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 # 116.
FEATURED CASE
Oregon Federal District Court Stayed Young People’s Climate Case for Government to Pursue Interlocutory Appeal
On November 21, 2018, the federal district court for the District of Oregon certified for interlocutory appeal its decisions denying the governments’ dispositive motions in the case brought by youth plaintiffs claiming that the government’s actions and inaction contributing to a dangerous climate system violated their constitutional rights. The district court issued its order reversing its previous denials of the government’s requests for interlocutory appeal almost two weeks after the Ninth Circuit granted the government’s emergency motion for a stay pending the Ninth Circuit’s consideration of a petition for writ of mandamus filed by the government. The government had also filed motions in the district court for reconsideration of the denial of interlocutory appeal and for a stay. In its order certifying the case for interlocutory appeal, the district court noted that the Ninth Circuit had “invited” the district court to revisit its decision to deny interlocutory review. (The Ninth Circuit stated: “The district court is … requested to promptly resolve petitioners’ motion to reconsider the denial of the request to certify orders for interlocutory review.”) The district court also noted that although it had been “aware of federal defendants’ concerns and their interest in pursuing an interlocutory appeal” over the course of the proceedings, the court’s belief had been “that a bifurcated trial might present the most efficient course for both the parties and the judiciary.” The court said it had believed that reserving interlocutory appeal until after the liability phase would allow appellate courts the benefit of a fully developed record. The court wrote that it “stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial,” but said that it had reviewed the record and taken particular note of the Supreme Court and Ninth Circuit orders and now found “sufficient cause to revisit the question of interlocutory appeal.” The court said it therefore “exercise[d] its discretion” to certify the case for interlocutory appeal and stayed the case pending a decision by the Ninth Circuit. The district court denied the government’s motions for reconsideration and a stay as moot and stayed consideration of other pending motions.
After the district court stayed proceedings, the government told the Supreme Court and the Ninth Circuit (in submissions made in connection with its pending mandamus petitions) that it would file a petition for permission to appeal in the Ninth Circuit by December 3 and that it expected to seek dismissal of the mandamus petitions if the Ninth Circuit permitted appeal. Juliana v. United States, No. 6:15-cv-01517 (D. Or. order certifying for interlocutory appeal Nov. 21, 2018); United States v. U.S. District Court for the District of Oregon, No. 18-73014 (9th Cir. stay order Nov. 8, 2018); In re United States, No. 18-505 (U.S. government’s letter Nov. 23, 2018).
DECISIONS AND SETTLEMENTS
Federal Court Found That Approval for Keystone XL Pipeline Did Not Comply with NEPA and Administrative Procedure Act
The federal district court for the District of Montana vacated the record of decision issued for the presidential permit for the Keystone XL pipeline and enjoined further construction or operation of the pipeline until the U.S. Department of State completes supplemental environmental review. The court found that the Department of State failed to comply with the National Environmental Policy Act (NEPA) and the Administrative Procedure Act when it reversed the Obama administration’s denial of the permit without providing a reasoned explanation for disregarding the Obama administration’s factual findings concerning climate change and the U.S.’s role in contributing to and addressing climate change. The court also found that the Department had not taken the hard look required by NEPA with respect to several issues, including the effects of current low oil prices on the project’s viability and the cumulative effects of greenhouse gas emissions from the Alberta Clipper pipeline expansion project and Keystone. In response to a motion by the pipeline developer, the court said during a status conference on November 28 that the developer could begin certain preconstruction activities and deferring a final decision on other activities until parties filed their responses to the motion. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00031 (D. Mont. Nov. 8, 2018).
Federal Court Dismissed (Without Prejudice) Center for Biological Diversity Claims to Compel Submission of UNFCCC Reports
The federal district court for the District of Columbia ruled that the Center for Biological Diversity (CBD) lacked standing to compel the federal government to submit reports required by the United Nations Framework Convention on Climate Change (UNFCCC). The reports—the “national communication” and the “biennial report”—were required to be produced by January 1, 2018. The court found that CBD had not asserted an “informational injury” because it had not alleged that the UNFCCC reports were required to be made publicly available. The court also found that CBD had not succeeded in alleging an “organizational injury” based on the impact of the missed deadline on CBD’s educational and advocacy efforts. The court said CBD had made no allegation that it used its resources to counteract any harm to its interests. The court allowed CBD until December 10, 2018 to amend the complaint. Center for Biological Diversity v. U.S. Department of State, No. 18-cv-563 (D.D.C. Nov. 8, 2018).
Proposed Consent Decree for Clean Air Act Violations at Natural Gas Processing Plant Would Require Mitigation Projects That Reduce CO2e Emissions
The federal government and the owner of a natural gas processing plant in Illinois lodged a proposed consent decree in the federal district court for the Northern District of Illinois to resolve alleged violations of the Clean Air Act, Illinois law, and the plant’s permits. The alleged violations concerned fugitive emissions of volatile organic compounds (VOCs). The owner agreed to pay a $2.7 million civil penalty and to spend at least $4.5 million on pollution controls and projects to reduce VOC and nitrogen oxide (NOx) emissions. In addition, the consent decree requires the owner to implement environmental mitigation projects at locomotive switchyards at a cost of no less than $3 million. The mitigation projects will have environmental benefits including reductions in annual emissions of VOCs, NOx, particulate matter, and carbon dioxide equivalent (CO2e). A comment period on the proposed consent decree was scheduled to close on December 3, 2018. United States v. Aux Sable Liquid Products LP, No. 1:18-cv-07198 (N.D. Ill. Oct. 29, 2018).
Texas Federal Court Rejected Exxon Request for Reconsideration or Interlocutory Appeal of Decision Allowing Securities Fraud Lawsuit
The federal district court for the Northern District of Texas denied Exxon Mobil Corporation’s motion for reconsideration of the court’s August 2018 decision partially denying’s Exxon’s motion to dismiss a federal securities fraud lawsuit. The court also denied Exxon’s motion to certify its order denying the motion to dismiss for interlocutory appeal. The court ruled on August 14, 2018 that investors had adequately pleaded claims that Exxon and Exxon officials made material misstatements concerning the company’s use of proxy costs for carbon in business and investment decisions. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-3111 (N.D. Tex. Nov. 5, 2018).
New York Judge Denied Motion for Disqualification in State’s Exxon Fraud Case but Said He Would Sell All Exxon Stock; Trial Set for October 2019
On November 7, 2018, a New York State Supreme Court judge denied the New York Office of the Attorney General’s motion for judicial disqualification in the State’s fraud case against Exxon Mobil Corporation (Exxon). The attorney general argued that the case should be reassigned from the judge who had presided over the attorney general’s subpoena enforcement proceeding due to the judge’s ownership of Exxon stock. The attorney general contended that its waiver of disqualification in the earlier proceeding did not constitute a waiver in the present action. Although he denied the disqualification motion, the judge told the parties that he would divest all Exxon holdings by November 8, 2018. The attorney general’s office indicated it would not appeal the denial of the motion. On November 15, 2018, the court signed a preliminary conference order scheduling the trial to begin on October 23, 2019. People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Nov. 7, 2018).
California Superior Court Must Respond to Porter Ranch Resident’s Petition Seeking to Undo Aliso Canyon Gas Leak Guilty Plea
On November 15, 2018, the California Court of Appeal ordered the Los Angeles County Superior Court to show cause why a resident of Porter Ranch was not entitled to restitution in conjunction with Southern California Gas Company’s (SoCalGas’s) pleading guilty to failing to timely report the release of hazardous materials in connection with the gas leak at SoCalGas’s Aliso Canyon/Porter Ranch gas storage facility in October 2015. The resident had asked the Superior Court to set aside SoCalGas’s plea agreement and to award restitution to victims of the leak, but the Superior Court denied the motion. In August 2018, the Appellate Division of the Superior Court concluded that the Superior Court had not abused its discretion in concluding that the violation to which SoCalGas pleaded guilty was not causally connected to the victims’ damages. The resident subsequently filed this petition for writ of mandamus in the Court of Appeal. The Superior Court must serve its written return by December 17. Crump v. Superior Court of the State of California for the County of Los Angeles, No. B292786 (Cal. Ct. App. Nov. 15, 2018).
California Court Allowed Plaintiffs Challenging Greenhouse Gas Scoping Plan to Pursue Some Claims, Amend Others
On October 26, 2018, a California Superior Court found that a group of civil rights leaders had sufficiently alleged claims that the California Air Resources Board’s (CARB’s) Scoping Plan for reducing greenhouse gas emissions violated substantive due process and the California Clean Air Act and was ultra vires. For claims under the federal Fair Housing Act (FHA) and the California Fair Employment and Housing Act (FEHA), the court said it would not sustain CARB’s demurrer based on CARB’s argument that the Scoping Plan contained only optional recommendations; the court also found that the plaintiffs had alleged “sufficient facts to raise an inference of causation between the Scoping Plan and the alleged disparate impact on minority communities.” The court further found, however, that the FHA and FEHA claims were not ripe but allowed the plaintiffs leave to amend these claims. The court also found that the plaintiffs had failed to allege an equal protection claim or claims under the Administrative Procedure Act, but allowed leave to amend these claims as well. On November 21, 2018, the plaintiffs filed an amended complaint. The Two Hundred v. California Air Resources Board, No. 18CECG01494 (Cal. Super. Ct. Oct. 26, 2018).
Environmental Appeals Board Concluded That Conservation Groups Had Not Demonstrated Battery Storage Should Be Considered as BACT
The U.S. Environmental Protection Agency’s (EPA’s) Environmental Appeals Board (EAB) denied conservation groups’ petition seeking review of a prevention of significant deterioration (PSD) permit issued for construction and operation of a 645-megawatt combined-cycle natural gas-fired power plant in Palmdale, California. The conservation groups argued unsuccessfully that EPA had erred by rejecting battery storage (in lieu of duct burners) as a best available control technology (BACT). The groups contended that batteries would reduce carbon monoxide, nitrogen oxide, and greenhouse gas emissions. The EAB concluded that the groups failed to demonstrate that EPA clearly erred in its rejection of battery storage on the basis that the groups had not demonstrated it was technically feasible. In re Palmdale Energy, LLC, PSD Appeal No. 18-01 (EAB Oct. 23, 2018).
Minnesota Public Utilities Commission Denied Rehearing on Certificate of Need for Replacement Crude Oil Pipeline
On November 21, 2018, the Minnesota Public Utilities Commission denied petitions for rehearing of the Commission’s order granting a certificate of need for the replacement of the Enbridge Energy Line 3 crude oil pipeline. The Commission granted the certificate of need in a September 5, 2018 order, rejecting concerns raised by an administrative law judge about the replacement pipeline’s route, which would abandon the old pipeline in place. The Commission found that the consequences of granting the certificate of need would be more favorable than those of denying the certificate if the project were modified to require a removal program allowing landowners to choose to have the existing pipeline removed where feasible. In a discussion of potential climate change impacts in its September order, the Commission concluded that the project’s lifecycle greenhouse gas emissions would be “a significant consequence” but that the environmental costs did not result directly from the project but from “the continued demand for crude oil to produce refined products used by consumers.” The Commission found that record evidence did not support a conclusion that denial of the certificate of need would significantly reduce demand for crude oil. As a condition of the granting of the certificate of need, Enbridge must purchase renewable energy credits to offset the incremental increase in nonrenewable energy consumed by the project. In October 2018, the Commission also approved a pipeline routing permit. In re Enbridge Energy, L.P., No. PL-9/CN-14-916 (Minn. PUC Nov. 21, 2018).
NEW CASES, MOTIONS, AND NOTICES
Fishing Trade Group Sued Fossil Fuel Companies for Climate Change Damage
A commercial fishing industry trade group filed a lawsuit in California Superior Court seeking to hold fossil fuel companies liable for adverse climate change impacts to the ocean off the coasts of California and Oregon that resulted in “prolonged closures” of Dungeness crab fisheries. The plaintiff alleged that the companies had known for decades that use of their products could be “catastrophic” and that “only a narrow window existed” for action before consequences would be irreversible. The plaintiff asserted the companies took actions to obscure the harms and avoid regulation, while still acknowledging and planning for climate change’s consequences internally. The plaintiff contended that the companies’ actions prevented the development of alternatives that could have eased the transition to a less fossil fuel-dependent economy. The complaint contains five causes of action: nuisance, strict liability for failure to warn, strict liability for design defect, negligence, and negligent failure to warn. The plaintiff seeks compensatory damages, equitable relief including abatement of the nuisance, punitive damages, disgorgement of profits, and attorneys’ fees and costs. Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp., No. CGC-18-571285 (Cal. Super. Ct., filed Nov. 14, 2018).
Western States Petroleum Association Expected to File Certiorari Petition Seeking Review of Oregon Court’s Decision Upholding Portland’s Fossil Fuel Terminal Ban
Chief Justice John Roberts granted an application by the Western States Petroleum Association (WSPA) to extend the deadline for filing a petition for writ of certiorari seeking review of an Oregon appellate court’s determination that the City of Portland’s ban on new and expanded fossil fuel terminals did not violate the dormant Commerce Clause. The Oregon Court of Appeals entered its judgment on January 4, 2018, and the Oregon Supreme Court declined to review the ruling on July 26, 2018. WSPA must file its petition by December 21, 2018. WSPA argued that an extension of the deadline was warranted because counsel retained to prepare the petition needed time to familiarize themselves with the case and because of the importance of the issues raised. The application asserted that the Oregon appellate court’s decision was at odds with Supreme Court precedent holding that states and localities may not burden interstate commerce in a way that favors in-state interests. WSPA also contended that the case had “significant practical import” because of Portland’s “key location near important in-land transportation routes.” Western States Petroleum Association v. City of Portland, No. 18A395 (U.S. Oct. 15, 2018).
Fossil Fuel Companies Urged Ninth Circuit to Rule That Local Governments’ Climate Cases Belong in Federal Court
Fossil fuel companies filed their opening brief in their appeal of the denial of their motions to remand lawsuits brought by California local governments seeking damages and other relief for climate change impacts. As a threshold matter, the companies argued that the remand order was reviewable because one of their grounds of removal had been the federal officer removal statute, which they contended provided the Ninth Circuit with jurisdiction to review the entire remand order. Alternatively, the companies argued that the district court had made a reviewable merits determination because the court’s remand decision rested in part on the district court’s conclusion that displacement of federal common law by the Clean Air Act would leave the plaintiffs without a federal remedy. On the merits, the companies argued that the case belonged in federal court because federal common law necessarily governed climate change nuisance claims. The companies also asserted numerous alternative grounds for removal, including that the case depended on resolving “substantial, disputed federal questions relating to the extraction, processing, promotion, and consumption of global energy resources” and that the local governments’ claims were completely preempted by Clean Air Act. Other grounds for removal cited by the companies were the Outer Continental Shelf Lands Act, the federal enclave doctrine, the federal officer removal statute, the federal bankruptcy statutes, and admiralty jurisdiction. The U.S. Chamber of Commerce filed an amicus brief in support of the companies, arguing that climate change was “a national and international problem requiring a uniform, coordinated federal response” and that a “patchwork of state law tort rules would be ineffective and unadministrable.” The local governments’ answering brief is due on January 22, 2019. County of San Mateo v. Chevron Corp., No. 18-15499 (9th Cir. Nov. 21, 2018).
In Briefs to Second Circuit, New York City and Amicus Parties Argued for Revival of City’s Climate Change Case Against Oil and Gas Companies
In November 2018, New York City and amicus parties filed briefs urging the Second Circuit Court of Appeals to reverse the dismissal of the City’s lawsuit seeking to hold oil and gas companies liable for the adverse impacts of climate change. New York City argued that “long-established” common law causes of action under New York law provided a means of reallocating the costs imposed by the companies’ lawful economic activity. New York City also argued that its allegations did not present “one of the extraordinary cases where state law must be displaced by federal common law”; that the Clean Air Act did not bar the City’s common law claims; and that the district court’s concerns regarding separation of powers and the president’s ability to conduct foreign policy in the area of climate were “misplaced.” Five amicus briefs were filed in support of New York City. Local government associations filed a brief arguing that state law claims were available to address local climate change harms. Environmental justice groups based in New York City submitted a brief to demonstrate to the court “that climate change, while experienced globally, is a problem with very local effects, especially on the City’s low-income communities and communities of color.” A group of conflict of laws and foreign relations law scholars contended that the district court had erred in applying the “presumption against territoriality” to common law claims; they asserted that the applicable conflict-of-laws rules would call for application of New York law. The legal scholars also argued that “judicial caution” did not provide a basis for limiting the geographic scope of New York law and that foreign affairs preemption did not apply. New York State, seven other states, and the District of Columbia submitted a brief asserting that the district court’s reasoning was inconsistent with states’ authority to address environmental harms; the brief described state and local climate mitigation and adaptation efforts. The states’ brief also echoed the City’s arguments that the City’s claims were not displaced by federal common law or barred by the Clean Air Act. A professor with expertise in the areas of torts, products liability, and administrative law filed a brief arguing that the application of nuisance law in this case was “nothing extraordinary” but instead represented “a natural extension of longstanding theoretical and doctrinal principles of tort law.” The defendants-appellees’ brief is due on February 7, 2019. City of New York v. BP p.l.c., No. 18-2188 (2d Cir.).
D.C. Circuit Merits Panel Will Hear EPA and Trade Groups’ Arguments for Dismissal of Lawsuits Challenging Withdrawal of Obama-Era Determination That Vehicle Greenhouse Gas Standards Remained Appropriate
In cases challenging EPA’s decision to withdraw its Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles, the D.C. Circuit Court of Appeals referred EPA and trade group motions to dismiss to the merits panel and directed the parties to address the issues presented in the motions to dismiss in their briefs rather than incorporating their arguments by reference. EPA issued the Mid-Term Evaluation in January 2017, just before President Trump took office. The Mid-Term Evaluation concluded that the 2022-2025 standards remained appropriate. EPA withdrew the Mid-Term Evaluation in April 2018, concluding that more recent information showed that the standards might be “too stringent.” EPA and trade groups sought to dismiss the challenges to the April 2018 action as premature and also argued that the petitioners did not have standing. California v. EPA, No. 18-1114 (D.C. Cir. Nov. 21, 2018).
Opening Brief in Challenge to Natural Gas Facilities in New York Argued That Evaluation of Greenhouse Gas Impacts Was Inadequate
Petitioners challenging Federal Energy Regulatory Commission (FERC) authorizations for construction, modification, and expansion of natural gas facilities associated with a transmission pipeline in New York filed an opening brief in the D.C. Circuit Court of Appeals arguing that FERC had improperly limited the scope of its evaluation of the project’s greenhouse gas emissions. The petitioners argued that FERC, in a split decision, failed to properly evaluate indirect and cumulative impacts of upstream and downstream activities. The petitioners also argued that FERC had failed to disclose the climate change impacts of the project’s greenhouse gas emissions. In addition, the petitioners contended that FERC had improperly announced, in its denial of a petition for rehearing, a new policy of not providing upper-bound estimates of downstream and upstream impacts in environmental reviews. Otsego 2000, Inc. v. Federal Energy Regulatory Commission, No. 18-1188 (D.C. Cir. Nov. 26, 2018).
FERC and Trade Groups Defended Greenhouse Gas Emissions Analysis for Mountain Valley Pipeline
FERC and five trade groups filed briefs in the D.C. Circuit defending FERC’s review of the Mountain Valley Pipeline, a natural gas pipeline extending from West Virginia to Virginia. FERC argued that its consideration of downstream greenhouse gas emissions was reasonable. In particular, FERC contended that end-use greenhouse gas impacts were not an indirect impact of the project; that it was reasonable to determine that FERC could not assess the significance of downstream emissions; that it was reasonable to decline to use the social cost of carbon tool; that FERC reasonably declined not to consider downstream emissions in its public interest analysis under the Natural Gas Act; and that FERC relied on record evidence to support its determination that a no-action alternative would not decrease natural gas consumption or greenhouse gas emissions. FERC also defended other aspects of its decision-making from claims under the National Historic Preservation Act, the Natural Gas Act, Section 4(f) of the Department of Transportation Act, and the takings and due process clauses of the Constitution. Four trade groups filed an amicus brief that defended FERC’s determinations regarding the scope of the review of greenhouse gas emissions. Interstate Natural Gas Association of America filed its own amicus brief that also defended the analysis of greenhouse gas emissions and climate change. Appalachian Voices v. Federal Energy Regulatory Commission, No. 17-1271 (D.C. Cir.).
EPA Said Challenges to Clean Power Plan Should Remain in Abeyance Pending Completion of Replacement Rulemaking
On November 21, 2018, EPA filed a status report in the still-pending challenges to the Clean Power Plan in the D.C. Circuit Court of Appeals. The court has held the cases in abeyance since April 28, 2017. In September 2018, intervenors defending the Clean Power Plan asked the D.C. Circuit to discontinue the abeyance and decide the merits of the case. In the November status report, EPA told the court it intended and expected to take final rulemaking action on a replacement rule for the Clean Power Plan “by the first part of 2019.” EPA said the court should continue to hold the cases in abeyance pending the conclusion of the rulemaking. West Virginia v. EPA, No. 15-1363 (D.C. Cir. Nov. 21, 2018).
Exxon Told Second Circuit That District Court Decision in NRA Case Supported Exxon’s Viewpoint Discrimination Claims Against Attorneys General
On November 20, 2018, Exxon Mobil Corporation’s counsel in its appeal of the dismissal of its lawsuit challenging the climate change-related investigations of the New York and Massachusetts attorneys general submitted a letter to advise the Second Circuit Court of Appeals of a district court decision in the Northern District of New York that denied New York State officials’ motion to dismiss viewpoint discrimination claims by the National Rifle Association (NRA). Exxon argued that its allegations against the attorneys general should have been reviewed under the same standards as were applied to the NRA’s claims, and contended that the court in the NRA case had rejected many of the arguments made by the attorneys general and their amici, including that actual chilled speech was necessary for a First Amendment claim and that viewpoint discrimination cannot arise from statements that might qualify as “government speech.” Exxon Mobil Corp. v. Healey, No. 18-1170 (2d Cir. Nov. 20, 2018).
States, D.C., and NRDC Argued That EPA’s Decision Not to Apply HFC Use Restrictions Was Unlawful
Natural Resources Defense Council (NRDC) and 11 states and the District of Columbia filed their opening briefs in D.C. Circuit proceedings challenging EPA guidance that stated EPA would not apply any restrictions adopted in 2015 on the use of hydrofluorocarbons (HFCs) as substitutes for ozone-depleting substances. The petitioners argued that the guidance turned the D.C. Circuit’s 2017 decision partially vacating the 2015 restrictions (to the extent they required manufacturers currently using HFCs to stop using them) into a “complete vacatur.” NRDC and the states contended that the guidance therefore violated the Clean Air Act by suspending a final regulation without notice-and-comment rulemaking and that the guidance was arbitrary and capricious because EPA failed to provide a reasoned explanation for the suspension of the HFC use restrictions. Natural Resources Defense Council v. Wheeler, No. 18-1172 (D.C. Cir. Nov. 7, 2018).
EPA Appealed and Sought Stay of Federal Court Order Requiring Temperature TMDL for Columbia and Snake Rivers
On November 21, 2018, EPA appealed an Oregon district court’s judgment requiring EPA to issue a total maximum daily load (TMDL) for temperature for the Columbia and lower Snake Rivers. EPA also sought a stay pending appeal from the district court, which on November 8 denied EPA’s motion to extend the court’s 60-day deadline for issuing the TMDL. In its October order setting the deadline, the district court concluded that Washington and Oregon had constructively submitted a “no TMDL” because the states had “clearly and unambiguously indicated” they would not produce a TMDL for the rivers. The district court therefore determined that EPA had failed to undertake its mandatory duty to issue a TMDL. EPA argued in its motion for a stay pending appeal that it was likely to succeed on its appeal because the constructive submission doctrine was an unlawful expansion of the Clean Water Act and, even if lawful, was not properly applied in this case. EPA also noted that it had disapproved the states’ “constructive submission” on November 16, 2018, and that it was not yet in violation of its duty to issue a TMDL. EPA also argued it would be irreparably harmed because being compelled to issue a TMDL could moot its appeal, would impose significant hardship because TMDL preparation typically takes three to five years, and would interfere with EPA’s “ability to engage in a robust TMDL process.” EPA also asserted that the balance of equities and public interest favored a stay pending appeal to allow synchronization and coordination of TMDL preparation and implementation. Columbia Riverkeeper v. Pruitt, No. 2:17-cv-00289 (W.D. Wash. order denying motion for extension Nov. 8, 2018; notice of appeal and motion for stay pending appeal Nov. 21, 2018); No. 18-35982 (9th Cir.).
Center for Biological Diversity Asked Court to Compel EPA to List Oregon Coastal Waters as Impaired by Ocean Acidification
Center for Biological Diversity filed a lawsuit in federal court in Oregon asserting that EPA had violated the Clean Water Act by failing to identify ocean waters off the coast of Oregon as impaired by ocean acidification. CBD alleged that Oregon’s coastal waters were “experiencing a dramatic water quality problem” caused by the ocean’s absorption of carbon dioxide from the atmosphere and by land-based pollution, including nutrient runoff. CBD said Oregon had failed to include marine waters impaired by ocean acidification on its 2012 list of impaired waters submitted to EPA pursuant to Section 303(d) of the Clean Water Act. In December 2016, EPA partially disapproved the list and sought data and information on ocean acidification but never finalized a rulemaking identifying waters impaired by ocean acidification. CBD asked the court to declare that EPA’s failure to take action violated the Clean Water Act and Administrative Procedure Act and to compel EPA to finalize its rulemaking to add additional impaired waters to Oregon’s Section 303(d) list, including waters impaired by acidification. Center for Biological Diversity v. EPA, No. 6:18-cv-02049 (D. Or., filed Nov. 27, 2018).
Securities Class Action Alleged That Southern California Utility Misled Investors on Wildfire Risk
A federal securities class action was filed in the federal district court for the Central District of California on behalf of parties that acquired stock in Southern California Edison Company (SCE) and its parent holding company in the approximately two and a half years leading up to the outbreak of two wildfires in Southern California in November 2018 and the California Public Utilities Commission’s subsequent launch of an investigation into SCE’s compliance with applicable rules and regulations in fire-impacted areas. The complaint alleged that the companies made false and misleading statements about their maintenance of the electric grid and wildfire risks. The complaint included an excerpt from a public statement by the companies alluding to increased risk of wildfires due to factors including climate change and the associated financial risks to SCE. Barnes v. Edison International, No. 2:18-cv-09690 (C.D. Cal., filed Nov. 16, 2018).
Conservation Groups Filed Challenge to Mining Project in Idaho Federal Court
Two conservation groups filed a lawsuit against the U.S. Forest Service in federal court in Idaho challenging the approval of a mining exploration project. The plaintiffs asserted that the Forest Service had violated the National Environmental Policy Act, the National Forest Management Act, the Forest Service Organic Act, and the Administrative Procedure Act. The alleged violations included a failure to provide “quantitative or detailed information” to support the conclusion that the project and threats posed by nonnative white pine blister rust, native mountain pine beetle, climate change, and fire suppression would not have measurable cumulative effects on whitebark pine. Idaho Conservation League v. U.S. Forest Service, No. 1:18-cv-00504 (D. Idaho, filed Nov. 13, 2018).
Union of Concerned Scientists Filed Lawsuit Seeking Correspondence and Other Records Regarding Proposed Coal and Nuclear Subsidies
Union of Concerned Scientists (UCS) filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Energy and the Federal Energy Regulatory Commission seeking to compel the agencies to produce additional records responsive to UCS’s requests for correspondence and other documents related to the agencies’ consideration of subsidies for coal and nuclear power. UCS submitted seven FOIA requests, including requests for communications between DOE officials and representatives of certain coal companies, a utility company, and the National Coal Council. Union of Concerned Scientists v. U.S. Department of Energy, No. 1:18-cv-02615 (D.D.C., filed Nov. 13, 2018).
Defenders of Wildlife Filed FOIA Lawsuit Seeking Documents About Fossil Fuel Development Plans for Arctic National Wildlife Refuge
Defenders of Wildlife filed a Freedom of Information Act lawsuit seeking to compel a response to requests for documents from the U.S. Department of the Interior, the U.S. Fish and Wildlife Service, and the U.S. Bureau of Land Management about plans for fossil fuel development on the Coastal Plain of the Arctic National Wildlife Refuge. The complaint alleged that oil and gas development would threaten the environment and that “threats would be compounded in an area that is already ground zero for climate change – the Arctic is warming at more than twice the rate as the rest of the planet.” Defenders of Wildlife v. U.S. Department of the Interior, No. 18-cv-2572 (D.D.C., filed Nov. 8, 2018).
After Proposing Delay of Compliance Requirements for Landfill Emission Guidelines, EPA Asked Federal Court to Stay States’ Lawsuit
On November 5, 2018, EPA moved to stay a lawsuit brought by states in the federal district court for the Northern District of California to compel EPA to promulgate federal implementation plans for Obama-era emission guidelines for existing municipal solid waste landfills. EPA told the court that the deadlines upon which the states’ claims were based were the subject of proposed rulemakings to amend the deadlines. First, in August 2018, EPA proposed in its “Affordable Clean Energy” replacement for the Clean Power Plan to amend timing requirements for all “ongoing” emission guidelines to allow more time for submission of state plans as well as for EPA review of such plans and EPA promulgation of federal plans. Second, in October 2018, EPA proposed to extend the deadline for submitting state plans for the landfill emission guidelines to August 19, 2019 (from May 30, 2017), and to provide additional time after that date for EPA review and, if necessary, EPA promulgation of federal plans. The states opposed the stay request, as did Environmental Defense Fund, which the court granted permission to intervene in support of the plaintiffs. On November 14, the states asked the court to hold a hearing on the stay motion as soon as possible, arguing that significant prejudice and harm would result and that EPA’s relief would be effectively granted if the hearing were held on February 14, 2019, as currently scheduled. California v. EPA, No. 4:18-cv-03237 (N.D. Cal.).
Competitive Enterprise Institute Filed Lawsuit Seeking Law Professors’ Correspondence About Energy Industry and Climate Change
Competitive Enterprise Institute filed a lawsuit seeking to compel the University of California at Los Angeles (UCLA) Law School to respond to requests under the California Public Records Act for records “concerning the University’s work with private outside parties including law enforcement to develop theories of litigation against, and pursue as targets of investigation, perceived opponents of a political and policy agenda shared by these outside parties and certain faculty.” In particular, CEI sought the correspondence of two UCLA Law School professors, who CEI said had used their positions at the school to coordinate with institutions and individuals to urge legal action against “energy industry participants or political opponents of the ‘climate’ policy agenda.” Competitive Enterprise Institute v. Regents of the University of California, No. 18 ST CP 02832 (Cal. Super. Ct., filed Nov. 8, 2018).
Challengers of San Diego Development Project Alleged Failures to Disclose Greenhouse Gas Emissions, Wildfire Risk
Environmental and other nonprofit organizations and community groups, along with a number of individuals and a spa company that “emphasizes harmony with the environment in focusing on the health and fitness of its guests,” filed a lawsuit in California Superior Court challenging San Diego County’s approvals for a residential and commercial project. The petition described the project as involving construction of 2,135 residential units and 81,000 square feet of commercial uses “in a mostly undeveloped, Very High Severity fire hazard area in a rural, unincorporated area of the County located far from transit infrastructure and job centers.” The petitioners asserted claims under the California Environmental Quality Act, the State Planning and Zoning Law, the Subdivision Map Act, and County regulatory and zoning ordinances, California and U.S. constitutional violations, and the Religious Land Use and Institutionalized Persons Act. The petitioners contended, among other claims, that the County approved the project despite having been enjoined from relying on a greenhouse gas mitigation measure in the County’s Climate Action Plan that was “essentially the same” as a mitigation measure for the project. The petitioners asserted that the County “failed to disclose, discuss, or analyze the cumulative effects on energy consumption and environmental justice of permitting in-County [greenhouse gas] emissions and [vehicle miles traveled] in exchange for carbon offsets that would reduce [greenhouse gas] emissions in other places of the world.” The petitioners also asserted that the County “failed to account for the increasing prevalence and severity of wildfires” due to “climate change and other climatic changes.” California Native Plant Society v. County of San Diego, No. 37-2018-00054559-CU-TT-CTL (Cal. Super. Ct., filed Oct. 26, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
UK High Court Quashes Government Denial of Permit for Coal Mine for Inadequate Explanation of Adverse Impacts from Greenhouse Gas Emissions
H. J. Banks & Co. Ltd challenged the Secretary of State for Housing, Communities, and Local Government under section 288 of the Town and Country Planning Act 1990 for denying a planning permission for a coal mining project. The High Court quashed the denial on two grounds, including the Secretary’s inadequate explanation of how preventing the project would reduce greenhouse gas emissions.
The Northumberland County Council granted planning permission to H. J. Banks & Co. Ltd for a surface mine for the extraction of coal, sandstone, and fireclay in the Highthorn area of southeast Northumberland. The Secretary called the application in for his own determination and after a public inquiry declined to grant permission for the project, giving considerable weight in his decision-making to the adverse effects of greenhouse gas emissions. H. J. Banks & Co. Ltd challenged the denial on two grounds. The first ground alleged an error in the Secretary’s interpretation of balancing considerations under paragraph 149 of the National Planning Policy Framework (NPPF). The second ground alleged that the Secretary wrongly weighed greenhouse gas emissions resulting from burning coal at power plants and that the Secretary acted inconsistently with previous practice in how the Secretary considered these emissions.
The High Court quashed the decision on grounds one and two. On ground one, the High Court determined that the Secretary had not lawfully weighed the relative costs and benefits of tourism and biodiversity as required under the balancing test of paragraph 149 of the NPPF and related regulations. On ground two, the High Court found that the Secretary provided insufficient reasoning to explain why emissions would be reduced if the coal project was denied because there was not adequate explanation of how power generation would be replaced by less carbon-intensive sources rather than imported coal. The Court found that the Secretary provided inadequate reasoning for how national policy to decarbonize was inconsistent with granting the permission. H.J. Banks & Co. v. Secretary of State for Housing, Communities, and Local Government, No. CO/1731/2018 (Q.B. Admin. Ct. Nov. 23, 2018).
Nonprofit Files Class Action on Behalf of Québec Youth Against Canadian Government for Government’s Failure to Set Adequate Greenhouse Gas Emission Reduction Target and Plan
ENvironnement JEUnesse, an environmental nonprofit, has applied in the Superior Court of Québec to bring a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. ENvironnement JEUnesse reports that it has asked the Court, inter alia, to declare that the Government of Canada has failed in its obligations to protect the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms. The organization alleges that the government violated plaintiffs’ rights by setting a greenhouse gas reduction target insufficient to avoid dangerous climate change impacts and by lacking an adequate plan to reach its greenhouse gas emission target.
More specifically, plaintiffs allege that 1) the “Canadian government’s adoption of GHG emission targets that it knows are harmful to human life and health violates the right of class members to life, inviolability and security protected by section 7 of the Canadian Charter and section 1 of the Québec Charter,” and 2) “by adopting inadequate targets and failing to put in place the necessary measures to achieve these targets, the government is violating the class members’ right to live in a healthful environment in which biodiversity is preserved, protected by the Québec Charter.”
The class action seeks a declaratory judgment and punitive damages. The plaintiffs have also asked the court to order a cessation of interference with plaintiffs’ rights. ENvironnement JEUnesse v. Attorney General of Canada, No. 500-06-_ (Québec Super. Ct., filed Nov. 26, 2018).
Dutch Government Says It Will Appeal Decision in Favor of Urgenda Foundation
The Dutch government has announced that it will appeal the October 9, 2018 decision of the Hague Court of Appeal upholding a District Court ruling in favor of a Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens who sued the Dutch government to require it to do more to prevent global climate change. The Court of Appeal concluded that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government was acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the European Convention on Human Rights. Urgenda Foundation v. Kingdom of the Netherlands, No. 200.178.245/01 (Hof).
German Environmental Group and Others Lodge Constitutional Complaint Against German Government for Failure to Meet Climate Goals
Friends of the Earth Germany reports that they have lodged a constitutional complaint against the German government, alleging that the government’s failure to meet its own greenhouse gas emission reduction goals and EU 2020 goals violated plaintiffs’ fundamental rights. They report further allegations that the government has a legal obligation to base its climate policy on current facts rather than an outdated two-degree Celsius threshold which will allow dangerous amounts of climate change. We have not been able to verify this as no copy of the complaint appears to be publicly available. Friends of the Earth Germany v. Germany (BVerfG, filed Nov. 23, 2018).
