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 #119.
FEATURED CASE
Pennsylvania Federal Court Dismissed Lawsuit Challenging Trump Administration’s Climate Change Deregulatory Actions as Unconstitutional
The federal district court for the Eastern District of Pennsylvania dismissed a lawsuit brought by Clean Air Council and two minors seeking to block the Trump administration’s climate change deregulatory efforts on the grounds that they violated the plaintiffs’ constitutional rights. The court concluded that it did not have jurisdiction to hear the plaintiffs’ claims because neither Clean Air Council nor the individual plaintiffs had established standing. Regarding Clean Air Council, the court found that neither the complaint nor an affidavit submitted by the plaintiffs included specific harms suffered by the organization’s members. With respect to the individuals, the court found that while their alleged physical harms constituted particularized and concrete injuries, the injuries were not imminent or certain. The court further found that the alleged injuries could not be traced to the regulatory rollbacks and that a favorable decision by the court would not redress the injuries. In addition, the court said that prudential considerations regarding the separation of powers precluded jurisdiction. In the alternative, the court found that the plaintiffs failed to state a viable claim. The court said there was no legally cognizable due process right to environmental quality, rejecting the plaintiffs’ argument that the right to a life-sustaining climate system was a liberty interest guaranteed by the Fifth Amendment. The court said the District of Oregon’s decision to the contrary in Juliana “certainly contravened or ignored longstanding authority.” The court also found that the plaintiffs’ claim did not meet the requirements for a state-created danger claim and that the plaintiffs had not stated a claim of invasion of their due process right to property. In addition, the court held that the Ninth Amendment did not provide substantive rights to sustain the plaintiffs’ action, and that the public trust claim had no basis in law. Clean Air Council v. United States, No. 17-4977 (E.D. Pa. Feb. 19, 2019).
DECISIONS AND SETTLEMENTS
Supreme Court Declined to Consider Religious Order’s Pipeline Challenge
The U.S. Supreme Court denied a petition for writ of certiorari in which a religious order of Roman Catholic women sought review of the Third Circuit Court of Appeals’ decision affirming dismissal of their Religious Freedom Restoration Act (RFRA)-based challenge to the Federal Energy Regulatory Commission’s approval of a natural gas pipeline that would run through land in Pennsylvania owned by the order. Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, No. 18-548 (U.S. Feb. 19, 2019).
D.C. Circuit Granted FERC Motion for Voluntary Remand of Case Concerning Timeliness of Determination on Water Quality Certification for Constitution Pipeline
On February 28, 2019, the D.C. Circuit granted the Federal Energy Regulatory Commission’s (FERC’s) motion for voluntary remand of a proceeding in which a natural gas pipeline developer sought review of FERC’s determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the pipeline project. The pipeline project at issue is the Constitution Pipeline, which would extend for approximately 124 miles from Pennsylvania through four counties in New York. The developer first submitted an application for a water quality certification to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and 2015. NYSDEC denied the application in April 2016, and the Second Circuit upheld the denial. FERC told the D.C. Circuit that it wished to reconsider the orders challenged by the pipeline developer in light of the court’s recent decision in Hoopa Valley Tribe v. FERC, in which the D.C. Circuit held that withdrawal and resubmission of water quality certification applications “does not trigger” a new one-year statutory period of review. FERC said Hoopa Valley left open questions about whether “wholly new” requests can trigger a new statutory review period and about “how different” an application would have to be to trigger a new review period. FERC said it would permit the parties on remand to submit supplemental materials on the significance of the Hoopa Valley decision. Constitution Pipeline Co. v. Federal Energy Regulatory Commission, No. 18-1251 (D.C. Cir. Feb. 28, 2019).
D.C. Circuit Upheld FERC Approval for Mountain Valley Pipeline, Rejected Claims Regarding Review of Downstream Emissions
In an unpublished judgment, the D.C. Circuit Court of Appeals denied petitions for review of FERC’s approval of the Mountain Valley natural gas pipeline, which would extend 300 miles from West Virginia to Virginia. The court found that FERC’s conclusion that there was a market need for the project was reasonable and supported by substantial evidence. The court rejected the contention that the climate change impacts of downstream combustion were not adequately considered. The court found it unnecessary to consider the petitioners’ argument that FERC had improperly concluded that the downstream emissions were not reasonably foreseeable impacts of the project because FERC had “provided an estimate of the upper bound of emissions resulting from end-use combustion” and given “several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under [the National Environmental Policy Act (NEPA)] or the Natural Gas Act.” The D.C. Circuit noted that the petitioners neither proffered an alternative tool for assessing incremental climate impacts of downstream emissions nor countered all of FERC’s reasons for not using the Social Cost of Carbon tool. The court also rejected the petitioners’ other NEPA and Natural Gas Act arguments as well as Takings Clause, due process, and National Historic Preservation Act challenges. Appalachian Voices v. Federal Energy Regulatory Commission, Nos. 17-1271 et al. (D.C. Cir. Feb. 19, 2019).
Agreement Reached to Resolve Citizen Suit Alleging EPA Failed to Prepare Timely Reports on Renewable Fuel Standard Program
On February 22, 2019, the U.S. Environmental Protection Agency (EPA) published notice of a proposed partial consent decree that would partially resolve a citizen suit brought by Sierra Club to compel EPA (1) to submit triennial reports to Congress on the Renewable Fuel Standard program’s environmental and resource impacts and (2) to complete an “anti-backsliding” study to determine the program’s impacts on air quality. Sierra Club said EPA’s delay in preparing the reports undermined the reporting requirements’ purpose of ensuring that the Renewable Fuel Standard program was addressing climate change without adversely affecting the environment. The consent decree would require EPA to complete the anti-backsliding study by March 30, 2020 and would also provide that if the parties could not reach agreement on deadlines for any follow-up action after completion of the anti-backsliding study, the parties would submit a joint motion to govern further proceedings. The parties also stipulated to the dismissal with prejudice of Sierra Club’s claim regarding the triennial reports since EPA had issued a report in June 2018. Sierra Club v. Wheeler, No. 1:17-cv-02174 (D.D.C. Feb. 22, 2019).
Montana District Court Largely Denied Keystone XL Developer’s Request to Conduct Off-Right-of-Way Activities During New Review; Developer Sought Stay from Ninth Circuit
The federal district court for the District of Montana granted in part but largely denied a motion by the developers of the Keystone XL oil pipeline for a stay pending appeal of the injunction barring construction and preconstruction activities for the pipeline. The court enjoined work on the pipeline after finding that the Department of State violated the National Environmental Policy Act (NEPA) and Administrative Procedure Act when it reversed the Obama administration’s denial of a cross-border permit for the pipeline. In the stay motion, the developer sought permission to conduct three off-right-of-way activities. In its order on the motion, the court found that the developer was unlikely to prevail on appeal, including on its arguments that the Department of State sufficiently analyzed cumulative greenhouse gas impacts and adequately explained its decision to reverse course and approve the permit. With respect to the policy shift, the court said the Department’s “discretion to give more weight to energy security” did not excuse it from ignoring the Obama administration’s “factually-based determinations” regarding “Climate Change-Related Foreign Policy Considerations.” The court further found that both the developer and the plaintiffs had shown irreparable injury; that off-right-of-way activities in areas that had not been surveyed or were not part of the earlier supplemental environmental impact statement would further threaten irreparable injury to the plaintiffs; and that the public interest weighed in favor of a complete NEPA review. The court therefore allowed certain preconstruction activities to take place in already-surveyed areas but otherwise left the injunction on preconstruction activities in effect. On February 21, 2019, the developer filed a motion in the Ninth Circuit for a stay pending appeal. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. supplemental order on motion to stay Feb. 15, 2019), No. 18-36068 (9th Cir. motion for stay Feb. 21, 2019).
North Dakota Federal Court Dismissed RICO Claims Against DAPL Protestors
The federal district court for the District of North Dakota ruled that the developers of the Dakota Access Pipeline (DAPL) failed to establish claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Greenpeace and three individual anti-pipeline protestors. Greenpeace allegedly raised money based on false information about DAPL’s impact on the environment and Native American lands and provided funds to support DAPL protestors. One of the individual defendants was allegedly an organizer for the Red Warrior Camp, an encampment of protestors who allegedly delayed the construction of DAPL and damaged plaintiffs’ property. A second individual allegedly received training from Earth First! (which had already been dismissed from the lawsuit) and used an oxy-acetylene cutting torch to cut holes in the pipeline in Iowa. The third individual, a pipeline campaigner for Greenpeace, allegedly trained anti-pipeline protestors in Louisiana. Other named individual defendants had not been served. The court found that the plaintiffs’ allegations were insufficient to establish a RICO “enterprise” because although the defendants shared the common purpose of opposing DAPL, there was “no ongoing organization, no continuing unit, and no ascertainable structure distinct from the alleged RICO violations.” The court also pointed out problems with the amended complaint’s allegations of a pattern of racketeering activity, including shortcomings in the allegations of predicate acts of wire and mail fraud, drug trafficking, money laundering, and interstate transportation of stolen property, and the absence of allegations concerning how these alleged predicate acts caused the plaintiffs’ injury. The court dismissed the RICO claims with prejudice, declined to exercise jurisdiction over the remaining state-law claims, and denied plaintiffs’ motion for an extension of time to serve. Energy Transfer Equity, LP v. Greenpeace International, No. 1:17-cv-00173 (D.N.D. Feb. 14, 2019).
Federal Magistrate Found NEPA Violations in Updated Environmental Assessment for Montana Coal Mine Expansion
A federal magistrate judge in the District of Montana recommended that the Office of Surface Mining (OSM) be required to conduct new NEPA analysis for a mining plan modification that would permit expansion of a surface coal mine in southern Montana. In a previous proceeding, the district court found that the initial NEPA review for the modification was insufficient and remanded for additional review. In the new lawsuit, the magistrate judge found that the updated environmental assessment (EA) and finding of no significant impact still violated NEPA. As an initial matter, the magistrate judge concluded that an environmental group that was not a party to the previous litigation had standing and that res judicata therefore did not bar new arguments raised in the new lawsuit—including an argument that OSM failed to apply the social cost of carbon protocol in examining greenhouse gas impacts. On the merits, the magistrate judge agreed with the plaintiffs that the defendants failed to take a hard look at the impacts of coal transportation and the non-greenhouse gas effects of coal combustion. The magistrate also agreed with the plaintiffs that since OSM quantified the mine expansion’s economic benefits, it was also required to quantify the costs associated with greenhouse gas emissions or provide a non-arbitrary reason for not doing so. The magistrate then found that the reasons given for not using the social cost of carbon tool as a means to quantify the costs of greenhouse gas emissions were arbitrary. The EA had stated that there was not a consensus on what fraction of the social cost of carbon should be assigned to a coal producer; that it was not certain that greenhouse gas emissions would be reduced in the absence of the mine’s expansion since power plants have alternative sources of coal; and that there were uncertainties regarding the “specific and accurate” social cost of carbon for the proposed action. The magistrate found that the decision not to prepare an environmental impact statement was arbitrary and capricious, but rejected claims that the defendants improperly piecemealed their NEPA analysis or that the Office of Surface Mining arbitrarily failed to consider the validity of the underlying lease. Regarding remedy, the magistrate found that concerns regarding the detrimental impacts of vacating the approval of the mining plan modification remained valid and therefore recommended that vacatur be deferred to allow the defendants time to correct the NEPA violations. WildEarth Guardians v. Zinke, No. 1:17-cv-00080 (D. Mont. Feb. 11, 2019).
Federal Court Declined to Dismiss Challenge to “Two-for-One” Order but Found That Plaintiffs Had Not Yet Established Standing
The federal district court for the District of Columbia denied the federal government’s motion to dismiss a lawsuit challenging President Trump’s “Two-for-One” executive order, but also denied the plaintiffs’ motion for summary judgment on the issue of standing. In denying the motion to dismiss for lack of standing, the court found that the plaintiffs had plausibly alleged that the order—which requires agencies to identify two regulations for potential repeal for every new proposed regulation—had delayed issuance of a regulation and that the delay would likely cause harm to at least one of the plaintiff organizations’ members that could be redressed by invalidation of the order. In denying the motion for partial summary judgment, the court found that the plaintiffs had failed to demonstrate associational standing as a matter of undisputed material fact with respect to any of the five regulatory measures that the plaintiffs contended had been delayed due to the order, including efficiency standards for cooking products and water heaters. The court also found that the plaintiffs failed to establish organizational standing based on the executive order’s undermining of their ability to advocate for health and safety, consumer protection, the environment, and improved working conditions. The court said the case “currently sits in a liminal state” since it cannot not consider the merits without determining that it had jurisdiction. The court planned to hold a status conference to discuss next steps. Public Citizen, Inc. v. Trump, No. 17-cv-253 (D.D.C. Feb. 8, 2019).
Federal Court Upheld Denial of Petition to Remove Golden-Cheeked Warbler from Endangered Species List
The federal district court for the Western District of Texas upheld the U.S. Fish and Wildlife Service’s (FWS’s) 90-day finding that supported denial of a petition to remove the golden-cheeked warbler from the list of endangered species. A 2014 review of the warbler’s status found that the warbler was still threatened by widespread destruction of its habitat; at that time, the warbler had been classified as “critically vulnerable” to climate change. In 2015, a petition to delist was submitted, and in 2016, the FWS found that the petition to delist failed to present information regarding the threats of habitat destruction and fragmentation and regarding how those threats affected analysis of other potential threats. The FWS also found that the petition to delist failed to present any information on other potential threats to the warbler’s survival, including climate change. In upholding the FWS’s findings, the court rejected the argument that the review of the petition to delist was overly stringent, as well as the argument that the FWS acted arbitrarily and capriciously by listing the warbler as endangered while refusing to designate critical habitat. General Land Office of the State of Texas v. U.S. Fish & Wildlife Service, No. 1:17-cv-00538 (W.D. Tex. Feb. 6, 2019).
Washington Federal Court Allowed Environmental Groups to Proceed with Claim that Corps of Engineers Unlawfully Limited Its Jurisdiction by Using Improper High Tide Line
The federal district court for the Western District of Washington denied a U.S. Army Corps of Engineers motion to dismiss a claim that the Corps arbitrarily and capriciously limited its jurisdiction in the Seattle District under Section 404 of the Clean Water Act by deciding not to proceed with a recommended change to the high tide line boundary. The plaintiffs—three environmental advocacy groups—contended that shoreline armoring projects such as seawalls and bulkheads damage the Puget Sound ecosystem and that the Corps was unlawfully limiting its jurisdiction over such projects by using a mean higher high water (MHHW) boundary rather than the mean annual highest tide (MAHT). The plaintiffs alleged that harms associated with shoreline armoring projects would increase due to climate change, as sea levels rise and demand for armoring projects increases. They asserted that the Seattle District had adopted MHHW for the high tide line because it was the highest tidal elevation data available at the time the Clean Water Act was enacted, but that it was frequently exceeded and that data for higher tidal elevations, including MAHT, was now accessible. The court rejected the Corps’ argument that that a memo from the commander of the Corps’ Northwestern Division directing that the Seattle District “shift away from further consideration” of changing the jurisdictional boundary was a not a final agency action. The court found that the memo marked the consummation of the Corps’ decision-making on whether to maintain its use of MHHW as the boundary. The court also said the memo determined rights and obligations and gave rise to direct and appreciable legal consequences since it “indefinitely stopped” any consideration of a change to the boundary. In addition, the court found that the plaintiffs had adequately pleaded standing. Sound Action v. U.S. Army Corps of Engineers, No. 2:18-cv-00733 (W.D. Wash. Feb. 5, 2019).
California Appellate Court Said Addendum to 1991 EIR Did Not Have to Consider Climate Change
In an unpublished decision, the California Court of Appeal affirmed a trial court’s ruling that an addendum prepared pursuant to the California Environmental Quality Act to review changes to a condominium development on the shore of Big Bear Lake did not have to consider climate change. The appellate court found that substantial evidence reflected that the potential environmental impact of greenhouse gas emissions was known in 1991 when an environmental impact report (EIR) was prepared and that the initial study specifically discussed whether the project would negatively impact climate. The appellate court also upheld all but one of the other challenged aspects of the trial court’s decision. Friends of Big Bear Valley v. County of San Bernardino, No. E067447 (Cal. Ct. App. Feb. 27, 2019).
New York Court Allowed Attorney General to Move to Dismiss Exxon’s Prosecutorial Misconduct Defenses in Climate Fraud Case, Said Discovery on Defenses Could Continue in Meantime
On February 27, 2019, a New York trial court issued a notice allowing the New York attorney general to file a motion to dismiss certain defenses asserted by Exxon Mobil Corporation (Exxon) in the attorney general’s climate change fraud suit against Exxon. The attorney general contended that five of Exxon’s defenses that were based on allegations of prosecutorial misconduct were “inadequately pleaded and irrelevant.” In addition, the attorney general told the state court that the theory behind Exxon’s selective-enforcement claim had already been rejected by the federal district court for the Southern District of New York. In the alternative, the attorney general said it would file motion for a protective order limiting discovery in connection with the five defenses. Exxon opposed the attorney general’s request to file the motions, arguing that the motions were meritless and premature. Exxon said the attorney general could not rely on the federal court decision, which Exxon said did not consider the viability of the state-law defenses is asserting in this case. Exxon also noted that the attorney general had told the Second Circuit that it should affirm dismissal of Exxon’s constitutional claims because Exxon would have a full opportunity to raise objections to the state civil enforcement action. Citing federal and state court decisions in Texas that were generally supportive of Exxon’s theories and claims, Exxon also urged the court to reject the attorney general’s “cherry picking of judicial authority.” In granting permission for the attorney general to file its motion, the court noted that the parties “are involved in disputes in multiple fora and appear to have taken different positions on various issues in different courts.” Nonetheless, the court allowed the motion; the court also said Exxon could proceed with discovery on its defenses. The next conference scheduled in the case is on June 25, 2019. People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Feb. 27, 2019).
CARB Announced Approval of Settlement of SoCalGas That Will Fully Mitigate Methane Released During Aliso Canyon Gas Leak
On February 25, 2019, the California Air Resources Board (CARB) announced that a California Superior Court had approved a settlement with Southern California Gas Company (SoCalGas) in the lawsuit arising from the Aliso Canyon natural gas leak that began in 2015. CARB said the settlement, which was announced in August 2018, would fully mitigate the 109,000 metric tons of methane released during the leak. SoCalGas must pay $119.5 million, which includes $26.5 million for addressing methane emissions from dairies, as well as $45.4 million for a supplemental environmental project run by the City of Los Angeles, Los Angeles County, and the California Attorney General’s Office; $21 million in civil penalties; $19 million to cover governmental response and litigation costs; and $7.6 million to be held in reserve for mitigation, if needed. CARB said that biomethane generated at dairies would be injected into the pipeline system for use as transportation fuel, which would help to prevent localized nitrogen oxides emissions generated by biomethane’s use for electrical generation. People v. Southern California Gas Co., No. BC602973 (Cal. Super. Ct. Feb. 25, 2019).
New Jersey Juries Awarded Compensation to Oceanfront Property Owners for Property Lost to Protective Dune System
A New Jersey state court jury reportedly awarded $330,000 to oceanfront homeowners in Ocean County as compensation for loss of land and oceanfront views due to the State’s construction of a dune system intended to protect the shoreline. The Associated Press article indicated that in the fall of 2018 a jury in another case awarded a Point Pleasant Beach homeowner $260,260 for the loss of his property due to the dune system. LaPlante v. State, No. __ (N.J. Super. Ct. Feb. 14, 2019).
Hawai‘i Court Ordered More Rigorous Implementation of Solar Water Heater Mandate
In a ruling from the bench on February 5, 2019, the senior environmental court judge for the First Circuit Court in Hawai‘i ordered the Department of Business, Economic Development and Tourism to adhere to a state law mandating that new single-family homes include solar water heaters and to allow variances for gas water heaters only on a case-by-case base. The plaintiffs said that “[b]y issuing thousands of variances, the agency has reinforced Hawaiʻi’s reliance on fossil fuels—to our collective peril—instead of empowering residents to move to clean, renewable energy sources that will reduce their energy costs.” The plaintiffs also said the intent of the law was that the variance option be “rarely, if ever, exercised.” The court is expected to issue a written order. Hawai‘i Solar Energy Association v. Department of Business, Economic Development and Tourism, No. 1CC181001398 (Haw. Cir. Ct. Feb. 5, 2019).
NEW CASES, MOTIONS, AND NOTICES
Juliana Plaintiffs Asked Ninth Circuit to Bar Federal Authorizations of Fossil Fuel Development and Infrastructure During Government’s Appeal; Government Opposed Request; Plaintiffs Also Filed Answering Brief
On February 7, 2019, the youth plaintiffs in the climate change-based constitutional case against the federal government filed an “urgent motion” in the Ninth Circuit Court of Appeals seeking a preliminary injunction pending the resolution of the government’s appeal of the Oregon district court’s denial of the governments’ motions to end the case. The plaintiffs asked the court to bar the government from authorizing the following activities “in the absence of a national plan that ensures the … authorizations are consistent with preventing further danger” to the plaintiffs: (1) mining or extraction of coal on federal public lands; (2) offshore oil and gas exploration, development, or extraction on the Outer Continental Shelf; and (3) development of new fossil fuel infrastructure such as pipelines and fossil fuel export facilities. The plaintiffs argued that the immediate relief was necessary to preserve their ability to obtain a remedy that would address their injuries and protect the public interest. The plaintiffs filed 16 declarations in support of their motion, including the declarations of several individual plaintiffs attesting to “intense impacts to their mental and emotional wellbeing” and declarations of the plaintiffs’ experts on climate science, climate change impacts, and the connection between climate change and the government’s decisions and actions.
On February 19, 2019, the government filed its opposition to the plaintiffs’ motion, asserting that it should be denied both because of the plaintiffs’ “long delay” in seeking preliminary relief and also because the plaintiffs did not satisfy any of the four factors for preliminary injunctive relief. The government argued that the timing of the plaintiffs’ motion exposed their strategy of delaying appellate review since interlocutory appellate review would have been automatic had the plaintiffs sought and received preliminary injunctive relief. On the merits of the motion, the government contended that the plaintiffs were required to meet a heightened standard since they sought relief that went “well beyond simply maintaining the status quo.” Reiterating the arguments made in its opening brief, the government said the plaintiffs were unlikely to prevail on their claims. The government also argued that the plaintiffs had not met their burden of showing that they would be irreparably harmed in the absence of the relief during the pendency of the appeal. Finally, the government asserted that the balance of harms and the public interest both weighed against granting injunctive relief. The government again cited the plaintiffs’ delay in seeking preliminary relief and contested the plaintiffs’ “blithe assertion” that the injunction would not result in harm to employment, the economy, energy security, or the treasury.
On February 22, 2019, the plaintiffs filed their answering brief on the merits of the appeal. The brief began by asking the Ninth Circuit to reconsider its certification of the interlocutory appeal. The plaintiffs argued that the district court orders did not address most of the plaintiffs’ claims, meaning that—except for the issues relating to standing and whether the lawsuit was required to be brought under the Administrative Procedure Act (APA)—the case would go forward regardless of how the Ninth Circuit ruled. The plaintiffs further argued that the APA and standing issues did not meet the test for interlocutory review. The plaintiffs then proceeded to argue that the district court had jurisdiction of the case, that the district court had not erred in allowing the case to proceed directly under the Constitution, and that they had asserted valid substantive due process, state-created danger, and public trust claims.
On February 28 and March 1, a number of amicus briefs were filed in support of the plaintiffs. The government’s optional reply brief is due March 8. The Ninth Circuit initially indicated that oral argument would take place in Portland, Oregon during the week of June 3, but later also sought information on the parties’ availability during the weeks of July 8 and October 21. Juliana v. United States, No. 18-36082 (9th Cir.).
Briefs Filed in Support of Challenge to EPA Decision to Roll Back Greenhouse Gas Vehicle Standards
Parties challenging EPA’s decision to withdraw and revise its January 2017 Mid-Term Evaluation of greenhouse gas emission standards for 2022-2025 model year vehicles filed opening briefs in the D.C. Circuit Court of Appeals. The briefs argued that EPA’s action—which concluded the 2022-2025 standards were not “appropriate”—was a final agency action and that the issues were ripe for judicial review. They contended that EPA violated procedural and substantive requirements of the regulations that set the framework for the Mid-Term Evaluation. They also argued that EPA’s revision of the 2017 determination was arbitrary and capricious under the Administrative Procedure Act because the new determination disregarded and was contradicted by the record; because it lacked reasoned analysis; and because it failed to offer a reasoned explanation for EPA’s reversal. Three amicus briefs were also filed in support of the petitioners, by the Consumer Federation of America, by Lyft, Inc., and by local government associations and 16 individual cities and counties. You can read here about the local governments’ brief, which was filed by attorneys at the Sabin Center, Columbia Environmental Law Clinic, and Morningside Heights Legal Services. California v. EPA, Nos. 18-1114 et al. (D.C. Cir.).
Challenges Filed to 2019 Standards for Renewable Fuel Standard Program
Trade associations, refiners, environmental organizations, and other parties filed petitions in the D.C. Circuit Court of Appeals seeking review of EPA’s 2019 renewable fuel percentage standards for the Renewable Fuel Standard program. The challenged rule also set volume requirements for cellulosic biofuel, advanced biofuel, and total renewable fuel for 2019, and the applicable volume of biomass-based diesel for 2020. Petitioners included an ethanol trade association; a trade group representing the Biomass Power Association, the American Biogas Council, and the Energy Recovery Council; a petroleum products refiner; a trade group representing independent petroleum retailers and convenience stores; a biodiesel trade association; an “ad hoc working group of companies that own and operate biomass-based diesel and ethanol production plants and participate in the [RFS] program”; a transportation fuels refiner and owner of biofuel plants; and environmental and conservation groups. Growth Energy v. EPA, No. 19-1023 (D.C. Cir., filed Feb. 4, 2019); RFS Power Coalition v. EPA, No. 19-1027 (D.C. Cir., filed Feb. 7, 2019); Monroe Energy, LLC v. EPA, No. 19-1032 (D.C. Cir., filed Feb. 8, 2019); Small Retailers Coalition v. EPA, No. 19-1033 (D.C. Cir., filed Feb. 8, 2019); National Biodiesel Board v. EPA, No. 19-1035 (D.C. Cir., filed Feb. 8, 2019); Producers of Renewables United for Integrity Truth and Transparency v. EPA, No. 19-1036 (D.C. Cir., filed Feb. 9, 2019); American Fuel & Petrochemical Manufacturers v. EPA, No. 19-1037 (D.C. Cir., filed Feb. 11, 2019); Valero Energy Corp. v. EPA, No. 19-1038 (D.C. Cir., filed Feb. 11, 2019); National Wildlife Federation v. EPA, No. 19-1039 (D.C. Cir., filed Feb. 11, 2019).
Environmental Groups Challenged PSD Permit for New Natural Gas-Fired Power Plant in California
On February 8, 2019, four environmental groups filed a petition for review in the Ninth Circuit Court of Appeals challenging EPA’s issuance of a Clean Air Act Prevention of Significant Deterioration (PSD) permit for the Palmdale Energy Project, a natural gas-fired power plant. In October 2018, the EPA Environmental Appeals Board rejected the groups’ administrative appeal of the permit, including the argument that EPA had erred by rejecting battery storage (in lieu of duct burners) as a best available control technology (BACT). Center for Biological Diversity v. EPA, No. 19-70340 (9th Cir., filed Feb. 8, 2019).
Oil and Gas Companies Filed Briefs Urging Second Circuit to Affirm Dismissal of New York City’s Climate Change Case
U.S.-based energy companies filed their brief in the Second Circuit Court of Appeals in support of affirmance of the Southern District of New York’s dismissal of New York City’s lawsuit seeking to hold them liable under state tort law for climate change harms. The companies said the district court had properly determined that federal common law governed the City’s claims because they involved transboundary pollution. The companies also urged the Second Circuit to affirm the district court’s determination that no federal common law claim was pleaded. The companies argued that any claim based on domestic greenhouse gas emissions was displaced by the Clean Air Act and also that federal common law had never been applied “to hold manufacturers of lawful products liable merely because the users of those products create interstate pollution” or to supply “a remedy where the causal chain connecting the defendant’s conduct to the alleged harms extends back several decades, includes billions of intervening actors, and depends on complex phenomena that scientists continue to study.” The defendants also contended that the City did not state viable state law claims because causation requirements were not satisfied and because the doctrine of in pari delicto barred the City’s claims since the City and its resident “have long consumed Defendants’ products and have thus willingly contributed to” the emission that allegedly caused the City’s injuries. Finally, the companies argued that the claims were preempted by the foreign affairs doctrine and the Clean Air Act and were barred by Commerce Clause, Due Process, and Takings Clauses. City of New York v. Chevron Corp., No. 18-2188 (2d Cir. Feb. 7, 2019).
Bond Investors Filed Securities Action Against PG&E for Misrepresenting Efforts to Address Wildfire Risks
Investors in bonds issued by the utility Pacific Gas and Electric Company and its parent company (PG&E) filed a federal securities class action in the Northern District of California alleging that investigations of catastrophic wildfires in California in 2017 and 2018 revealed that PG&E had failed to take proper fire mitigation measures and that the company’s failures to do so directly contradicted representations made in offering documents for more than $4 billion worth of bonds. The complaint alleged that PG&E had been “implicated in directly causing the two most destructive wildfire events in California history in a span of only 13 months.” The complaint included allegations that PG&E had stated in offering documents that it had taken precautions to address climate change risks, including wildfire risks, but had failed to disclose “the heightened risk caused by PG&E’s own conduct and failure to comply with applicable regulations governing the maintenance of electrical lines, and the hundreds of fires that were already being ignited annually by the Company’s equipment.” York County v. Rambo, No. 3:19-cv-00994 (N.D. Cal., filed Feb. 22, 2019).
Environmental Groups Filed Lawsuit to Compel Final Listing Determination on Gulf of Mexico Whale
Natural Resources Defense Council (NRDC) and Healthy Gulf filed an Endangered Species Act citizen suit seeking an order to compel the National Marine Fisheries Service (NMFS) to make a final decision on whether to list the Gulf of Mexico whale as endangered. The plaintiffs alleged that NMFS’s 12-month finding and proposal to list the species as endangered—which were published in December 2016 in response to NRDC’s listing petition—identified 27 threats to the whale’s survival. The plaintiffs asserted that NMFS was required to take further action within a year of the publication of the proposed listing decision. The plaintiffs alleged that the whale faced numerous anthropogenic threats and that its small population size and limited range “increase[d] its vulnerability to extinction from … environmental processes like climate change.” Natural Resources Defense Council v. Ross, No. 1:19-cv-00431 (D.D.C., filed Feb. 21, 2019).
Center for Biological Diversity Filed FOIA Lawsuit Seeking Records About NOAA’s Denial of Petition to List Pacific Bluefin Tuna as Endangered or Threatened
Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the Central District of California seeking to compel the National Oceanic and Atmospheric Administration (NOAA) to perform an adequate search for records concerning NOAA’s decision in 2017 to deny CBD’s petition to list the Pacific bluefin tuna as threatened or endangered. NOAA had issued a positive 90-day finding and announced the initiation of a status review of the tuna in October 2016. CBD also asked the court to compel the release of all records and portions of records that CBD alleged NOAA had improperly withheld. CBD alleged that the Pacific bluefin tuna was primarily threatened by commercial fishing but that it also was threatened by water and plastic pollution, oil and gas development, renewable energy projects, large-scale aquaculture, forage fish depletion, and climate change. Center for Biological Diversity v. National Oceanic & Atmospheric Administration, No. 2:19-cv-01082 (C.D. Cal., filed Feb. 13, 2019).
Environmental Groups Filed Lawsuit Seeking to Compel TMDL for Western Lake Erie
Two environmental groups filed a Clean Water Act citizen suit in the federal district court for the Northern District of Ohio asserting that EPA had “expressly endorsed” the Ohio Environmental Protection Agency’s (Ohio EPA’s) attempt to evade its legal obligation to address nutrient pollution causing harmful algal blooms in western Lake Erie. The groups alleged that EPA had approved a report and impaired water list submitted by Ohio EPA that identified western Lake Erie as a “low” priority for development of a Total Daily Maximum Load (TMDL) after having said the waterbody was “one of the highest, if not the highest, priority for Ohio to address.” The groups said EPA’s approval of the “low” designation would allow Ohio EPA “to continue dragging its feet and failing to protect western Lake Erie waters for many years more with limited legal and public accountability.” The groups asked the court to direct EPA to require Ohio EPA to adopt a legally sufficient and adequate TMDL for western Lake Erie. Citing the most recent National Climate Assessment, the groups asserted that a TMDL was “especially urgent” because algal blooms and nutrient pollution problems “are likely to be exacerbated by climate change.” Environmental Law & Policy Center v. EPA, No. 3:19-cv-00295 (N.D. Ohio Feb. 7, 2019).
Lawsuit Filed Challenging New NEPA Review for Underground Coal Mine’s Expansion
Environmental groups filed a new lawsuit in federal district court in Montana challenging federal defendants’ re-approval of an expansion of the Bull Mountains Mine, an underground coal mine in Montana. The court previously vacated an environmental assessment prepared for the expansion, finding that the Office of Surface Mining had failed to take a hard look at indirect and cumulative effects of coal transportation and combustion and at foreseeable greenhouse gas emissions and the economic costs associated with emissions. In the new complaint, the plaintiffs alleged that the defendants had expanded and increased their analysis of the mine expansion’s economic benefits “while once more refusing to acknowledge and quantify the economic costs of the expansion,” ignoring “expert evidence that the harm from the mine expansion, from greenhouse gas pollution and toxic and harmful air pollution, would cost the public billions of dollars and be 5 to 15 times greater than the economic benefits of the mine.” The plaintiffs asserted that the defendants violated NEPA by failing to prepare an environmental impact statement and by once again failing to take a hard look at impacts and to consider reasonable alternatives, including replacing the mine with renewable resources. 350 Montana v. Bernhardt, No. 9:19-cv-00012 (D. Mont., filed Jan. 16, 2019).
Malibu Residents Filed Suit to Recover Damages from Woolsey Fire
In a lawsuit seeking damages and other relief in connection with the Woolsey Fire, Malibu residents mentioned climate risk as one known factor of which the defendants—the utility Southern California Edison Company, its parent company, and the Boeing Company (Boeing)—were aware and to which the defendants failed to respond in their maintenance and operation of their equipment and property. The Woolsey Fire was ignited in November 2018 in the area of the Santa Susana Field Laboratory site owned by Boeing, which the plaintiffs alleged was a former rocket engine test and nuclear research facility and “currently the focus of a comprehensive environmental investigation and cleanup program.” The plaintiffs asserted that the utility defendants had a non-delegable duty to safely maintain their electrical equipment, and that Boeing had a non-delegable duty to keep its property reasonably safe, and that all defendants were aware of the high risk of wildfire and knew that their equipment or property was not properly maintained or safe. The complaint asserted claims of negligence, inverse condemnation, public nuisance, private nuisance, trespass, premises liability, and violations of the California Public Utilities Code and Health and Safety Code. Von Oeyen v. Southern California Edison Co., No. 19STCV04409 (Cal. Super. Ct., filed Feb. 8, 2019).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
Australian Court Upheld Government Denial of Coal Mine Construction Permit, Cited Consideration of Climate Change Impacts
On February 8, 2019, the Land & Environment Court of New South Wales upheld the government’s denial of an application by Gloucester Resources Limited to construct an open cut coal mine in New South Wales (NSW). The proposed Rocky Hill Coal Project aimed to produce 21 million tonnes of coal over a period of 16 years. The court found that the project was not in the public interest after weighing costs and benefits of the project, including the climate change impacts of the mine’s direct and indirect greenhouse gas emissions. Under Section 4.15(1) of the Environmental Planning & Assessment Act (the EPA), the government is to consider the public interest as part of its review of a development application.
As part of its consideration of climate change impacts, the court held that both upstream and downstream emissions of the project should be considered by the Planning Department because the EPA and its regulations require consideration of “the principles of ecologically sustainable development” (ESD), which can encompass climate change impacts. The court also pointed to the requirements under the EPA to consider “any environmental planning instrument” and cited language in the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) of 2009 and the 2010 Gloucester Local Environmental Plan as including consideration of ESD and the cumulative greenhouse gas emissions associated with a project. The court recognized the link between these emissions and climate change, remaining unpersuaded by petitioner’s arguments related to market substitution, carbon leakage, the theoretical possibility that other projects would offset these emissions, and the inefficiency of this denial as a mechanism for global abatement of emissions.
After weighing the costs and benefits of the project, the court upheld the government’s denial of the application, finding “that the negative impacts of the Project, including the planning impacts on the existing, approved and likely preferred land uses, the visual impacts, the amenity impacts of noise and dust that cause social impacts, other social impacts, and climate change impacts, outweigh the economic and other public benefits of the Project.” While not foreclosing all mining projects, the court ruled that this project was not a “sustainable use” because of the combination of climate change impacts of the project and the high environmental and social costs of locating a coal mine in this particular location. Gloucester Resources Ltd. v Minister for Planning, [2019] NSWLEC 7 (NSW Land & Env’t Ct. Feb. 8, 2019).
