that the Clean Air Act did not completely preempt their claims, and that the defendants’ other avenues for federal jurisdiction were not viable. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 1:18-cv-01672 (D. Colo. Aug. 31, 2018).
Rhode Island also moved to remand its climate change case against fossil fuel companies to state court. First, Rhode Island said the defendants’ assertion that federal common law necessarily governed its claims was an ordinary preemption defense that did not confer federal jurisdiction. The State also contested the defendants’ contention that climate change tort claims must be exclusively pleaded under federal common law and argued that its claims fell outside the scope of federal common law. The State also disputed the contentions that its claims necessarily raised substantial, disputed federal questions and that the Clean Air Act completely preempted its claims. In addition, the court argued against jurisdiction based on the Outer Continental Shelf Lands Act, enclave jurisdiction, the federal officer removal statute, bankruptcy removal provisions, and admiralty jurisdiction. Rhode Island v. Chevron Corp., No. 1:18-cv-00395 (D.R.I. Aug. 17, 2018).
On August 17, 2018, King County filed an amended complaint in its nuisance and trespass case against oil and gas companies. The amended complaint included additional allegations regarding the companies’ connections to the State of Washington. The defendants filed new motions to dismiss on August 31, both for failure to state a claim and on personal jurisdiction grounds. Briefing of the motions to dismiss will be completed by November 1, 2018. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash.).
Trade Group Asked for Detailed Status Report on Reconsideration of Medium- and Heavy-Duty Emissions Standards
A trade group challenging greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles filed a motion in the D.C. Circuit Court of Appeals asking the court to compel EPA and the National Highway Traffic Safety Administration (the Agencies) to submit a status report on its reconsideration of the standards, including a timeline for completion. The trade group said that if the Agencies could not commit to issuing a new proposed rule or announcing intent to retain the current rule within 90 days, the trade group would consider moving to lift the abeyance currently in place. The Agencies called the relief sought “not only unusual, but improper” and characterized the motion as “a bid to obtain the Agencies’ internal timelines and deliberations with the goal of rearranging their regulatory priorities to suit Petitioner’s own interests.” Truck Trailer Manufacturers Association, Inc. v. EPA, No. 16-1430 (D.C. Cir. Aug. 6, 2018).
Exxon Argued for Reversal of District Court’s Dismissal of Lawsuit Against Attorneys General; NAM, U.S. Chamber of Commerce, and 12 States Weighed in to Support Exxon
On August 3, 2018, Exxon Mobil Corporation (Exxon) filed its opening brief asking the Second Circuit Court of Appeals to reverse the dismissal of Exxon’s lawsuit challenging the constitutionality of investigations by the New York and Massachusetts attorneys general of climate change-related disclosures. Exxon argued that the district court had failed to address its viewpoint discrimination claims, which Exxon described as the “centerpiece” of its complaint. Exxon also contended that the district court had erroneously imposed an evidentiary burden on Exxon rather than accepting what Exxon argued were plausible allegations while also improperly drawing inferences favoring the attorneys general. Exxon further argued that it had adequately pleaded its claims under the Fourth Amendment, Fourteenth Amendment, and Commerce Clause regardless of whether it had adequately pleaded that the attorneys general were motivated by an improper purpose. Exxon also sought to reverse the dismissal on res judicata grounds of its claims against the Massachusetts attorney general. Exxon argued that its constitutional claims were not raised or decided in Massachusetts state court proceedings and that it had not had a full and fair opportunity to raise the claims.
Two motions were filed seeking leave to amicus briefs in support of Exxon. The National Association of Manufacturers (NAM) and U.S. Chamber of Commerce—which characterized their organizations as “two of the main representatives of the business community”—asserted that their proposed brief would be helpful “because this matter presents important and complex issues regarding the scope of a state’s power to subject private businesses to overbroad and burdensome legal investigations that chill First Amendment expression.” Twelve states, led by Texas, said they had “a direct and vital interest in the issues before the Court” because “state attorneys general possess an inherent duty to preserve their roles as evenhanded enforcers of the law.” The states argued that the New York and Massachusetts attorneys general were “embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints and that “[i]n doing so, they are violating ExxonMobil’s constitutional rights, abusing their power, and eroding public confidence in public officers.” The attorneys general’s briefs are due on October 5. Exxon Mobil Corp. v. Healey, No. 18-1170 (2d Cir. Aug. 3, 2018).
Discovery Proceeded in Juliana; Court Set October Deadlines for Pretrial Filings
In the climate change case brought by young people against the federal government in the federal district court for the District of Oregon, the plaintiffs and defendants filed a status report on August 16, 2018. The issues discussed by the parties included the status of discovery, including the defendants’ service of its expert reports on August 13. The parties also presented their positions in discovery disputes concerning, among other issues, the scheduling of depositions of the plaintiffs (which the plaintiffs asserted must be conducted during the summer before school started or be waived) and a late expert report served by the plaintiffs. At a status conference on August 16, the magistrate judge allowed the defendants’ extra time to file a rebuttal report. He also set a deadline of September 19 for the plaintiffs’ rebuttal expert reports. On August 24, the plaintiffs submitted a notice of supplemental disputed facts raised by defendants’ expert reports to support their opposition to the defendants’ motion for summary judgment, which is pending before the court after oral argument in July. The defendants’ eight expert reports were attached as exhibits to the plaintiffs’ notice. The expert reports for both the plaintiffs and the defendants are available on the case page. During a status conference on August 27, the court set a deadline of October 15 for submission of witness lists, exhibits lists, trial memoranda, objections to exhibits and motions in limine and set a pretrial conference for October 23. Juliana v. United States, No. 6:15-cv-1517 (D. Or.).
WildEarth Guardians’ Lawsuit in Montana Federal Court Alleged Federal Failure to Cause Examinations of Pipelines
WildEarth Guardians filed a lawsuit against the Secretary of Transportation, the Department of Transportation, the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the PHMSA administrator asserting that they violated the Mineral Leasing Act by failing to cause annual examinations of oil and gas pipelines and associated facilities on public lands. The complaint included allegations regarding health impacts of pipeline spills and failures as well as a catalog of recent pipeline failures in Colorado, Montana, Nevada, New Mexico, Utah, and Wyoming. The plaintiffs alleged that the spills result in both contamination on the ground and “also contribute to climate change because natural gas is primarily composed of methane[,] … a potent greenhouse gas.” WildEarth Guardians v. Chao, No. 4:18-cv-00110 (D. Mont., filed Aug. 14, 2018).
Environmental Groups Filed FOIA Lawsuit Seeking Department of Energy Documents on Alleged Efforts to “Bail Out” Coal and Nuclear Power
On August 6, 2018, Sierra Club and Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit to compel the U.S. Department of Energy (DOE) to respond to requests submitted earlier in 2018 for documents related to DOE’s alleged efforts to “undermin[e] power markets through continued efforts to bail out or otherwise preference uneconomic coal and nuclear power.” Sierra Club requested records related to (1) a March 2018 National Energy Technology Laboratory (NETL) report that plaintiffs characterized as asserting that coal-fired generation “played a critical role during a winter storm” and (2) any requests that DOE exercise its emergency authority under Section 202(c) of the Federal Power Act. EDF asked for records related to possible use of emergency authority under Section 202(c), including correspondence between certain DOE personnel and representatives of FirstEnergy Solutions Corporation (FirstEnergy), the owner of several coal and nuclear plants, and (2) correspondence between contributors to the NETL report, certain DOE personnel, and First Energy representatives. The plaintiffs alleged that in March 2018, FirstEnergy submitted a request that DOE exercise its emergency authority to provide assistance to certain coal and nuclear power plants. Sierra Club v. U.S. Department of Energy, No. 4:18-cv-04715 (D.D.C., filed Aug. 6, 2018).
Plaintiffs Sought Summary Judgment in Challenges to Resumption of Federal Coal Leasing Program
States, conservation groups, and the Northern Cheyenne Tribe filed motions for summary judgment in their lawsuits challenging the Trump administration’s resumption of the federal coal leasing program and its termination of the programmatic environmental impact review of the program. In March 2017, Secretary of the Interior Ryan Zinke issued Secretarial Order 3348, which revoked Secretarial Order 3338, issued by former Secretary of the Interior Sally Jewell in January 2016. Secretary Jewell’s order commenced the process for the programmatic review and put in place a moratorium on new federal coal leases. The plaintiffs argued that Secretary Zinke’s order was a “major federal action” that required consideration of potential environmental impacts, including climate impacts, under NEPA. The states also argued that the defendants had violated the Mineral Leasing Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act by failing to provide an reasoned explanation for the reversal of the defendants’ prior position that comprehensive review of the federal program was necessary. The conservation groups and Northern Cheyenne Tribe argued that the order violated NEPA by failing to consider impacts to the Tribe and also argued that the defendants violated their trust obligation to the Tribe. An economist who is a former co-head of the federal Interagency Working Group on Social Cost of Greenhouse Gases submitted an amicus brief to assist the court in determining whether significant new scientific information justifies requiring supplemental environmental review of the coal leasing program and whether the decision to revoke Secretary Jewell’s order was a major federal action that could significantly affect the environment. The federal defendants’ response and cross-motion for summary judgment is due on September 7. Citizens for Clean Energy v. U.S. Department of the Interior, No. 17-cv-30 (D. Mont. July 27, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
UK Charity Filed Suit Against Secretary of Transport for Supporting Expansion of Heathrow Airport
Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, has filed a climate change lawsuit against the Secretary of State for Transport Chris Grayling in regards to the expansion of Heathrow International Airport. Claimants allege that the Secretary’s national policy statement supporting the expansion of Heathrow Airport violated Section 10 of the Planning Act 2008 (the 2008 Act).
Claimants argue that since the 2008 Act requires the Secretary to pursue the objective of sustainable development and consider the desirability of mitigating and adapting to climate change, it further gives rise to implicit obligations to consider the advice of the Committee on Climate Change (the CCC), the government’s obligations under the Paris Agreement, and its commitment to review its national climate change targets in light of the Paris Agreement. Claimants maintain that the Secretary violated these implicit obligations by supporting the airport expansion without adequate consideration of the insufficiency of the current UK 2050 climate target (2050 Target), the UK’s commitments under the Paris Agreement, the CCC’s recommendations to review the 2050 Target, and government’s recent agreement to review the 2050 Target. Accordingly, they assert the Secretary’s actions were both ultra vires and irrational.
Plaintiffs additionally allege violations of Section 149 of the Equality Act 2010 and the Human Rights Act 1998. Claimants seek declaratory relief, specifically a declaration that the Secretary of State acted unlawfully in violation of section 5 of the 2008 Act. Plan B Earth v. Secretary of State for Transport, Claim No. __ (Q.B. Admin. Ct. Aug. 6, 2018).
Australian Beneficiary Brought Pension Fund to Court for Its Failure to Provide Information on Climate Business Risks and Plans to Address Those Risks
An Australian pension fund member filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia.
The plaintiff, Mark McVeigh has contributed to REST since 2013. Under the Corporations Act 2001, super fund beneficiaries are entitled to request information that they need to make an informed decision about the management and financial condition of the fund. The plaintiff requested information from REST regarding the: “(a) knowledge of REST’s Climate Change Business Risks; (b) opinion of Climate Change, the Physical Risks, the Transition Risks and REST’s Climate Change Business Risks; (c) actions responding to REST’s Climate Change Business Risks; and (d) compliance with its obligations under the Corporations Act and other law with respect to REST’s Climate Change Business Risks.” Plaintiff alleges that the information provided by REST did not fulfill its obligations and thus seeks declaratory relief that REST violated the Corporations Act by failing to disclose the requested information and an injunction requiring REST to provide that information. In the alternative, plaintiff seeks a declaration and injunction in equitable jurisdiction. McVeigh v. Retail Employees Superannuation Trust, No. NSD1333/2018 (Fed. Ct. Austl., filed July 24, 2018).
UK Charity Appealed High Court’s Denial of Permission to Proceed with Climate Suit Against the UK
In 2017, Plan B Earth filed a climate change lawsuit against the Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State). Plaintiffs alleged 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 v. Secretary of State for Business, Energy, and Industrial Strategy, Claim No. CO/16/2018 (Q.B. Admin. Ct.).