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 # 118.
FEATURED CASE
Ninth Circuit Rejected Challenge to California’s Low Carbon Fuel Standard
The Ninth Circuit Court of Appeals upheld California’s Low Carbon Fuel Standard (LCFS), rejecting claims under the Commerce Clause that largely echoed unsuccessful arguments made before the Ninth Circuit in a previous appeal concerning only the 2011 and 2012 versions of the LCFS. The Ninth Circuit noted that although the LCFS had been repealed and replaced in 2015, the “core structure” of the regulations (with their emphasis on fuels’ lifecycle emissions) and claims was the same as it had been when the court decided the first appeal. The Ninth Circuit therefore ruled that its prior decision on the 2011 and 2012 versions of the LCFS precluded the plaintiffs’ claims that the 2015 LCFS constituted impermissible extraterritorial regulation and that it facially discriminated against interstate commerce in ethanol and crude oil. Regarding extraterritoriality, the court rejected the argument that the LCFS was motivated by a concern for environmental harms in other states, stating: “California did not enact the LCFS because it thinks that it is the state that knows how best to protect Iowa’s farms, Maine’s fisheries, or Michigan’s lakes.” The court said California’s interest in lifecycle emissions arose from its concern about climate change’s impacts on California and that the LCFS was therefore “a classic exercise of police power.” Regarding facial discrimination, the court said that California was attempting “to address a vitally important environmental issue with vast potential consequences” and that it could not offer “a potential solution to the perverse incentives that would otherwise undermine any attempt to assess and regulate the carbon impact of different fuels … without the ability to differentiate the different production processes and power generation that are used to produce those fuels.” The Ninth Circuit also held that the plaintiffs’ “structural federalism” claim was precluded by the court’s recent decision on Oregon’s Clean Fuel Program, in which the Ninth Circuit concluded that any such claim would be contingent on a finding that the program regulated extraterritorially. The Ninth Circuit emphasized that “[t]here is simply no reason to search beyond the Commerce Clause for the Constitution’s limits on the ability of states to affect interstate commerce.” In addition, the Ninth Circuit found that the plaintiffs had failed to take advantage of the opportunity given by its earlier decision on the 2011 and 2012 LCFS to show that the LCFS was actually intended “to prop up local fuel interests” and discriminate against interstate commerce. The court also dismissed claims against the 2011 and 2012 versions of the LCFS as moot because the challenged laws were no longer in effect and plaintiffs’ obligations under the earlier versions had been discharged. Rocky Mountain Farmers Union v. Corey, No. 17-16881 (9th Cir. Jan. 18, 2019).
DECISIONS AND SETTLEMENTS
Federal Court Again Dismissed ERISA Action Alleging Breach of Fiduciary Duties by Exxon Officers
The federal district court for the Southern District of Texas again dismissed a class action lawsuit brought under the Employee Retirement Income Security Act (ERISA) by Exxon Mobil Corporation (Exxon) employees who participated in an Exxon Mobil Savings Plan and who were invested in Exxon stock between November 1, 2015 and November 1, 2016. The plaintiffs alleged that defendants—senior corporate officers who were fiduciaries of the Savings Plan—knew or should have known that the value of Exxon’s stock had become artificially inflated due to fraud and misrepresentation, making it an imprudent investment. The plaintiffs asserted that Exxon’s public statements were materially false and misleading because they failed to disclose that Exxon reserves had become impaired due to, among other factors, the proxy cost of carbon. In their second amended complaint, the plaintiffs alleged that the defendants should have sought out those responsible for Exxon’s securities disclosures to persuade them to refrain from making affirmative misrepresentations. The district court found that the second amended complaint still failed to meet the very high pleading standards for a claim under ERISA of failure to prudently manage the Savings Plan’s assets. The court found that it could not say that “attempting to prevent Exxon’s alleged misrepresentations would have been ‘so clearly beneficial that a prudent fiduciary could not conclude that it would be more likely to harm the fund than to help it.’” The court distinguished a recent Second Circuit opinion that found that a plan’s fiduciaries could not have concluded that a corrective disclosure would do more harm than good. In Exxon’s case, the district court said Fifth Circuit precedent precluded the plaintiffs’ argument that the alleged fraud would become more damaging over time. The court also said that eventual disclosure was not inevitable despite investigations into Exxon by state attorneys general and the Securities and Exchange Commission. Fentress v. Exxon Mobil Corp., No. 4:16-cv-03484 (S.D. Tex. Feb. 4, 2019).
Federal Court Allowed Forest Products Companies to Proceed with Single Defamation Claim Against Greenpeace, Dismissed RICO Claim
The federal district court for the Northern District of California allowed a defamation claim by forest products companies to proceed against the environmental groups Greenpeace, Inc., Greenpeace International, and three Greenpeace employees. The court found that the companies alleged all the elements of a defamation claim, including actual malice, with respect to one alleged statement in which a Greenpeace employee said the companies had logged in the Montagnes Blanches in Quebec when she was on notice that the statement was not true. The court also allowed the companies to proceed with an Unfair Competition Law claim against these five defendants based on the viable defamation claim. The court, however, found that almost 300 alleged statements by the defendants were not actionable, including statements that the companies were “bad news for the climate” and that the companies’ practices had a large effect on climate change. The court also dismissed claims of trade libel, intentional interference with prospective and contractual economic relationships, and civil conspiracy as well as claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), finding that allegations of essential elements of these claims were missing from the complaint. The court also dismissed the other defendants from the action and granted the defendants’ motion to strike under California’s “anti-SLAPP” (Strategic Lawsuits Against Public Participation) law as to the claims dismissed for failure to state a claim. Resolute Forest Products, Inc. v. Greenpeace International, No. 17-cv-02824 (N.D. Cal. Jan. 22, 2019).
Colorado High Court Said Agency Properly Turned Down Youth Activists’ Rulemaking Petition; Court Denied Activists’ Motion to Vacate or Reconsider Decision Due to Reliance on Suspended Judge’s Dissent
Reversing an intermediate appellate court, the Colorado Supreme Court ruled that the Colorado Oil and Gas Conservation Commission (COGCC) properly declined to consider a rule proposed by youth activists that would have precluded COGCC from issuing permits for drilling oil and gas wells “unless the best available science demonstrates, and an independent, third-party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change.” First, the Supreme Court noted that its review of agency decisions regarding whether to engage in rulemaking was “limited and highly deferential.” Second, the court concluded that COGCC had correctly determined that the Colorado Oil and Gas Conservation Act did not allow COGCC to condition new oil and development on the absence of cumulative adverse public health and environmental impacts. Third, the Supreme Court found that COGCC reasonably relied on the facts that it was already working with the Colorado Department of Public Health and Environment to address the concerns to which the rulemaking petition was directed and that other COGCC priorities took precedent over the rulemaking requested by the youth activists.
On January 28, 2019, the Colorado Supreme Court denied the youth activists’ motion to vacate the intermediate appellate court’s dissenting opinion on which the Supreme Court relied in its decision and to vacate or reconsider and modify the Supreme Court decision. The basis for these requests was new information received by the activists about an email sent by the judge who authored the dissent and judicial discipline proceedings related to the email. The judge sent an email about this case, using a “racial epithet” to refer to another judge on the panel, the day after oral argument before the intermediate appellate court. The email formed part of the basis for a recommendation by the Colorado Commission on Judicial Discipline that the judge, who was already suspended, be removed from the bench. The report adopted by the Commission on Judicial Discipline wrote that the judge’s email about the case, in which the lead plaintiff is of Native American and Latino lineage, “creates a double-barreled appearance of impropriety undermining the public’s trust that she acted without racial bias when dissenting in the case.” The youth activists contended that they had been harmed by the Colorado Supreme Court’s “disregard of [the dissenting judge’s] lack of independence, integrity and impartiality in deciding this case of significant public importance.” Colorado Oil and Gas Conservation Commission v. Martinez, No. 17SC297 (Colo. opinion Jan. 14, 2019; motion Jan. 24, 2019; order Jan. 28, 2019).
Oregon Appellate Court Found No State Obligation to Protect Public-Trust Resources from Climate Change
In a lawsuit brought in 2011 by minor children (now adults), the Oregon Court of Appeals ruled that the Oregon common-law public-trust doctrine did not impose a fiduciary obligation on the State to affirmatively protect public-trust resources from climate change impacts. The appellate court concluded that the doctrine was “rooted in the idea that the state is restrained from disposing or allowing uses of public-trust resources that substantially impair the recognized public use of those resources” and found no source under the doctrine for imposing duties on the State to “affirmatively act to protect public-trust resources from the effects of climate change.” The appellate court therefore directed a trial court to enter a declaratory judgment in favor the State defendants. The appellate court declined to address other issues raised by the plaintiffs on appeal, including whether the public-trust doctrine applied to resources other than submerged or submersible lands. Chernaik v. Brown, No. A159826 (Or. Ct. App. Jan. 9, 2019).
District Court Reaffirmed Stay of Proceedings and Government Filed Opening Ninth Circuit Brief in Juliana
On January 8, 2019, the federal district court for the District of Oregon denied the Juliana plaintiffs’ motion for reconsideration of its November 2018 order staying the proceedings pending a decision by the Ninth Circuit. Addressing questions raised by the plaintiffs concerning the status of the proceedings, the court reaffirmed that the proceedings were stayed until final disposition of the government’s Ninth Circuit appeal. The government filed its opening brief in the appeal on February 1. The government argued that the plaintiffs lacked standing and that the lawsuit “is categorically not a case or controversy within the meaning of Article III” because it would require courts to “review and assess the entirety of Congress’s and the Executive Branch’s programs and regulatory decisions relating to climate change and then to pass on the comprehensive constitutionality of all of those policies, programs, and inaction in the aggregate.” The government also contended that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims were without merit. In addition, the government asserted that there was no federal public trust doctrine and that, even if there were, the Clean Air Act had displaced it. The government further argued that even if the federal public trust doctrine existed and had not been displaced, it would not cover the “climate system” or atmosphere. The government also filed a three-volume set of excerpts from the record. Juliana v. United States, No. 18-36082 (9th Cir. opening brief, record excerpts: vol. 1, vol. 2, vol. 3 Feb. 1, 2019); No. 6:15-cv-01517 (D. Or. order Jan. 8, 2019).
Ninth Circuit Granted Voluntary Dismissal of Appeals of Decision on NEPA Analysis of Powder River Basin Resource Management Plans’ Climate Impacts
The Ninth Circuit Court of Appeals granted motions for voluntary dismissal of appeals of a Montana federal district court’s decision that found deficiencies in some aspects of the U.S. Bureau of Land Management’s (BLM’s) review under the National Environmental Policy Act (NEPA) of the climate change impacts of resource management plans (RMPs) for the Powder River Basin. The plaintiffs, federal defendants, coal company intervenors, and the State of Wyoming had all appealed the district court’s decision. The voluntary dismissals followed BLM’s publication in the Federal Register on November 28 of notices that it intended to prepare supplemental environmental impact statements and potential amendments for the RMPs. Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 18-35836 (9th Cir. Jan. 2, 2019).
Aerospace Company Agreed to Include New York City Pension Funds’ Shareholder Proposal for Greenhouse Gas Management Plan in Proxy Materials
In December 2018, New York City’s five public pension funds filed a lawsuit alleging that an aerospace company intended to unlawfully exclude from its proxy materials their shareholder proposal requesting that the company adopt a management plan for greenhouse gas emissions. The company subsequently withdrew its request to the Securities and Exchange Commission (SEC) for a no-action determination. The company also advised the SEC that it would include the proposal in its 2019 proxy materials. In January 2019, the federal lawsuit was resolved by a stipulation of settlement and dismissal filed by the parties. New York City Employees’ Retirement System v. TransDigm Group, Inc., No. 1:18-cv-11344 (S.D.N.Y. Jan. 18, 2019).
Nevada Federal Court Rejected NEPA Challenge to Oil and Gas Leases
The federal district court for the District of Nevada granted summary judgment to the federal defendants in Center for Biological Diversity and Sierra Club’s challenge to BLM’s leasing of approximately 198,000 acres of land in the Battle Mountain District in northern Nevada. The court found that BLM had satisfied NEPA’s “hard look” standard by analyzing in “general terms” what could happen—including climate change and greenhouse gas impacts—if lessees drilled for oil and gas. The court also found that BLM adequately considered the impacts of fracking, had not improperly relied on “stale data,” and had properly analyzed mitigation measures to protect mule deer and pronghorn antelope, and that its mitigation measures to protect wetlands were not arbitrary and capricious. In addition, the court upheld BLM’s decisions not to prepare an environmental impact statement (EIS) and to issue a Determination of NEPA Adequacy instead of an EIS or environmental assessment. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 3:17-cv-00553 (D. Nev. Jan. 15, 2019).
Conservation Groups Reached Agreement with Fish & Wildlife Service for Path Forward on Critical Habitat for Yellow-Billed Cuckoo
Friends of Animals, the Audubon Society of Greater Denver, and Center for Biological Diversity reached an agreement with the U.S. Fish and Wildlife Service (FWS) and other federal defendants to settle lawsuits challenging the defendants’ failure to designate critical habitat for the western distinct population segment of the yellow-billed cuckoo, which faces threats from climate change among other factors. The FWS published a 90-day finding on a delisting petition for the western DPS of the yellow-billed cuckoo, concluding that the petition presented substantial scientific or commercial information indicating that delisting may be warranted due to information on additional habitat being used by the species. The parties agreed to timeframes for a process of considering critical habitat that depends on whether and when the FWS publishes a 12-month finding that delisting is warranted. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:18-cv-02647 (D. Colo. Dec. 21, 2018); Friends of Animals v. U.S. Fish & Wildlife Service, No. 1:18-cv-01544 (D. Colo. Dec. 21, 2018).
Washington Federal Court Dismissed Some Preemption Claims in Lawsuit Challenging Denial of Water Quality Certification for Coal Export Facility
The federal district court for the Western District of Washington dismissed preemption claims challenging the State of Washington’s denial of a water quality certification for a coal export facility. The court found that neither the facility’s developer nor the rail company that would transport coal to the facility had standing for the preemption claims. Because a ruling in the plaintiffs’ favor on the preemption issue could have invalidated only some of the grounds for the denial of the water quality certification, the plaintiffs could not show that a ruling in their favor would redress their injury. The court also found that even if the plaintiffs had standing, neither the Interstate Commerce Commission Termination Act nor the Ports and Waterways Safety Act preempted the denial of the water quality certification. On January 24, 2019, both the state defendants and environmental groups that had intervened on their behalf filed motions for summary judgment seeking dismissal of the rail company’s claim that denial of the water quality certification was preempted by U.S. foreign policy favoring expansion of coal exports. Lighthouse Resources Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash. order Dec. 11, 2018; state motion and environmental group motion Jan. 24, 2019).
Federal Court Ruled for Sierra Club in FOIA Lawsuit Against EPA
On December 26, 2018, the federal district court for the Northern District of California granted Sierra Club’s motion for partial summary judgment in a Freedom of Information Act (FOIA) lawsuit seeking the external communications of seven U.S. Environmental Protection Agency (EPA) personnel. The court agreed with the plaintiffs that EPA had violated FOIA by not making a determination as to whether to comply with Sierra Club’s four requests within 20 business days of receipt. The court ordered EPA to produce the priority documents identified by Sierra Club at “approximately” Sierra Club’s proposed schedule. Sierra Club v. EPA, No. 3:18-cv-03472 (N.D. Cal. Dec. 26, 2018).
California Appellate Court Dismissed Appeal Challenging 2013 Version of Plan Bay Area
In an unpublished opinion, the California Court of Appeal ruled that adoption of the “Plan Bay Area 2040” sustainable community strategy in 2017 mooted an appeal concerning an earlier “Plan Bay Area.” Petitioners argued that Plan Bay Area could not feasibly meet greenhouse gas emissions reductions targets, that it violated the Equal Protection Clause of the Fourteenth Amendment, and that it usurped local land use autonomy. The appellate court said it was “disinclined” to analyze the infeasibility claim without the petitioners explaining the impacts of “meaningful changes” included in Plan Bay Area 2040. The appellate court also found that the petitioners had provided no reason to conclude that the other claims were likely to recur or raised declaratory relief issues that should be addressed by the court. The Court of Appeal said it was sympathetic to the argument that the issues raised were likely to evade judicial review, due to the required revision of the plan every four years and the time required for review. The court concluded, however, that the argument was not persuasive “in the absence of any meaningful indication by petitioners” that the factors warranting exercise of discretionary authority to consider the appeal were present in this case. Post Sustainability Institute v. Association of Bay Area Governments, No. A144815 (Cal. Ct. App. Jan. 16, 2019).
Pipeline Protesters Found Guilty of Trespass, Necessity Defense Rejected
A Town Justice in Cortlandt, New York, found three protesters of the Algonquin Incremental Market natural gas pipeline guilty of non-criminal trespass. The Town Justice rejected the defendants’ necessity defense. The three protesters—who spent 16 hours inside a section of pipeline in 2016—presented evidence on necessity related to climate change, risks from exploding gas pipelines in proximity to Indian Point nuclear power plant, and risks of adverse public health effects of shale gas for populations in and around gas pipelines. The Town Justice read her decision into the record, and news reports indicated she found that the defendants did not satisfy the elements for the necessity defense because they had not exhausted other available means of protest such as writing letters or intervening in the regulatory process. The Town Justice also rejected the prosecutor’s request that the defendants be required to perform 300 hours of community service not related to environmental causes. The defendants have filed a notice of appeal. People v. Berlin, No. __ (N.Y. Just. Ct. Jan. 8, 2019).
NEW CASES, MOTIONS, AND NOTICES
Supreme Court Review Sought of Decisions Upholding Subsidies for Nuclear Power in New York and Illinois
Parties challenging New York’s and Illinois’s zero-energy credit (ZEC) subsidies for nuclear energy filed petitions for writ of certiorari in the U.S. Supreme Court seeking review of the Second and Seventh Circuit rulings that upheld the ZEC programs. The two petitions argued that the Federal Power Act preempted the ZEC programs. They cited the Court’s decision in Hughes v. Talen Energy Marketing, LLC invalidating Maryland subsidies that guaranteed generators compensation at state-approved rates rather than at the wholesale market-based rate set in auctions approved by the Federal Energy Regulatory Commission (FERC). The petitioners argued that the Federal Power Act preempted not only subsidies where generators were required to sell their power in FERC-approved markets (as in Hughes) but also preempted subsidies like New York’s and Illinois’s that the petitioners said were designed to subsidize only generators that sell into FERC-approved markets even though they did not require sales in such markets. The petitioners told the Supreme Court that the New York case was the superior vehicle for review of the question. Electric Power Supply Association v. Rhodes, No. 18-879 (U.S., filed Jan. 7, 2019); Electric Power Supply Association v. Star, No. 18-868 (U.S., filed Jan. 7, 2019).
Supreme Court Review Sought of Ninth Circuit Decision Upholding Oregon Clean Fuel Program
American Fuel & Petrochemical Manufacturers, American Trucking Associations, Inc., and Consumer Energy Alliance filed a petition for writ of certiorari seeking review of the Ninth Circuit’s opinion upholding the Oregon Clean Fuel Program. In particular, they sought review on the questions of whether the Program’s regulation of fuels based on a “life-cycle” analysis constituted impermissible extraterritorial regulation. In addition, they sought review on whether the Program—which they contended was “designed to require and has the effect of requiring out-of-state competitors to subsidize in-state producers”—violated the Commerce Clause. The petitioners argued that the Ninth Circuit’s opinion implicated a circuit split on the extraterritorial regulation issue and that the Ninth Circuit’s conclusion that the program did not discriminate against interstate commerce was at odds with Supreme Court precedent and the decisions of other circuit courts of appeals. American Fuel & Petrochemical Manufacturers v. O’Keeffe, No. 18-881 (U.S., filed Jan. 7, 2019).
Michigan, Colorado Withdrew from Clean Power Plan Challenge; EPA Said It Intended to Finalize Affordable Clean Energy Rule in Spring 2019
The D.C. Circuit granted motions by Michigan and Colorado to withdraw as petitioners in the case challenging the Clean Power Plan. Both states sought to withdraw after newly elected attorneys general took office. Democrat Dana Nessel was elected attorney general for Michigan, replacing Republican Bill Schuette. In Colorado, Democrat Phil Weiser replaced Republican Cynthia Coffman as attorney general. In EPA’s most recent 30-day status report to the court, filed on December 21, 2018, EPA said its “intention and expectation remains that the Agency will be in a position to take final rulemaking action in the Spring of 2019” on its proposed “Affordable Clean Energy Rule,” for which the comment period closed on October 31, 2018. The D.C. Circuit granted EPA an extension for the filing of its January 2019 status report due to the partial government shutdown. The court directed EPA to file the report within 14 days of the restoration of appropriations and the Department of Justice’s resumption of usual civil litigation functions. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir.).
FERC Defended Decision Not to Consider Upstream and Downstream Greenhouse Gas Emissions in Environmental Reviews for Compressor Stations
FERC filed its response briefs in two proceedings challenging its environmental reviews of two projects involving construction, replacement, and modification of natural gas compression facilities. One project was in West Virginia, Kentucky, and Tennessee, and the other in New York. FERC argued that it had properly concluded that greenhouse gas emissions from upstream natural gas production activities and from downstream end use of gas were not indirect effects of the projects that it was required to consider under the National Environmental Policy Act. FERC contended that the petitioners were incorrect that the D.C. Circuit’s 2017 decision in Sierra Club v. FERC established that such emissions must be considered as indirect effects of natural gas projects in all circumstances. FERC distinguished the 2017 case from these two cases because the 2017 case involved a pipeline that would connect to specific power plants. In these two cases, FERC argued that the compressor station projects were not the legally relevant cause of upstream or downstream greenhouse gas emissions and that such emissions were not reasonably foreseeable. In the New York case (Otsego 2000), FERC also argued that it had acted reasonably when it announced in its rehearing order in this proceeding that it would end “its temporary practice of providing generic emissions estimates when the upstream production and downstream use of natural gas are not cumulative or indirect impacts of the proposed natural gas transportation project.” Birckhead v. Federal Energy Regulatory Commission, No. 18-1218 (D.C. Cir. Jan. 25, 2019); Otsego 2000, Inc. v. Federal Energy Regulatory Commission, No. 18-1188 (D.C. Cir. Jan. 25, 2019).
California Counties and Municipalities and Amici Argued for Affirmance of Order Remanding Climate Change Cases to State Court
On January 22, 2019, six California municipalities and counties (the plaintiffs) filed a brief urging the Ninth Circuit Court of Appeals to reject fossil fuel companies’ appeal of a district court order remanding the plaintiffs’ climate change cases to state court. The plaintiffs argued that the Ninth Circuit only had jurisdiction to consider the fossil fuel companies’ appeal of the district court’s determination that there was no basis for removal under the federal officer removal statute. The plaintiffs contended that the district court’s determinations on the companies’ other grounds for removal were not reviewable. The plaintiffs further argued that even if the Ninth Circuit concluded it had jurisdiction to consider the companies’ other grounds for removal, it should reject those grounds. First, the plaintiffs asserted that their claims were pleaded under state law and did not “arise under” federal common law. They argued that the companies’ argument that the claims actually were governed by federal common law was a preemption defense that was insufficient as a basis for removal. The plaintiffs also noted that the district court had recognized that any federal common law that might have governed their claims was displaced by the Clean Air Act, and that federal common law therefore could not supersede their state law claims. The plaintiffs also urged the Ninth Circuit to reject the companies’ other grounds for removal as meritless. They argued that the Clean Air Act did not completely preempt their claims, and that their claims did not necessarily raise disputed and substantial federal issues. In addition, the plaintiffs said neither the Outer Continental Shelf Lands Act, the federal enclave doctrine, nor the bankruptcy removal statute provided a basis for removal. Finally, the plaintiffs argued that the defendants had waived the right to assert admiralty jurisdiction as a basis for removal but that, in any event, admiralty jurisdiction alone would not be grounds for removal and there was no admiralty jurisdiction.
On January 29, 2019, eight amicus briefs were filed in support of the plaintiffs. The Center for Climate Integrity and a group of scholars and scientists “with particular interest in public information and communication about climate change and how the public and public leaders learn about and understand climate change” submitted a brief asserting that the fossil fuel companies had actual knowledge of the risks of their products and had taken “proactive steps to conceal their knowledge and discredit climate science” while at the same time taking steps to protect their own assets from the impacts of climate change. Another group of scientists and scholars—who described themselves as having devoted much of their professional lives “to study, writing, and teaching one or more aspects of climate science, including sea level rise and its impacts on coastal communities”—submitted a brief that they intended to assist the court in understanding “the relevant science and the unavoidable adaptation expenses” faced by the plaintiffs. The California State Association of Counties, three local government associations, and eight states submitted amicus briefs focused on arguments favoring preservation of state law claims to address climate change impacts and limitations on removal jurisdiction. Senator Sheldon Whitehouse of Rhode Island submitted a brief “to provide context for arguments made by amicus curiae United States Chamber of Commerce” in support of reversal of the remand order. Whitehouse said the Chamber’s actions reflected “decades-long campaign of disinformation, obstruction, and political intimidation designed to prevent democratically accountable branches of government from adopting any policies that would reduce carbon pollution”—and that the Ninth Circuit “should assess the Chamber’s arguments accordingly.” The consumer advocacy organization Public Citizen submitted an amicus brief arguing that the federal officer removal statute did not provide a basis for removal. Natural Resources Defense Council filed a brief arguing that neither federal common law nor the Clean Air Act preempted all state law claims, and that there was no “unique federal interest in climate change” that would preempt all state law claims. County of San Mateo v. Chevron Corp., Nos. 18-15499 (9th Cir. plaintiffs-appellees’ brief Jan. 22, 2019; amicus briefs Jan. 29, 2019).
Endangered Species Act Lawsuit Filed Challenging Federal Approvals for Montana Silver and Copper Mine Project
A “coalition of traditional cultural leaders from the Ksanka Band of the Ktunaxa Nation and local, regional, and national conservation organizations” filed a lawsuit in the federal district court for the District of Montana asserting that federal agencies failed to comply with the Endangered Species Act when they authorized the Rock Creek Mine project in the Cabinet Mountains in northwest Montana. The complaint alleged that the copper and silver mine project would tunnel under one of the region’s last undeveloped habitats for two threatened species, grizzly bear and bull trout. (The complaint alleged that bull trout were threatened by a number of factors and were particularly vulnerable to climate change because they require “especially cold water to spawn and rear.”) The plaintiffs contended that the FWS had concluded that a 2006 no-jeopardy determination for the grizzly bear remained valid without considering new mortality data. The plaintiffs also challenged the FWS’s biological opinion for the bull trout as well as U.S. Forest Service authorizations that relied on the FWS determinations. Ksanka Kupaqa Xaʾⱡȼin v. U.S. Fish & Wildlife Service, No. 9:19-cv-00020 (D. Mont., filed Jan. 25, 2019).
Lawsuit Filed Challenging Failure to Designate Critical Habitat for Rusty Patched Bumble Bee
Natural Resources Defense Council (NRDC) filed a lawsuit in the federal district court for the District of Columbia challenging the federal government’s failure to designate critical habitat for the rusty patched bumble bee, which was listed as endangered on January 11, 2017. The complaint alleged that the species had disappeared from 87% of the counties it once occupied and identified habitat loss, pesticide use, climate change, and disease as threats to the bee. NRDC asserted that the failure to designate critical habitat constituted a violation of the Endangered Species Act or, alternatively, a violation of the Administrative Procedure Act. Natural Resources Defense Council, Inc. v. Bernhardt, No. 1:19-cv-00078 (D.D.C., filed Jan. 15, 2019).
Dakota Action Pipeline Protesters Seek Dismissal from Pipeline Developers’ RICO Suit
In December 2018 and January 2019, two individual defendants moved for their dismissal from the Dakota Action Pipeline (DAPL) developers’ RICO action against Greenpeace and other environmental groups and activists who opposed and protested against DAPL. Krystal Two Bulls—who described herself as “an Oglala Lakota and Northern Cheyenne woman, United States Army veteran, and longtime activist for environmental justice, Indigenous Peoples’ rights, and anti-militarism—argued both that the plaintiffs had failed to serve her within the allotted time and that the plaintiffs’ claims were inconsistent with the First Amendment and inadequately pled. The plaintiffs responded that Two Bulls had participated with other defendants in a criminal enterprise “to finance, organize, and perpetrate violence, vandalism, and other illegal activity to obstruct construction and operation” of DAPL; they contended that the First Amendment did not protect the alleged conduct. They also asserted that Two Bulls was liable for violations of North Dakota racketeering law, criminal trespass, and conspiracy. Another individual defendant—who described herself as a lifelong Arizona resident “raised as a person of faith and conscience” who “has spent the majority of her young life engaged in community service and public interest activism”—argued that there was no allegation that she was connected in any way to the alleged enterprise other than “an apparent shared desire to stop the pipeline.” She also argued that the court lacked personal jurisdiction and that there was insufficient process and service of process. Energy Transfer Equity, L.P. v. Greenpeace International, No. 1:17-cv-00173 (D.N.D.).
Summary Judgment Motion Filed in Lawsuit Challenging EPA’s Failure to Implement Landfill Emission Guidelines
A month after the federal district court for the Northern District of California denied EPA’s motion to dismiss, eight states and Environmental Defense Fund (EDF) filed a motion for summary judgment seeking an order compelling EPA to implement its emission guidelines for existing municipal solid waste landfills. The states and EDF said EPA had already stipulated that it had not reviewed and responded to the compliance plans submitted by some states, and that it had not promulgated a federal plan for states that did not submit approvable plans. The states and EDF contended that these actions were nondiscretionary duties and that they were therefore entitled to summary judgment since there were no disputed issues of fact. They urged the court to set the following deadlines because “time is of the essence in reducing greenhouse gas emissions to avoid the most severe consequences of climate change”: (1) review of existing state plans within 30 days; (2) promulgation of a federal plan within five months; and (3) response to any future state plans within 60 days of submission. California v. EPA, No. 4:18-cv-03237 (N.D. Cal. Jan. 23, 2019).
Car Dealer Association Challenged Colorado’s Adoption of California Low Emission Vehicle Standards
A not-for-profit association representing new car and truck dealers filed a lawsuit challenging Colorado’s adoption of California’s low emission vehicle emission standards (LEV III) for light-duty passenger vehicles and trucks and medium-duty passenger vehicles. The plaintiff asserted that the Colorado Air Quality Control Commission failed to complete emission control studies that were statutory prerequisites for motor vehicle emission control regulations and aftermarket catalytic converter standards. The plaintiff also alleged that the Colorado Air Pollution Control Division had failed to adequately consider the costs of the regulation in violation of the Colorado Air Pollution Prevention and Control Act (APPCA) and the Colorado Administrative Procedure Act. In addition, the plaintiff asserted a failure to provide adequate time for review and comment of a revised economic impact analysis and also alleged that the Commission relied on “materially and statutorily flawed” documents as the justification for the regulations. The plaintiff also said the Colorado governor’s executive order directing the California Department of Health and Environment to adopt California’s LEV III standards violated the separation of powers and that the Commission’s “rigid adherence” to the order violated the Colorado Constitution and the Administrative Procedure Act. Colorado Automobile Dealers Association v. Colorado Department of Public Health & Environment, No. 2019CV30343 (Colo. Dist. Ct., filed Jan. 28, 2019).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
UK Court of Appeal Declined to Hear Plan B’s Climate Case
On January 25, 2019, the Court of Appeal rejected Plan B’s appeal of the High Court’s denial to hear their climate change case, marking the end of the appeal process. Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, had filed a climate change lawsuit against the Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State). Plan B Earth was joined in the lawsuit by 11 citizen claimants ranging in age from 9 to 79 who are impacted by climate change in a variety of ways. The claimants alleged that the Secretary of State violated the Climate Change Act 2008 (the 2008 Act) and other law by failing to revise a 2050 carbon reduction target in light of new international law and scientific developments. The Court of Appeal concluded that none of the seven stated grounds had a real prospect of success. The court did not find an error in law in regard to an alleged failure to exercise discretion to amend the 2050 target, nor did the court find that the Secretary of State misunderstood the Paris Agreement or the advice of the Committee on Climate Change. While acknowledging that a governmental response to the need for environmental protection engages human rights in general, the court declined to find that relevant given its other findings that officials exercised proper discretion and understanding of the Paris Agreement and climate-related advice. Plan B Earth v. Secretary of State for Business, Energy, and Industrial Strategy, No. C1/2019/1750 (Ct. App. (Civ. Div.) Jan. 22, 2019).
Irish High Court Heard Climate Change Suit from Advocacy Group Alleging the Irish National Mitigation Plan Violates the Law for Setting Inadequate Greenhouse Gas Emission Reductions
The Friends of the Irish Environment (FIE) case challenging the Irish government’s approval of the National Mitigation Plan in 2017 was argued before the High Court on January 22, 2019. FIE requested the High Court quash the National Mitigation Plan and order the government to write a new plan. FIE argues that the National Mitigation Plan violated Ireland’s Climate Action and Low Carbon Development Act 2015, the Constitution of Ireland, and human rights obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life. FIE alleges that the National Mitigation Plan, which seeks to cut emissions by 80% by 2050 compared to 1990 levels, is not “fit for purpose” because it is not designed to achieve substantial emissions reductions within the next few decades. The Irish government has not consented to make the legal documents related to this case public. Since the case documents were not available for review, this case summary is based on FIE’s description of its allegations and public media reporting. Friends of the Irish Environment v. Ireland, No. __ (H. Ct.)
Advocacy Groups and Provincial Governments Intervened in Ontario’s Suit Alleging That Canada’s Greenhouse Gas Pollution Pricing Act Is Unconstitutional
Multiple parties have intervened in the case filed by the Province of Ontario in the Ontario Court of Appeal seeking consideration of whether the Greenhouse Gas Pollution Pricing Act (GGPPA) is unconstitutional. Intervening parties include a number of advocacy groups and the governments of Saskatchewan, New Brunswick, and British Columbia. The GGPPA became law in June 2018 and as its name implies, allows the national government to set a price on carbon, charging for greenhouse gas emissions under a carbon tax program. Ontario alleges that Parliament exceeded its constitutional authority in passing the GGPPA, arguing that the GGPPA is not authorized by the “national concern branch of the peace, order, and good government power” because the provinces are capable of regulating greenhouse gas emissions themselves and that “there is no need to expand the scope of federal jurisdiction to impose a one-size-fits-all federal carbon price.” Ontario further argues that even if the GGPPA falls within the scope of a national concern, the GGPPA represents an unconstitutional tax because it does not provide an adequate nexus between the charges it imposes and its regulatory purpose. Ontario v. Canada re Greenhouse Gas Pollution Pricing Act, 2019, No. C65807 (Can. Ont. C.A.).
