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 # 117.
With One Judge Dissenting, Ninth Circuit Permitted Federal Government Appeal in Young People’s Climate Case; Expedited Briefing Schedule Set
On December 26, 2018, the Ninth Circuit Court of Appeals granted the federal government’s petition for permission to appeal an Oregon federal court’s decisions allowing constitutional climate change claims brought by a group of young people to proceed. Judge Friedland dissented from the order, writing that she believed the district court’s statements in its order certifying the decisions for interlocutory appeal prevented the Ninth Circuit from permitting the appeal because the district court “expressed that it does not actually think that the criteria for certification are satisfied.” Certification for interlocutory appeal requires (1) that the “order involves a controlling question of law as to which there is substantial ground for difference of opinion,” and (2) that “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Judge Friedland said it appeared that the court “felt compelled” to declare that certification requirements were satisfied due the Supreme Court’s statements that “[t]he breadth of [the] claims is striking, … and the justiciability of those claims presents substantial grounds for difference of opinion” and by the Ninth Circuit’s echoing of those statements. Judge Friedland noted that the decision whether to certify was left to the district court’s discretion, and that while the Ninth Circuit and the Supreme Court might be “as well-positioned as the district court” to consider the first “purely legal” requirement for certification, the district court “is far better positioned” to assess the second requirement, which concerns “how to resolve the litigation most efficiently.” In a footnote, Judge Friedland wrote that “[i]t is also concerning that allowing this appeal now effectively rewards the Government for its repeated efforts to bypass normal litigation procedures,” and that “[i]f anything has wasted judicial resources in this case, it was those efforts.”
In a separate order, the Ninth Circuit denied as moot the government’s pending mandamus petition, which was filed after the Supreme Court denied its application for a stay. The Ninth Circuit also denied all other pending motions as moot, including the Juliana plaintiffs’ emergency motion for a lifting of stay previously granted by the Ninth Circuit (which the plaintiffs filed in both the mandamus proceeding and the permission-to-appeal proceeding).
At the district court, the plaintiffs’ December 5 motion for reconsideration of the court’s November 21 order staying the proceedings is still pending. In a reply filed on December 27 in support of the motion for reconsideration, the plaintiffs said they believed the stays granted by the district court and the Ninth Circuit had both been lifted due to the Ninth Circuit’s acceptance of the appeal and the denial of the mandamus petition. The plaintiffs contended that the district court should continue with certain proceedings, including supervision of “minimal outstanding discovery,” resolution of pretrial motions, hearing a motion for preliminary injunctive relief that the plaintiffs were preparing, and presiding at trial over particular questions that the plaintiffs said were not at issue in the pending appeal in the Ninth Circuit.
On January 7, the Ninth Circuit set an expedited briefing schedule for the government’s appeal, partially granting the plaintiffs’ motion to expedite the schedule. The government must file its opening brief by February 1, a response brief is due February 22, and an optional reply brief would be due March 8. The court denied as moot the government’s request that its obligation to respond to the motion to expedite be postponed due to the government shutdown. Juliana v. United States, No. 18-80176 (9th Cir. Dec. 26, 2018), No. 18-36082 (9th Cir. Jan. 7, 2019); No. 6:15-cv-01517 (D. Or.).
DECISIONS AND SETTLEMENTS
U.S. Supreme Court Declined to Review Massachusetts High Court’s Decision Allowing Climate Change Investigation of Exxon
The U.S. Supreme Court denied without comment Exxon Mobil Corporation’s (Exxon’s) petition for a writ of certiorari seeking review of the Massachusetts Supreme Judicial Court’s ruling that allowed the Massachusetts attorney general to proceed with a climate change-related investigation of Exxon’s marketing and sales of its products. Exxon argued that the Massachusetts court’s standard for personal jurisdiction violated due process. Exxon Mobil Corp. v. Healey, No. 18-311 (U.S. Jan. 7, 2019).
D.C. Circuit Upheld FERC Authorization of New England Pipeline Project
In an unpublished judgment, the D.C. Circuit Court of Appeals rejected a challenge to proposed upgrades to existing natural gas pipelines in New England. The court rejected the contention that the project did not serve the public convenience and necessity in violation of the Natural Gas Act. The court also rejected claims that the Federal Energy Regulatory Commission’s (FERC’s) consideration of environmental effects, including greenhouse gas emissions, was inadequate. The court said that FERC had “both quantified the project’s expected greenhouse-gas emissions and discussed how the project would interact with Massachusetts’s climate-change goals.” The court also found that FERC had not violated the Coastal Zone Management Act. Town of Weymouth v. Federal Energy Regulatory Commission, No. 17-1135 (D.C. Cir. Dec. 27, 2018).
California Federal Court Allowed States to Proceed with Lawsuit to Compel Enforcement of Emission Guidelines for Existing Landfills
The federal district court for the Northern District of California denied the U.S. Environmental Protection Agency’s (EPA’s) motion to dismiss a lawsuit brought by eight states to compel EPA to implement and enforce emission guidelines for existing landfills. The guidelines were promulgated in August 2016 and took effect on October 29, 2016; pursuant to EPA regulations, states were required to submit implementation plans by May 30, 2017, and EPA was to approve or disapprove submitted plans by September 30, 2017, and to promulgate federal plans by November 30, 2017 for states that did not submit implementation plans or whose plans were disapproved. The court rejected EPA’s contention that the court lacked jurisdiction because EPA’s sovereign immunity had not been waived for duties imposed by regulations. The court also rejected EPA’s argument that the plaintiffs failed to identify states that should have submitted implementation plans, triggering EPA’s duty to act. In addition, the district court denied EPA’s motion to stay the case until EPA concludes a rulemaking in which it has proposed to extend the deadline for states to submit implementation plans until August 29, 2019. California v. EPA, No. 4:18-cv-03237 (N.D. Cal. Dec. 21, 2018).
Montana Federal Court Barred Preconstruction Activities for Keystone Pipeline; Government Shutdown May Delay Decision on TransCanada’s Stay Motion
On December 7, 2018, the federal district court for the District of Montana enjoined TransCanada Keystone Pipeline, LP (TransCanada) from conducting certain “preconstruction activities” in connection with the Keystone XL pipeline until the U.S. Department of State completed supplemental environmental review in response to the court’s November 2018 order enjoining work on the pipeline. After TransCanada sought to narrow the scope of the injunction, the court initially allowed TransCanada to proceed with certain activities and, in the December 7 order, also allowed TransCanada to go ahead with certain surveying activities and to maintain a security presence. The court found, however, that the plaintiffs had established all four prongs justifying a permanent injunction barring the preconstruction activities, which included preparation of off-right-of-way pipe storage and contractor yards and transportation, receipt, and off-loading of pipe at storage yards. In considering whether such activities would cause irreparable harm, the court said allowing the preconstruction activities to go forward before the State Department finished its review “could skew the Department’s future analysis and decision-making regarding the project.”
TransCanada appealed the November and December orders and has asked the district court for a stay while it pursues the appeal. TransCanada requested that the court rule on the stay request by January 7 so that TransCanada could, if necessary, pursue relief in the Ninth Circuit “with the goal of preserving the 2019 construction season.” The district court scheduled a hearing on the stay motion for January 14. On January 4, TransCanada submitted a statement conveying its view that the hearing could proceed even if the federal government shutdown prevented the U.S. Department of Justice (DOJ) from participating because, in TransCanada’s view, the court’s injunction “largely concerns TransCanada” and DOJ’s presence “is not essential.” On January 7, DOJ filed a statement supporting TransCanada’s view. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. Dec. 7, 2018); No. 18-36068 (9th Cir.).
Alaska Federal Court Rejected Challenges to Lease Sales in National Petroleum Reserve-Alaska
The federal district court for the District of Alaska ruled that plaintiffs challenging 2016 and 2017 oil and gas lease sales for parcels in the National Petroleum Reserve-Alaska were time-barred from asserting claims that the U.S. Bureau of Land Management (BLM) failed to take a hard look at greenhouse gas emissions that would result from the lease sales or at alternative lease sale configurations, size, or timing. The court found that the plaintiffs were challenging the adequacy of an Integrated Activity Plan/Environmental Impact Statement (IAP/EIS) finalized in 2012, and that, pursuant to the Naval Petroleum Reserves Production Act of 1976, challenges to the IAP/EIS were required to be filed within 60 days. Moreover, to the extent the plaintiffs challenged the lease sales themselves, the court found they had waived any argument that BLM should have supplemented the IAP/EIS. The court incorporated by reference its order granting summary judgment to the defendants in a separate challenge to the 2017 lease sale. Plaintiffs in that case asserted that BLM was required to prepare an environmental impact statement or environmental assessment prior to issuing the leases. The court rejected this argument, concluding that Ninth Circuit precedent upholding issuance of leases prior to a site-specific analysis of each lease parcel was controlling. As in the other case, the court held that the plaintiffs waived any claims that BLM should have supplemented its earlier review in the IAP/EIS. Natural Resources Defense Council v. Zinke, No. 3:18-cv-00031 (D. Alaska Dec. 6, 2018); Northern Alaska Environmental Center v. U.S. Department of the Interior, No. 3:18-cv-00030 (D. Alaska Dec. 6, 2018).
California Appellate Court Found No State Court Jurisdiction for Claims About Climate Change Impacts on Oroville Dam
The California Court of Appeal ruled that state courts were without jurisdiction to hear claims that the impact of climate change on continued operation of the Oroville Dam was not considered in a relicensing process for the dam. The trial court had dismissed the complaint on the ground that predicting climate change impacts was speculative. The Court of Appeal concluded, however, that the operation of the existing dam was not the “project” subject to environmental review. Instead, the “project” at issue was certain specified measures to further mitigate the loss of habitat caused by the dam’s construction decades ago, a project over which the Federal Energy Regulatory Commission had jurisdiction under the Federal Power Act. The appellate court noted that this case did not concern “the construction, repair, or replacement of the dam spillways, the need for which occurred during the pendency of this case,” referring to failure of a spillway at the dam in 2017, which forced the evacuation of almost 200,000 people who lived downstream. County of Butte v. Department of Water Resources, No. C071785 (Cal. Ct App. Dec. 20, 2018).
D.C. Appellate Court Left in Place Decision Allowing Climate Scientist’s Defamation Claims to Proceed
Two years after the District of Columbia Court of Appeals ruled that climate scientist Michael Mann could proceed with defamation claims against the authors and publishers of online articles, the appellate court responded to a petition for rehearing by issuing an amended opinion with only minor adjustments—the addition of one footnote and the revision of another. The appellate court thereby reaffirmed its conclusion that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. The articles accused Mann of scientific misconduct and compared his alleged misconduct to the conduct of Jerry Sandusky, a football coach at Penn State who was convicted of child sexual abuse. On December 27, appellant National Review, Inc. filed a petition for rehearing en banc. Competitive Enterprise Institute v. Mann, No. 14-CV-101 (D.C. Ct. App. Dec. 13, 2018).
NEW CASES, MOTIONS, AND NOTICES
Environmental Groups Filed Challenge to Plan for Offshore Oil and Gas Development in Beaufort Sea
Five environmental groups led by Center for Biological Diversity filed a petition in the Ninth Circuit Court of Appeals seeking review of Bureau of Ocean Energy Management’s (BOEM’s) decision to approve an offshore oil and gas development and production plan submitted by Hilcorp Alaska, LLC, for the Liberty Project located in the Beaufort Sea offshore of Alaska and also of the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion for the construction and operation of the project. The groups said that BOEM’s approval of the plan violated the National Environmental Policy Act, the Outer Continental Shelf Lands Act, and the Administrative Procedure Act, and that FWS violated the Endangered Species Act. Center for Biological Diversity v. Zinke, No. 18-73400 (9th Cir., filed Dec. 17, 2018).
Environmental Defense Fund Launched FOIA Lawsuit Seeking External Communications of Department of Transportation Officials About Emissions Standards
Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit in federal district court in the District of Columbia against the U.S. Department of Transportation (DOT) seeking to compel a response to requests for calendars and correspondence of DOT officials related to DOT’s proposed and anticipated actions to roll back greenhouse gas and fuel efficiency standards for light- and medium-duty vehicles and for heavy-duty trailers. The complaint alleged that DOT was “now taking a prominent role in attacking these win-win safeguards” and that “[k]nowledge of the extent and nature of communications with external stakeholders is critical for EDF, its members, and the public to make an informed judgment” about DOT’s actions. Environmental Defense Fund v. U.S. Department of Transportation, No. 1:18-cv-03004 (D.D.C., filed Dec. 19, 2018).
Environmental Groups Filed FOIA Lawsuit to Compel Release of Technical Information Supporting Vehicle Standards
Natural Resources Defense Council and Environmental Defense Fund filed a FOIA lawsuit against EPA seeking a response to the organizations’ request for “certain limited agency records relating to the technological feasibility of greenhouse gas emission standards.” The organizations alleged that they made the request after EPA published notice of its intent to revise greenhouse gas emission standards for light-duty vehicles. The particular records sought are related to the computer model developed by EPA to assess the cost and effectiveness of greenhouse gas emission standards, “the Optimization Model for reducing Emissions of Greenhouse gases from Automobiles (OMEGA).” The organizations said that EPA historically made such records public “as a matter of course” and that access to records was necessary “to enable meaningful public comment on highly-technical standards.” Natural Resources Defense Council v. EPA, No. 1:18-cv-11227 (S.D.N.Y., filed Dec. 3, 2018).
Youth Plaintiffs Filed Appeal in Alaska Supreme Court of Dismissal of Climate Case Based on State Constitution
A group of youth plaintiffs appealed an Alaska trial court’s dismissal of their lawsuit that charged that the State of Alaska’s climate and energy policies violated their rights under the Alaska constitution to a stable climate system. In their statement of points on appeal, the plaintiffs asserted that the Alaska Superior Court misconstrued four counts alleging violations of previously recognized constitutional rights as a “single constitutional claim to an unenumerated substantive due process right to a stable climate system” and failed to address other claims. The plaintiffs also said the Superior Court failed “to liberally construe and assume the truth of the facts alleged in their complaint, erred by finding the claims to be nonjusticiable, and erred by finding that reductions in the State’s greenhouse gas emissions would not redress the plaintiffs’ injuries. In addition, the plaintiffs contended that the trial court erred by finding that the Alaska Department of Environmental Conservation’s denial of their rulemaking petition was not arbitrary and by not addressing whether the denial violated the plaintiffs’ due process rights. Sinnok v. State, No. S17297 (Alaska Nov. 29, 2018).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Swiss Federal Administrative Court Dismissed Climate Case Filed by Swiss Senior Women
On November 27, 2018, the Swiss Federal Administrative Court dismissed a case brought by Swiss senior women alleging that the government had failed to uphold obligations under the Swiss Constitution and European Convention on Human Rights (ECHR) by not steering Switzerland onto an emissions reduction trajectory consistent with the goal of keeping global temperatures below 2ºC above pre-industrial levels. The court dismissed the case on the basis that Swiss women over 75 years of age are not the only population affected by climate change impacts. This dismissal followed a determination by the Department of Environment, Transport, Energy, and Communications (DETEC) on April 25, 2017 that the injury and remedy were not specialized to petitioners. DETEC found that petitioners lacked standing because their rights were not affected as necessary under Article 25a (1) APA (Administrative Procedure Act, Verwaltungsverfahrensgesetz,VwVG). DETEC determined that petitioners sought regulation of global CO2 emissions through general regulations rather than seeking a remedy for an infringement of their specific legal rights. They similarly found that petitioners did not have victim status under the ECHR because they sought a solution to serve the wider public interest of adoption of legislative reform to reduce CO2 emissions. The Administrative Court’s judgment can be appealed to the Swiss Supreme Court. Further analysis and an English translation of the dismissal will be shared when available. Union of Swiss Senior Women for Climate Protection v. Federal Department of the Environment, Transport, Energy and Communications, No. A-2992/2017 (TAF Nov. 27, 2018).
Nonprofits Initiated Legal Proceeding Against the French Government for Inadequate Action on Climate Change
On December 17, 2018, four nonprofits sent a “lettre préalable indemnitaire” (letter of formal notice) to Prime Minister Edouard Philippe and 12 members of the French government, initiating the first stage in a legal proceeding against the French government for inadequate action on climate change. This type of letter is part of a legal proceeding known as “recours en carence fautive” (action for failure to act). According to their press release, the plaintiffs allege that the French government’s failure to implement proper measures to effectively address climate change violated a statutory duty to act.
The four plaintiff groups are Fondation pour la Nature et l’Homme (FNH), Greenpeace France, Notre Affaire à Tous and Oxfam France. The press release argues that the government’s duty to act on climate change can be inferred from the French Constitution, the European Convention on Human Rights, and many other international agreements (including the Stockholm Declaration, the World Charter for Nature, the Rio Declaration on Environment and Development, the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Climate Agreement). They further infer this right from European legislation (including the Renewable Energy and Climate Change Package and other EU directives), and domestic policies (including statutory laws such as Grenelle I and the Act of 17 August 2015 on energy transition for green growth).
The French government has two months to respond to the letter of formal notice and then the plaintiffs will be able to file an appeal before the Administrative Court of Paris. Notre Affaire à Tous v. France (Dec. 17, 2018).