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 # 115.
Supreme Court Denied Stay of Young People’s Constitutional Climate Case, Saying Federal Government Could Ask Ninth Circuit to Stop Case
On November 2, 2018, the U.S. Supreme Court issued an order denying the federal government’s application for a stay of district court proceedings in the constitutional climate case brought by young plaintiffs in the District of Oregon. The Court also vacated an administrative stay granted by Chief Justice Roberts on October 19. The federal government had sought a stay pending the Court’s disposition of a petition for a writ of mandamus ordering the district court to dismiss the suit. The trial had been scheduled to start on October 29. The Court said the petition for a writ of mandamus did not have a “fair prospect” of success because the government could still seek mandamus relief in the Ninth Circuit. The Court noted that while the Ninth Circuit had denied two earlier requests for mandamus relief in this case, “the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plaintiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions.” The Supreme Court indicated that those reasons were, “to a large extent, no longer pertinent” since a 50-day trial was scheduled to begin on October 29, 2018 and had been held in abeyance only because of Chief Justice Roberts’s administrative stay. Justices Gorsuch and Thomas would have granted the stay.
Earlier in October, the district court largely denied the federal government’s dispositive motions in the case. The district court granted in part and denied in part motions for summary judgment and judgment on the pleadings. The court declined to rule for the defendants at this stage on the primary claims advanced by the plaintiffs: a “state-created danger” due process claim and a public trust claim. The court dismissed President Trump from the action (but without prejudice) and also granted summary judgment to the defendants on the plaintiffs’ Ninth Amendment claim and on an equal protection claim based on “posterity” being a suspect classification. The district court said, however, that an equal protection claim based on alleged interference with a right to a climate system capable of sustaining human life would be aided by further development of a factual record. The district court rejected arguments that the case was required to be heard under the Administrative Procedure Act; that separation of powers principles foreclosed the plaintiffs’ claims; that plaintiffs lacked standing; and that there is no right to a climate system capable of sustaining human life. The district court declined to certify its decisions for interlocutory appeal. On the same day, the district court denied the government’s motion for a stay pending Supreme Court review.
On October 12, a few days prior to the district court’s ruling on the dispositive motions and denial of the government’s motion for a stay, the government filed a third petition for writ of mandamus in the Ninth Circuit Court of Appeals, also seeking a stay of district court proceedings pending Supreme Court review. On November 2, 2018, just hours before the Supreme Court denied the government’s stay application, the Ninth Circuit Court of Appeals issued an order denying the federal government’s request. The Ninth Circuit said that Chief Justice Roberts’s granting of a stay of the litigation on October 19 rendered the government’s “non-substantive” motion moot.
Correction: The October monthly update indicated incorrectly that the trial in Juliana v. United States was expected to last two weeks. Lawyers for the parties estimated that the trial would last 50 days or 8 to 12 weeks.
In re United States, No. 18-505/18A-410 (U.S. Nov. 2, 2018); United States v. U.S. District Court for District of Oregon, No. 18-72776 (9th Cir. Nov. 2, 2018); Juliana v. United States, No. 6:15-cv-1517 (D. Or. Oct. 15, 2018). Link to case page is available here.
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Consider Appeals of D.C. Circuit Ruling That EPA Lacked Authority to Issue Rule Restricting HFCs with High Global Warming Potential
On October 9, 2018, the U.S. Supreme Court denied, without comment, petitions for writ of certiorari seeking review of the D.C. Circuit Court of Appeals’ vacating of a U.S. Environmental Protection Agency (EPA) rule that restricted the use of hydrofluorocarbon (HFC) refrigerants with high global warming potential as replacements for ozone-depleting substances. The D.C. Circuit held in August 2017 that the Clean Air Act did not provide EPA with the authority to issue the rule. Certiorari was sought by two manufacturers that had invested in alternative refrigerants and also by Natural Resources Defense Council. EPA opposed certiorari. Honeywell International Inc. v. Mexichem Fluor, Inc., Nos. 17-1703 & 18-2 (U.S. Oct. 9, 2018).
BLM Dropped Appeal of Decision Requiring More Climate Change Analysis for Oil and Gas Leases
The Tenth Circuit Court of Appeals granted the motion by the U.S. Bureau of Land Management (BLM) and other federal appellants for voluntary dismissal of their appeal of a New Mexico federal court’s decision setting aside oil and gas leases and the finding of no significant impact for the leases. The district court found that BLM’s National Environmental Policy Act (NEPA) review had not taken a hard look at impacts on climate change and greenhouse gases, or at impacts on water use. San Juan Citizens Alliance v. U.S. Bureau of Land Management, No. 18-2119 (10th Cir. Oct. 26, 2018).
Seventh Circuit Denied Rehearing of Challenge to Illinois “Zero Emission Credits” Program
On October 9, 2018, the Seventh Circuit Court of Appeals denied a petition for rehearing of its decision upholding Illinois’s “zero emission credit” (ZEC) program for nuclear power plants. The court held in September that the Federal Power Act did not preempt the ZEC program and that the program did not violate the dormant Commerce Clause. Electric Power Supply Association v. Star, No. 17-2445 (7th Cir. Oct. 9, 2018).
Connecticut Federal Court Dismissed Challenge to State’s Transfers from Clean Energy and Energy Conservation Funds
The federal district court for the District of Connecticut rejected constitutional claims against Connecticut’s governor, treasurer, and comptroller in connection with transfers of funds from Connecticut’s Energy Conservation and Load Management Fund (ECLMF) and Clean Energy Fund (CEF) to the State’s General Fund. The transfers from the funds—which receive funds from surcharges on electricity bills—were authorized by laws enacted in 2017 and 2018. The court found no basis for concluding that the contracts plaintiffs had with electric distribution companies for provision of electricity gave them any contractual rights over how the funds in the ECLMF and CEF were spent. The court also dismissed for lack of standing the plaintiffs’ claim that the transfers violated the Equal Protection Act by assessing a tax on electric distribution company customers that did not have a rational relation to a legitimate governmental purpose. The court declined to exercise jurisdiction over the plaintiffs’ state law claims. de Mejias v. Malloy, No. 3:18-CV-00817 (D. Conn. Oct. 25, 2018).
Washington Federal Court Dismissed State Official from Lawsuit Challenging Denials of Approvals for Coal Export Terminal
The federal district court for the Western District of Washington dismissed the Washington Commissioner of Public Lands from a lawsuit challenging Washington State agencies’ denials of approvals for a coal export terminal on and in the Columbia River, including denial of a request for approval of a sublease of State-owned aquatic lands. The federal court concluded that the Eleventh Amendment barred the plaintiffs from pursuing their claims against the commissioner because the relief sought “would functionally prevent Washington State’s officers from exercising their authority over Washington’s sovereign lands.” The court noted that a state forum was available to hear the plaintiffs’ challenge. Lighthouse Resources Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash. Oct. 23, 2018).
Colorado Mayor Agreed to Unblock Anti-Fracking Protesters from Official Facebook After First Amendment Suit Was Filed
Four days after two Colorado residents filed a lawsuit alleging that the City of Thornton, Colorado, and its mayor pro tem violated their First Amendment rights by barring them from posting about the dangers of hydraulic fracturing on the mayor’s official Facebook page, the parties filed a stipulation in which the mayor agreed to unblock the defendants and to refrain from blocking individuals and from deleting comments from the Facebook page during the pendency of the lawsuit. The parties agreed that comments and postings controlled by the plaintiffs “must not contain true threats and/or obscenity.” The plaintiffs had posted comments on the Facebook page that included assertions about carbon emissions and public health effects associated with oil combustion; the comments were allegedly deleted and the plaintiffs banned from future commenting. The plaintiffs asserted First Amendment claims for violations of free speech rights and the right to petition the government and for retaliation. Willmeng v. City of Thornton, No. 1:18-cv-02636 (D. Colo., filed Oct. 16, 2018 and stipulation Oct. 20, 2018).
Colorado Federal Court Found Some Shortcomings in Assessment of Greenhouse Gas Impacts in NEPA Review for Resource Management Plans
The federal district court for the District of Colorado found that BLM’s environmental review for a Resource Management Plan for the Glenwood Springs Resource Area in Colorado failed to take a hard look at indirect effects of greenhouse gas emissions from combustion of oil and gas development in the planning area. The court also found, however, that BLM “took an appropriately hard look at the cumulative climate change impacts” and that NEPA did not require BLM to perform a cost-benefit analysis to take into account the “economic downsides” of greenhouse gas emissions. In addition, the court concluded that BLM had taken a sufficiently hard look at the issues of methane emissions and impacts of oil and gas development on human health but found that it had not considered reasonable alternatives to oil and gas development. Wilderness Workshop v. U.S. Bureau of Land Management, No. 1:16-cv-01822 (D. Colo. Oct. 17, 2018).
Washington Federal Court Ordered EPA to Issue Temperature TMDL for Columbia and Lower Snake Rivers
The federal district court for the Western District of Washington found that EPA violated the Clean Water Act by failing to issue a total maximum daily load (TMDL) for temperature for the Columbia and lower Snake Rivers. The court noted that native salmon and steelhead populations in the rivers were generally suited to and dependent on cold water temperatures and that migrating fish were particularly vulnerable to warm water temperatures, with upstream migration becoming more difficult as water temperatures approached 68°F and halting altogether at 72-73°F. The court also noted that water temperature in the rivers had consistently exceeded 68°F in recent years and that “[t]emperature issues are projected to worsen as the effects of human activities and climate change continue to increase water temperatures.” The court found that a constructive submission by Washington and Oregon of “no TMDL” had occurred and that EPA had failed to undertake its mandatory duty to issue a temperature TMDL. The court gave EPA 30 days to approve or disapprove the constructive submission (but noted that the court “does not see how the EPA can approve the constructively submitted TMDL consistent with its obligations under the [Clean Water Act]”) and 30 additional days to issue a new TMDL. Columbia Riverkeeper v. Pruitt, No. 2:17-cv-00289 (W.D. Wash. Oct. 17, 2018).
Federal Court Granted King County’s Request to Stay Climate Case Against Fossil Fuel Companies; 12 States Urged Dismissal
On October 17, 2018, the federal district court for the Western District of Washington granted King County’s motion to stay proceedings in the County’s lawsuit seeking to hold fossil fuel companies liable for climate change impacts. The court ordered proceedings to be stayed until the Ninth Circuit issues a decision in San Francisco’s and Oakland’s appeals of the dismissal of their similar lawsuits. The district court found that it was “unlikely that a stay would result in any significant damage or cause any hardship to any party” and that there was “substantial overlap” between King County’s lawsuit and the San Francisco and Oakland lawsuits, “particularly with regard to how and whether state-law public nuisance claims are preempted by federal common law.” Earlier in October, 12 states—led by Indiana—filed a motion for leave to file an amicus curiae brief in support of the defendants’ motion to dismiss King County’s lawsuit. The states asserted that the “justiciability of climate change lawsuits under federal common law is an issue of extraordinary importance” to them, and that permitting adjudication of such claims “would disrupt carefully calibrated state regulatory schemes devised by politically accountable officials.” They contended that their interest was “especially strong” because the list of potential defendants is limitless” and they could themselves be future defendants. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. stay order Oct. 17, 2018 and amicus motion Oct. 3, 2018).
Federal Court Dismissed Challenge to Forest Service Project, Said Plaintiff Waived Climate Change Claims
The federal district court for the Eastern District of Washington granted summary judgment to the U.S. Forest Service (USFS) and USFS officials in a challenge to the agency’s approval of a restoration, logging, and timber sale venture in the Colville National Forest. The court found that the defendants were not arbitrary and capricious in their environmental analysis and ruled that the plaintiff abandoned and waived a number of claims in its amended complaint, including claims related to climate change. The plaintiff had alleged that the environmental assessment did not “analyze or disclose the body of science that implicates logging activities as a contributor to reduced carbon stocks in forests and increases in greenhouse gas emissions” and also that the assessment failed to provide “any credible analysis as to how realistic and achievable its forest plan” was “in the context of a rapidly changing climate.” The complaint also alleged that the environmental assessment did not address cumulative impacts of ungulates such as cattle and climate change. Alliance for the Wild Rockies v. Pena, No. 2:16-cv-00294 (E.D. Wash. Oct. 2, 2018).
Federal Court Said Endangered Species Act Claim Based on Alleged Temperature-Related Mortality of Salmonids Would Go to Trial
The federal district court for the Eastern District of California concluded that a claim that the U.S. Bureau of Reclamation (the Bureau) and holders of Sacramento River Settlement Contracts (SRS Contractors) violated the Endangered Species Act’s prohibition against taking listed species could not be resolved on motions to dismiss and for summary judgment. A coalition of environmental groups asserts that the SRS Contractors caused substantial temperature-related mortality of listed salmonids by diverting and transferring water in 2014 and 2015 without an appropriate permit. The environmental groups contend that the Bureau took listed salmonids by approving water transfers from SRS Contractors to others in 2014 and 2015. Due to failure to provide proper notice, the court dismissed the aspect of the unlawful taking claim against the Bureau that was based on a theory that the Bureau should have required one SRS Contractor to divert water from a source other than the Sacramento River. The court rejected the Bureau’s other rationales for dismissing the claim against it, including the Bureau’s argument that the claim involved wholly past agency actions. The court found that the environmental groups had presented evidence to support the assertions that conditions similar to the dry conditions in 2014 and 2015 could recur due to climate change. The court concluded that the plaintiffs had established a likelihood of future recurrence sufficient to withstand dismissal. The court also denied both the Bureau’s and the environmental groups’ motions for summary judgment. Regarding the environmental groups’ motion, the court found that the SRS Contractors’ evidence was sufficient to cast doubt on the conclusion that the Sacramento River’s temperature during 2014 and 2015 caused mortality. Natural Resources Defense Council v. Zinke, No. 1:05-cv-01207 (E.D. Cal. Sept. 28, 2018).
Federal Court Found That Water Diversions at California Dam Caused Unauthorized Take of Climate-Threatened Fish
In an Endangered Species Act citizen suit, the federal district court for the Central District of California ruled that the United Water Conservation District’s operation of the Vern Freeman Diversion Dam on the Santa Clara River resulted in authorized take of Southern California Steelhead. The court connected water diversions and operations at the dam to three types of effects that independently and cumulatively constituted take: an inadequate “fish ladder” at the dam that hinders and sometimes blocks upstream migration; the injuring and killing of steelhead as they pass through the dam’s infrastructure; and diminishment of the functioning of the downstream migration corridor. The court noted that the National Marine Fisheries Service had found that climate change was expected to increase air and water temperatures and decrease rain, potentially decreasing suitable habitat for the steelhead and that climate change was likely to exacerbate factors affecting the Southern California Steelhead’s continued existence. The court concluded that the operation and maintenance of the dam and diversion of river flows prevented the recovery of the species. The court found, however, that the plaintiffs did not establish that the defendant caused unauthorized take of flycatcher, a migratory songbird. Wishtoyo Foundation v. United Water Conservation District, No. 2:16-cv-03869 (C.D. Cal. Sept. 23, 2018).
California Appellate Court Affirmed Trial Court Judgment Barring Use of San Diego County Climate Change Guidance
The California Court of Appeal affirmed a trial court judgment barring San Diego County from using a 2016 guidance document on climate change analysis in California Environmental Quality Act (CEQA) reviews. The appellate court found that challenges to the guidance were ripe and further found that the guidance violated CEQA because the guidance’s “Efficiency Metric” established a threshold of significance that should have been adopted by ordinance, resolution, rule, or regulation and developed through a public review process. The appellate court also found that the County did not provide substantial evidence to support the guidance’s reliance on statewide data. In addition, the Court of Appeal found that the issuance of the guidance constituted piecemeal environmental review at odds with an earlier decision by the appellate court concluding that the County’s Climate Action Plan (CAP) and thresholds of significance based on the CAP were a single project subject to environmental review. Therefore, despite the County’s contention that development of a CAP and thresholds of significance were underway and on schedule, the appellate court found that the 2016 guidance violated its earlier directive. Golden Door Properties, LLC v. County of San Diego, Nos. D072406, D072433 (Cal. Ct. App. Sept. 28, 2018).
Minnesota Court Dismissed Criminal Charges Against Valve-Turner Protesters
A Minnesota trial court dismissed felony and misdemeanor charges against three climate change activists in connection with their participation in a “valve turner” pipeline protest in 2016. The Climate Defense Project, an organization assisting in the defense of the protesters, announced on October 9, 2018 that the judge dismissed the charges after the prosecution closed its case on the second day of trial. The court found that there was insufficient evidence that the defendants damaged the pipeline. The trial court had ruled in 2017 that the defendants could present a necessity defense. In 2018, the Minnesota Court of Appeals dismissed the State’s appeal of the trial court’s ruling on the necessity defense, and the Minnesota Supreme Court declined to review. The dismissal of the charges rendered the presentation of the necessity defense unnecessary. Prior to the start of the trial, the court restricted the number of expert witness the defense could call to five and required that experts testify in person. State v. Klapstein, Nos. 15-CR-16-413 et al. (Minn. Dist. Ct. Oct. 9, 2018).
Alaska Court Rejected Youth Plaintiffs’ Lawsuit Alleging State Climate and Energy Policies Violated State Constitution
The Alaska Superior Court dismissed claims brought by 16 youth plaintiffs against the State of Alaska, its governor, and State agencies alleging that the State’s climate and energy policies violated their rights under the Alaska constitution to a stable climate system. The court found that the plaintiffs’ claims for injunctive relief were indistinguishable from claims presented in an earlier case that involved two of the same plaintiffs (Kanuk v. Alaska) in which the Alaska Supreme Court determined that the claims required science- and policy-based inquiry and therefore presented non-justiciable political questions. The Superior Court also cited Kanuk in concluding that the plaintiffs’ claims for declaratory relief must be dismissed on prudential grounds because declaratory relief would not advance the plaintiffs’ interest in reducing greenhouse gas emissions. The Superior Court also upheld the Department of Environmental Conservation commissioner’s denial of a rulemaking petition to address climate change. Sinnok v. State, No. 3AN-17-09910 CI (Alaska Super. Ct. Oct. 30, 2018).
California Superior Court Upheld CEQA Review for Refinery Project
On September 21, 2018, the California Superior Court ruled against Communities for a Better Environment (CBE), an environmental justice organization, in its CEQA lawsuit challenging the South Coast Air Quality Management District’s approval of a refinery project in Los Angeles County. CBE alleged that the environmental impact report (EIR) for the refinery project masked the underlying purposes of significantly increasing the amount of crude oil at the refinery and allowing the processing of dirtier crude oil. CBE asserted that there were numerous deficiencies in the EIR, including low estimates of local air pollution and failure to disclose direct, indirect, and cumulative greenhouse gas emissions. The court found that substantial evidence supported the District’s determination that the project’s increase in crude storage capacity was not intended to and did not permit an increase in crude processing. The court also found that substantial evidence supported the EIR’s conclusions. Communities for a Better Environment v. South Coast Air Quality Management District, No. BS169841 (Cal. Super. Ct. Sept. 21, 2018).
NEW CASES, MOTIONS, AND NOTICES
New York Attorney General Filed Fraud Action Against Exxon for Alleged Misrepresentations in Climate Disclosures
On October 24, 2018, the New York attorney general filed an action alleging that Exxon Mobil Corporation (Exxon) perpetrated a “longstanding fraudulent scheme … to deceive investors and the investment community … concerning the company’s management of the risks posed to its business by climate change.” The lawsuit followed a multi-year investigation that became public after the attorney general issued an investigatory subpoena to Exxon in November 2015. In its complaint, the attorney general alleged that Exxon had made materially false and misleading representations concerning the proxy cost of carbon dioxide that it claimed to use to simulate the impact of future climate change regulations. In particular, the complaint asserted that Exxon made material misrepresentations and failed to disclose material facts concerning “(i) its use of proxy costs in its cost projections, including in investment decision-making, business planning, oil and gas reserves and resource base assessments, and impairment evaluations; (ii) its consistent application of proxy costs; (iii) its use of proxy costs in its demand and price projections; and (iv) the risks to its business posed by a two degree scenario.” The complaint asserted a securities fraud cause of action under New York’s Martin Act, as well as causes of action for persistent fraud and illegality in violation of Executive Law § 63(12), actual fraud, and equitable fraud. The relief sought includes injunctive relief, a comprehensive review of Exxon’s alleged failure to apply a consistent proxy cost and the economic and financial consequences of such failure, damages, disgorgement of amounts obtained in connection with the alleged violations of law, and restitution for investors. People of the State of New York v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct., filed Oct. 24, 2018).
Supreme Court Requested Response from Massachusetts Attorney General to Exxon Certiorari Petition for Review of Personal Jurisdiction Issue in Climate Investigation
On October 29, 2018, the U.S. Supreme Court requested a response from the Massachusetts attorney general to Exxon Mobil Corporation’s petition for writ of certiorari seeking review of the Massachusetts Supreme Judicial Court ruling that permitted the attorney general to proceed with her climate change investigation of Exxon’s marketing and sales of its products. Exxon has asked the Supreme Court to consider whether Massachusetts courts’ exercise of jurisdiction over Exxon violated due process. The attorney general must file her response by November 28. Two amicus briefs have been filed in support of Exxon’s petition—one by DRI–The Voice of the Defense Bar, which described itself in its brief as “an international organization of more than 22,000 attorneys involved in the defense of civil litigation,” and the other by the U.S. Chamber of Commerce and the National Association of Manufacturers. Exxon Mobil Corp. v. Healey, No. 18-311 (U.S. Oct. 29, 2018).
Briefing Completed in Exxon’s Second Circuit Appeal of Dismissal of Lawsuit Against State Attorneys General
Briefing was completed in Exxon Mobil Corporation’s appeal to the Second Circuit Court of Appeals of the dismissal of Exxon’s lawsuit seeking to bar—largely on constitutional grounds—investigations by the New York and Massachusetts attorneys general of Exxon’s climate change-related disclosures. On October 5, 2018, both attorneys general filed their briefs urging the Second Circuit to affirm the dismissal of the case. The New York attorney general argued that Exxon’s lawsuit was not ripe because failure to comply with its investigative subpoena would not have automatic consequences. The New York attorney general further argued that, in any event, the district court had correctly concluded that Exxon failed to adequately plead a First Amendment claim or any other claim, including Fourth Amendment, due process, conspiracy, and dormant Commerce Clause claims. The attorney general also contended that the district court had properly found that amendment of Exxon’s complaint would be futile. The Massachusetts attorney general also argued that Exxon failed to state plausible claims and also argued that Massachusetts state court decisions independently precluded Exxon’s claims. Three amicus briefs were filed in support of the attorneys general. A group of law professors with expertise in First Amendment law asserted in their amicus brief that profit-seeking companies do not have First Amendment rights to issue false or misleading statements that deceive investors or consumers. Nineteen states and the District of Columbia argued in their brief that the First Amendment did not preclude states from conducting anti-fraud investigations and securities regulation. The amici states said they had an compelling interest in maintaining their investigative and consumer protection functions and contended that immunizing misleading and deceptive statements under an overbroad reading of the First Amendment would detrimentally affect consumers, investors, and financial markets. In the third amicus brief, former Massachusetts attorneys general addressed how the Massachusetts consumer protection law operates and asserted that Exxon should not be permitted to collaterally attack an investigation in federal court that it had unsuccessfully challenged in state court. Exxon filed its reply brief on October 19, contending that its allegations established viewpoint discrimination in violation of the First Amendment and that it had also plausibly alleged other claims. Exxon contended its constitutional claims were ripe and that res judicata did not bar its claims against the Massachusetts attorney general because the company did not have a full and fair opportunity to litigate its First Amendment and other constitutional claims in state court. Exxon Mobil Corp. v. Healey, No. 18-1170 (2d Cir.).
Citing Publication of New Regulation, BLM Filed Motion to Dismiss Appeal of District Court Order Staying Obama-Era Waste Prevention Rule
On October 11, 2018, the federal government moved to dismiss appeals of a Wyoming federal court’s stay of the effectiveness the Obama administration’s Waste Prevention Rule, which regulated oil and gas development on federal and tribal lands to reduce venting, flaring, and leaks of methane. The government argued that the U.S. Bureau of Land Management’s publication on September 28, 2018 of a final rule rescinding and revising requirements of the Waste Prevention Rule rendered the appeal moot. The environmental groups and states appealing the stay order agreed that the case was moot but argued that the Tenth Circuit should vacate the stay order to prevent the district court’s “unprecedented” expansion of judicial authority to enjoin federal regulations “from spawning any legal consequences.” The appellants also contended that the Tenth Circuit should direct the district court to dismiss the underlying petitions for review challenging the Obama administration rule. On October 26, the Tenth Circuit referred the motion to dismiss to the panel assigned to consider the merits of the appeal. Briefing on the merits was completed on October 1. Wyoming v. U.S. Department of the Interior, Nos. 18-8027 & 18-8029 (10th Cir.).
Citing Threat to Religious Liberty, Religious Order Sought Supreme Court Review of Pipeline Approval
A vowed order of Roman Catholic women and individual members of the order filed a petition for writ of certiorari in the U.S. Supreme Court, seeking review of the Third Circuit Court of Appeals’ decision affirming dismissal of their Religious Freedom Restoration Act (RFRA)-based challenge to the Federal Energy Regulatory Commission’s (FERC’s) approval of a natural gas pipeline that would run through land in Pennsylvania owned by the order. The petition said the order and its members “agree with Pope Francis’s teachings that the threat of climate change, caused in large part by the intensive use of fossil fuels, represents a principal challenge facing humanity.” The petitioners asserted that the pipeline’s operation on their property “violates their deeply-held religious beliefs and conscience by forcing them to use their own land to facilitate a fossil fuel pipeline that will harm the earth.” They contended that the Third Circuit’s decision—which concluded that RFRA did not abrogate or create an exception to the Natural Gas Act’s administrative requirements and jurisdictional provisions—was not consistent with Supreme Court precedent applying RFRA. Their petition presented the questions of whether a person must “intervene in an application and follow the required administrative procedures for objecting to proposed agency action in order to prevent the government agency from later burdening her religious exercise in violation of RFRA” and whether circuit court review of an administrative agency’s order satisfies “RFRA’s guarantee to assert a claim in a judicial proceeding and obtain appropriate relief against the government.” The petitioners argued that requiring adherence to administrative review requirements foreclosed statutory rights guaranteed by RFRA and would have a significant adverse impact on protection of religious liberties. Adorers of the Blood of Christ, United States Province v. Federal Energy Regulatory Commission, No. 18-548 (U.S., filed Oct. 26, 2018).
Lawsuit Filed in Oregon Federal Court Alleging Constitutional Right to Protection of Wilderness from Climate Change
Animal Legal Defense Fund, Seeding Sovereignty (an organization that seeks to “amplify the role of indigenous knowledge for environmental justice”), “Future Generations,” and individual plaintiffs filed a lawsuit in the federal district court for the District of Oregon alleging that the federal government violated their constitutional “to be let alone free from human influence in wilderness.” The plaintiffs asked the court for a declaration that the defendants violated their constitutional rights under First, Fourth, Fifth, Fourteenth, and Ninth Amendments by causing and contributing to dangerous concentrations of greenhouse gases in the atmosphere. They asked that a special master be appointed to “facilitate the immediate review of potential Wilderness Areas for designation as a means to reduce the impacts of climate change on wilderness, in keeping with statutory mandates” and that the federal government be ordered “to prepare and implement an enforceable national remedial plan to expeditiously phase out commercial logging of old-growth forests, animal agriculture, and fossil fuel development and extraction in order to draw down greenhouse gases until the climate system has stabilized for the protection of wilderness on which Plaintiffs now and in the future will depend for the exercise of their fundamental autonomy and privacy rights.” Animal Legal Defense Fund v. United States, No. 6:18-cv-01860 (D. Or., filed Oct. 22, 2018).
Lawsuit Filed Seeking Critical Habitat Designation for Climate-Threatened Cuckoo Species
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Colorado asking the court to order the U.S. Fish and Wildlife Service to designate critical habitat for the threatened western yellow-billed cuckoo. Primary factors threatening the species include loss and degradation of habitat from altered watercourse hydrology, overgrazing, and agricultural encroachment, while climate change, pesticides, wildfires, and patch habitat pose additional threats. The western yellow-billed cuckoo was listed as threatened in 2014, but a proposed rule designating critical habitat in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming was never finalized. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:18-cv-02647 (D. Colo., filed Oct. 17, 2018).
Lawsuit Filed Challenging Forest Service Plan to Reduce Wildfire Risk in Area in California
Three environmental groups filed a lawsuit in the federal district court for the Eastern District of California challenging a U.S. Forest Service plan to reduce risks of wildfire in the Johnny O’Neil Late-Successional Old Growth Forest Reserve. The plaintiffs alleged that the project included clear-cut logging of old forests affected by wildfire, which the plaintiffs said would “increase the future risk of wildfire and compromise ecological integrity of the recovering forest.” The complaint stated that the causes of the increase in wildfires in California and other western states “are complex and include global climate change and past forest management” and that “how forests are managed after wildfire can dictate how forests function in the future: the best available science indicates that future wildfires are made worse by extensive logging that removes all of the largest fire-affected trees from an area.” The plaintiffs asserted violations of the National Forest Management Act, NEPA, and the Administrative Procedure Act. Klamath-Siskiyou Wildlands Center v. Grantham, No. 2:18-cv-01604 (E.D. Cal., filed Oct. 16, 2018).
Fossil Fuel Companies Opposed Remand of Baltimore’s and Colorado Localities’ Climate Change Lawsuits
On October 11, 2018, fossil fuel companies filed papers in Maryland federal court opposing remand of the Mayor and City Council of Baltimore’s (Baltimore’s) lawsuit seeking to hold the companies liable for the impacts of climate change. On October 12, 2018, fossil fuel company defendants in the climate change lawsuit brought by the City of Boulder, Boulder County, and San Miguel County also filed their opposition to remand. The companies argued that the claims necessarily arose under federal common law, and that even if only state-law claims were asserted, the claims necessarily raised disputed and substantial federal issues. In addition, the companies argued that the Clean Air Act and other federal statutes completely preempted the claims and that federal jurisdiction was also available pursuant to the Outer Continental Shelf Lands Act, the federal officer removal statue, federal enclave doctrine, and the bankruptcy removal statute. In the Baltimore case, the companies also argued that admiralty jurisdiction was a basis for federal jurisdiction. Mayor & City Council of Baltimore v. BP p.l.c., No. 1:18-cv-02357 (D. Md. Oct. 11, 2018); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 1:18-cv-01672 (D. Colo. Oct. 12, 2018).
Appeals Filed in Case Finding Inadequate Climate Change Analyses in NEPA Review for Powder River Basin Resource Management Plans
BLM, Wyoming, three coal mining companies, and environmental groups have appealed a Montana federal court’s decision finding that some climate change analyses for Resource Management Plans for the Powder River Basin were inadequate. The parties are appealing the court’s March 2018 opinion and order as well as its July 2018 remedy order, in which the court declined to enjoin issuance of new mineral leases and gave BLM 16 months to complete new NEPA reviews. Western Organization of Resource Councils v. U.S. Bureau of Land Management, Nos. 18-35836 et al. (9th Cir.).
Class Action Filed in California Court Alleging Misrepresentation of Recyclability of Single-Serve Coffee Pods
A California resident filed a class action complaint in California Superior Court against a company that makes single-serve “coffee pods.” The complaint alleges that the company misrepresents the recyclability of their product. The alleged negative effects of plastic waste include one climate-related allegation: “The staggering amount of plastic waste accumulating in the environment is accompanied by an array of negative side effects. … More recently, scientists have discovered that, as it degrades, plastic waste releases large amounts of methane, a powerful greenhouse gas. Thus, plastic waste is also thought to be a significant potential cause of global climate change.” The complaint asserts a breach of an express warranty, violations of the California Consumers Legal Remedies Act, and violations of California’s unfair competition law. Smith v. Keurig Green Mountain, Inc., No. RG18922722 (Cal. Super. Ct., filed Sept. 28, 2018).
Developer Challenged Denial of Rezoning Application Where City Said Stormwater Plans Needed to Account for Sea Level Rise
A developer filed a lawsuit in Virginia state court asserting that the Virginia Beach City Council unlawfully denied its application for a proposed rezoning of a 50-acre property for residential development on the grounds that the developer failed to provide a stormwater analysis that accounted for 1.5 foot sea level rise and based on other flooding concerns. The developer asserted that the defendants’ actions were arbitrary and capricious and ultra vires and that the defendants had imposed conditions on its rezoning application that violated its Equal Protection rights. Argos Properties II, LLC v. City Council for Virginia Beach, No. CL18002289-00 (Va. Cir. Ct., filed May 17, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Nonprofit Sued Polish Utility for Approving Construction of Coal-Fired Power Plant Despite Climate-Related Financial Risks
ClientEarth, a nonprofit environmental law organization and shareholder in the Polish utility Enea SA, has sued that company, seeking the annulment of a resolution consenting to construction of the €1.2bn 1GW Ostrołęka C coal-fired power plant. The claim is brought under the Polish Commercial Companies Code.
The pleading is not yet publicly available, but plaintiffs report that the lawsuit claims the consent resolution for construction of the power plant harms the economic interests of the company as a result of climate-related financial risks, including: rising carbon prices, increased competition from cheaper renewables, and the impact of EU energy reforms on state subsidies for coal power under the capacity market. On September 19, 2018, in advance of filing the pleadings, plaintiffs’ lawyers wrote to Enea stating that ClientEarth regarded “the proposed resolution, and the Management Board’s proposal of that resolution, as clearly and obviously harmful to the interests of Enea and its shareholders” and warned that Enea’s ongoing actions in relation to the plant “risk breaching board members’ fiduciary duties of due diligence and to act in the best interests of the company and its shareholders.” ClientEarth v Enea SA (Poland Regional Court in Poznań, filed Oct. 24, 2018).
German Farming Families and Greenpeace Germany Sue German Government for Backing Off Its 2020 Greenhouse Gas Emission Reduction Goals, Claiming Violation of Plaintiffs’ Constitutional Rights
Three German families and Greenpeace Germany have filed suit in the Berlin Administrative Court against the German federal government for backing off its 2020 greenhouse gas emission reduction goals in alleged violation of plaintiffs’ constitutional rights to life and health, property, and occupational freedom. The German families are organic farmers who claim they are already experiencing the impacts of climate change. The claims are brought under German and EU law.
An English summary of the pleadings released by Greenpeace reports that by the German Environmental Ministry’s own calculations, the German government will miss its climate goal to emit 40% less greenhouse gases by 2020, compared to 1990 levels (Climate Protection Program 2020). Plaintiffs allege this failure encroaches on their human rights in violation of the German Constitution, the Grundgesetz, specifically under Article 2(2) (right to life and health), Article 12(1) (occupational freedom), and Article 14(1) (right to property). They further allege that failure to meet the Climate Protection Program 2020 target violates Germany’s minimum obligations under the EU Effort Sharing Decision (406/2009/EC).
Greenpeace further reports that plaintiffs are asking for court orders determining that the Government is obliged to: 1) implement the national Climate Protection Program 2020 by updating or supplementing appropriate measures to meet the 2020 target; 2) compensate for the excess of approximately 650 million tons of CO2 equivalent between 2007 and today due to insufficient implementation of the 2020 target; and 3) supplement the national Climate Protection Program 2020 to meet the reduction targets set out in European environmental law.
This is the first climate lawsuit to refer to the recent publication of the UN’s Intergovernmental Panel on Climate Change’s (IPCC) Special Report on 1.5°C. Family Farmers and Greenpeace Germany v. German Government (Berlin Admin. Ct., filed Oct. 25, 2018).