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 # 126
FEATURED CASE
Fourth Circuit Declined to Stay Remand Order in Baltimore’s Climate Case Against Fossil Fuel Companies; Companies Sought Stay from Supreme Court
On October 1, 2019, the Fourth Circuit Court of Appeals denied fossil fuel companies’ motion for a stay pending their appeal of the district court order remanding Baltimore’s climate change lawsuit against the companies to state court. On the same day, the companies filed an application for a stay in the U.S. Supreme Court. On October 2, the district court granted the companies’ motion to temporarily extend its stay of the remand order until the Supreme Court resolves the application. (The district court previously extended the stay of the remand order pending the Fourth Circuit’s resolution of the companies’ stay motion.) The district court said Baltimore could seek to rescind the temporary extension “as improvidently granted” by filing a motion by October 7. On September 30, the Fourth Circuit tentatively calendared oral argument on the companies’ appeal for the December 10–12 argument session. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. Oct. 1, 2019).
DECISIONS AND SETTLEMENTS
Rhode Island Federal Court Denied Motion to Stay Remand Order in Rhode Island’s Climate Change Case
On September 11, 2019, the federal district court for the District of Rhode Island denied oil and gas companies’ motion for a stay of the court’s July 22 decision remanding the State of Rhode Island’s lawsuit seeking to hold the companies liable for climate change impacts. Pursuant to a consent order, the remand order will not be entered until October 10, 2019. On September 13, the companies filed an expedited motion for stay pending appeal in the First Circuit. Briefing on the stay motion was completed on September 26. Rhode Island v. Chevron Corp., No. 1:18-cv-00395 (D.R.I. Sept. 11, 2019).
Colorado Federal Court Remanded Local Governments’ Climate Case to State Court
On September 5, 2019, a federal district court in Colorado ruled that oil and gas companies had not met their burden of showing that federal jurisdiction existed for climate change-related claims asserted by Boulder County, San Miguel County, and the City of Boulder. Citing the well-pleaded complaint rule, the court concluded that removal was not appropriate based on federal question jurisdiction because the plaintiffs’ claims did not on their face raise the federal issues of energy, the environment, and national security. The court said the defendants’ argument that the plaintiffs’ state law claims were governed by federal common law appeared to be a matter of ordinary preemption, which would not provide a basis for federal jurisdiction. The district court also found that the defendants did not establish that the plaintiffs’ claims necessarily depended on the resolution of a substantial question of federal law. In addition, the court rejected the contention that the Clean Air Act or foreign affairs doctrine completely preempted the plaintiffs’ claims and also indicated that federal common law would not provide a basis for complete preemption. The court also was not persuaded that federal jurisdiction existed based on federal enclave jurisdiction, federal officer jurisdiction, jurisdiction under the Outer Continental Shelf Lands Act, or jurisdiction based on the claims’ relationship to bankruptcy proceedings.
On September 6, the court granted the defendants’ emergency motion for a temporary stay pending the court’s ruling on the defendants’ motion for a stay pending appeal. After the defendants filed an appeal of the remand order in the Tenth Circuit, the plaintiffs filed a motion to dismiss all aspects of the appeal except for the defendants’ appeal of the district court’s determination that there was no federal officer removal jurisdiction. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 1:18-cv-01672 (D. Colo. Sept. 5, 2019), No. 19-1330 (10th Cir., motion for partial dismissal filed Sept. 20, 2019).
D.C. Circuit Dismissed Clean Power Plan Challenges
The D.C. Circuit Court of Appeals granted motions seeking to dismiss as moot the proceedings challenging the Obama administration’s Clean Power Plan, which established emission guidelines for greenhouse gases from existing power plants. The court dismissed the proceedings 11 days after the effective date of the U.S. Environmental Protection Agency (EPA) rule repealing the Clean Power Plan and finalizing the final Affordable Clean Energy rule in its place. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. Sept. 17, 2019).
D.C. Circuit Ruled that EPA Must Consider Endangered Species in Setting Renewable Fuel Standards
The D.C. Circuit Court of Appeals sent the 2018 Renewable Fuel Standards rule back to EPA after finding that EPA failed to comply with requirements of the Endangered Species Act. The court said EPA should have consulted with the U.S. Fish and Wildlife Service or National Marine Fisheries Service and made a finding as to whether the Renewable Fuel Standard would affect listed species. The court upheld other aspects of the 2018 standards, including the applicable volumes, restrictions on the use of Renewable Identification Numbers for fuel that is exported, and EPA’s accounting for small refinery exemptions. EPA remanded the standards but did not vacate the rule. American Fuel & Petrochemical Manufacturers v. EPA, No. 17-1258 (D.C. Cir. Sept. 6, 2019).
District Court Rejected Climate Change Arguments in Challenge to Listing Determination for Rio Grande Cutthroat Trout
The federal district court for the District of Colorado rejected arguments that the U.S. Fish and Wildlife Service (FWS) erred in its analyses of climate change’s impact on the Rio Grande cutthroat trout when it determined in 2014 that the species no longer warranted listing under the Endangered Species Act. The FWS concluded in 2008 that the trout should be listed but reversed course in 2014 and concluded that listing was no longer warranted. The court was not persuaded by the plaintiffs’ contention that the FWS had concluded that conservation projects would outpace climate change effects on the trout or by the argument that the FWS erred by abandoning a finding in its 2008 determination that climate change constituted a “severe” threat to the trout that exacerbates other threats. The court did, however, find that the FWS failed to explain different methodologies it used in 2008 and 2014 to calculate the number of healthy populations of the trout. Because the court found that the FWS had acted arbitrarily and capriciously in this respect, the court vacated the 2014 determination in part and remanded for the FWS to explain its rationale for determining the number of healthy populations. Center for Biological Diversity v. Jewell, No. 16-CV-1932 (D. Colo. Sept. 26, 2019).
South Dakota Federal Court Granted Preliminary Injunction Against Enforcement of Laws Targeting Pipeline Protesters
The federal district court for the District of South Dakota temporarily enjoined enforcement of provisions of a riot boosting statute enacted in South Dakota in 2019 in response to anticipated protests of the Keystone XL pipeline. The court also temporarily enjoined two felony riot statutes because they went “far beyond” the State’s “appropriate interest” in criminalizing participation in a riot with acts of force or violence. The court said the laws’ provision for criminal or tort liability for advising, encouraging, or soliciting persons participating in a riot to acts of force or violence was overbroad and vague. In a separate order, the court dismissed a county sheriff from the action because the court found the plaintiffs lacked standing to bring claims against him. Dakota Rural Action v. Noem, No. 5:19-cv-05026 (D.S.D. preliminary injunction order and standing order Sept. 18, 2019).
Federal Court Barred Timber Management in Arizona National Forests Pending New Jeopardy Analysis for Mexican Spotted Owl but Upheld Climate Change Analysis
The federal district court for the District of Arizona enjoined the U.S. Forest Service (USFS) from proceeding with timber management actions in 11 national forests in Arizona and directed the FWS and the USFS to reinitiate a formal Section 7(a)(2) consultation pursuant to the Endangered Species Act to reassess the jeopardy analysis and the effect of Forest Plans on recovery of the threatened Mexican spotted owl. The court found that a 2012 no-jeopardy determination was unsupported, arbitrary, and capricious because it did not account for the owl’s recovery. The court found, however, that the plaintiff failed to show that the defendants had not considered climate change effects on the Mexican spotted owl and therefore held that the FWS’s analysis of climate change was neither arbitrary nor capricious. WildEarth Guardians v. U.S. Fish & Wildlife Service, No. 4:13-cv-00151 (D. Ariz. Sept. 12, 2019).
Minnesota Supreme Court Declined to Review Claims Regarding Environmental Review for Oil Pipeline
The Minnesota Supreme Court denied petitions for further review of an appellate court decision finding all but one aspect of the environmental review for the Enbridge Line 3 oil pipeline project to be adequate. (The appellate court said the Minnesota Public Utilities Commission gave inadequate attention to the potential impact of an oil spill in the Lake Superior watershed.) The StarTribune reported that the non-profit group Honor the Earth and the Mille Lacs Band of Ojibwe filed one petition, and Friends of the Headwaters filed another petition, each arguing that there were other shortcomings in the Public Utilities Commission’s review. In re Enbridge Energy, LP, No. __ (Minn. Sept. 17, 2019).
Washington High Court Declined to Review Decision Giving Pipeline Protester Right to Present Necessity Defense
The Washington Supreme Court denied a petition to review an intermediate appellate court’s determination that a pipeline protester should be allowed to present a climate change necessity defense. The Climate Defense Project, which represents the defendant, said the Supreme Court decision made Washington the first state to affirmatively recognize the right of a climate activist to offer the necessity defense at trial. State v. Ward, No. 97182-0 (Wash. Sept. 4, 2019).
California Appellate Court Again Directed Dismissal of Lawsuits Raising Concerns About Climate Change Impacts on Oroville Dam Operations
The California Court of Appeal again concluded that the Federal Power Act (FPA) preempted application of state environmental laws to a relicensing of the Oroville Dam. The appellate court therefore ruled that state courts were without jurisdiction to consider claims that a California Environmental Quality Act review should have considered the impacts of climate change on continued operation of the dam. The court previously reached the same conclusion in December 2018, but the California Supreme Court directed it to reconsider the case in light of the Supreme Court’s 2017 decision in Friends of the Eel River v. North Coast Railroad Authority, which concerned the preemptive effect of the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA). In its 2019 opinion, the Court of Appeal wrote that ICCTA was “materially distinguishable” from the FPA because unlike ICCTA, the FPA is not “deregulatory” in nature. The Court of Appeal also said the plaintiffs incorrectly construed the project subject to environmental review as the “dam and facilities as built” but that the “correct view” was that the project subject to review was a project “to further mitigate the loss of habitat caused by construction of the dam in 1967.” The court said this “correct view of the project” involved only questions of federal law and concluded that the plaintiffs therefore failed to tender an issue over which the court had jurisdiction. County of Butte v. Department of Water Resources, No. C071785 (Cal. Ct. App. Sept. 5, 2019).
Maryland Appellate Court Said Residents Lacked Standing to Challenge Update to Master Plan
The Maryland Court of Special Appeals ruled that a group of residents did not have standing to bring claims challenging a District Council’s approval of an update to a master plan for a portion of Montgomery County. The residents alleged, among other things, that approval of the plan was illegal and ultra vires because the plan’s potential impact on greenhouse gas emissions had not been assessed, as required by County law. The court concluded that “property owner standing” was not a basis to challenge the plan, which was a “comprehensive zoning” action, and that the residents failed to plead facts supporting taxpayer standing. Bennett v. Montgomery County, No. 302 (Md. Ct. Spec. App. Sept. 3, 2019).
New York Court Dismissed Challenge to Local Zoning Law that Restricted Development of Solar Facilities
A New York trial court dismissed a lawsuit challenging a town zoning ordinance that restricted utility-scale solar collection systems to commercial and industrial zones. As a threshold matter, the court found that property owners who were concerned about fossil fuel consumption and sought to imminently use their land for renewable energy generation had standing under the New York State Environmental Quality Review Act (SEQRA), even though the property owners also asserted an economic concern regarding the long-term economic viability of their properties that would not on its own constitute a cognizable injury under SEQRA. The court also ruled that the property owners had standing to challenge the zoning ordinance and that an unincorporated citizens association formed to promote a proposed solar project had organizational standing even if the association’s purpose benefited its members economically. On the merits, the court found that the respondents had taken the hard look required by SEQRA, rejecting arguments that they failed to consider (1) the New York State Energy Plan and its renewable energy target; (2) the pending solar project; (3) the impact on fossil fuel emissions; and (4) global climate change. The court also deferred to the town’s authority in land use matters and found that the zoning ordinance was a valid exercise of local police power. The court noted that New York State had recognized by statute that climate change was adversely affecting New York and that development of solar and other renewable energy was critical to the State’s efforts to combat climate change. The court concluded, however, that local governments could consider the negative impacts of solar energy in their land use decision-making as well as other interests such as protecting agricultural land. Friends of Flint Mine Solar v. Town Board of Coxsackie, No. 19-0216 (N.Y. Sup. Ct. Sept. 13, 2019).
D.C. Court Dismissed Counterclaims in Climate Scientist’s Defamation Lawsuit
The D.C. Superior Court dismissed counterclaims brought by an individual writer against the climate scientist Michael Mann in Mann’s defamation lawsuit against National Review, the Competitive Enterprise Institute, and two individuals. The court said the writer had already availed himself of the remedy offered by D.C.’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute—i.e., a special motion to dismiss with lower burden of proof, a stay of discovery when the motion is pending, a special motion to quash discovery requests, and the recovery of attorneys fees. The court said the writer, having lost the special motion to dismiss, could not “seek the same remedy in the guise of a counterclaim”; the court concluded that the “Anti-SLAPP statute does not create an implied right to affirmatively assert a claim against the plaintiff.” The court also found that Mann’s lawsuit did not constitute state action and therefore dismissed the writer’s constitutional tort claim. In addition, the court found that the writer failed to allege elements of an abuse of process or a malicious prosecution claim. The court also declined to “create a new tort named abusive litigation.” Mann v. National Review, Inc., No. 2012 CA 008263 B (D.C. Super. Ct. Aug. 29, 2019).
Massachusetts Court Upheld State Approval of Coastal Landfill’s Expansion
On July 26, 2019, a Massachusetts state court upheld a Massachusetts Department of Environmental Protection (MassDEP) decision authorizing expansion of a landfill in the Town of Saugus. Conservation Law Foundation (CLF) and the Town of Saugus had appealed the MassDEP’s decision. CLF’s allegations included that the landfill’s coastal location “makes it extremely vulnerable to climate change impacts, including sea level rise and damaging storm surge, creating a significant risk of erosion and of pollution from the Landfill washing into the surrounding rivers and coastal wetlands.” News coverage of the court’s decision affirming MassDEP’s decision did not discuss the climate change-related allegations. The Board of Health filed a notice of appeal on August 26, 2019. Conservation Law Foundation v. Massachusetts Department of Environmental Protection, No. 1884CV01431 (Mass. Super. Ct. July 26, 2019); Town of Saugus Board of Health v. Massachusetts Department of Environmental Protection, No. 1884CV01419 (Mass. Super. Ct. July 26, 2019).
Board of Land Appeals Set Aside BLM Vegetation Management Plan in Southern Utah but Rejected Challengers’ Climate Change Arguments
The Interior Board of Land Appeals (IBLA) rejected claims that the U.S. Bureau of Land Management (BLM) failed to take a hard look at greenhouse gas emissions and climate change impacts of a vegetation management project on 54,018 acres northeast of Kanab, Utah. But IBLA set aside approval of the project because it found both that BLM failed to consider the project’s cumulative effects on migratory birds and that BLM approved the use of non-native seed in ways that were inconsistent with the applicable land use plan. Regarding greenhouse gas emissions and climate change, BLM concluded that greenhouse gas emission factors were not sufficiently refined for quantifying emissions at the project level without site-specific measurements and data, which meant BLM could neither quantify nor assess specific climate change impacts due to project emissions that were below EPA’s greenhouse gas reporting threshold of 25,000 tons per year. IBLA said it was satisfied with BLM’s explanation for why a detailed analysis or quantification of emissions and climate change impacts would not be feasible or useful. IBLA also said the quantification of emissions for a project in Oregon did not necessarily mean BLM could quantify similar emissions from this project. In re Southern Utah Wilderness Alliance, No. IBLA 2019 94 (IBLA Sept. 16, 2019).
NEW CASES, MOTIONS, AND NOTICES
Parties Challenging Clean Power Plan Repeal Opposed Motions to Expedite; Motion Filed for Abeyance
Petitioners challenging EPA’s repeal and replacement of the Clean Power Plan opposed EPA’s and aligned intervenors’ motions to expedite the case. The petitioners argued that the motions did not satisfy the standard described in the D.C. Circuit’s Handbook of Practice and Internal Procedures for expediting cases, which states that the court “grants expedited consideration very rarely” and that the reasons “must be strongly compelling.” The petitioners also argued that granting the motion would prejudice the petitioners’ interests. Later in September, Environmental and Public Health Petitioners and State and Municipal Petitioners filed their own motion requesting that the court hold the proceedings in abeyance pending EPA final action on petitions for reconsideration. American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir.).
States Filed Lawsuit Challenging Trump Administration’s Changes to the Endangered Species Act Regulations
Seventeen states, the District of Columbia, and New York City filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the regulations implementing the Endangered Species Act (ESA). The plaintiffs asserted that the amendments violated the ESA’s plain language and purpose, as well as “its legislative history, numerous binding judicial precedents interpreting the ESA, and its precautionary approach to protecting imperiled species and critical habitat,” including by limiting designation of unoccupied critical habitat, “particularly where climate change poses a threat to species habitat.” The plaintiffs also contended that the defendants failed to provide reasoned analysis for the changes and overlooked important issues, including the need to address threats from climate change. The plaintiffs asserted claims under the ESA, the Administrative Procedure Act, and the National Environmental Policy Act. The plaintiffs indicated that their case was related to the previously filed Center for Biological Diversity v. Bernhardt. California v. Bernhardt, No. 3:19-cv-06013 (N.D. Cal., filed Sept. 25, 2019).
Citing Resiliency and Sea Level Rise Concerns, Environmental Groups and California Challenged Negative Jurisdictional Determination for Redwood City Salt Ponds
Four regional environmental organizations and the State of California filed lawsuits in federal district court for the Northern District of California challenging the EPA’s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act. The organizations’ complaint alleged that the Salt Ponds consisted of approximately 1,365 acres that are “one of the last remaining undeveloped areas along the San Francisco Bay’s shorelines” and that the protection of such areas “will help the surrounding area be resilient to climate impacts.” The complaint asserted that EPA’s negative jurisdiction concluding that the Salt Ponds are not waters of the United States ignored numerous factors and was not consistent with the Clean Water Act and that it would lead to impacts on water quality and exacerbate the consequences of sea level rise. California alleged that the negative jurisdictional determination would make it more likely that the Salt Ponds would be developed, impairing the State’s ability to control and mitigate sea level rise impacts in San Francisco Bay. The State asserted that the determination violated the Administrative Procedure Act. San Francisco Baykeeper v. EPA, No. 3:19-cv-05941 (N.D. Cal., filed Sept. 24, 2019); California v. Wheeler, No. 3:19-cv-05943 (N.D. Cal., filed Sept. 24, 2019).
Lawsuit Said Determination that Island-Dwelling Lizard Was Not Endangered or Threatened Was Unlawful
The Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the Southern District of Florida claiming that the U.S. Fish and Wildlife Service’s decision not to list the Florida Keys mole skink under the ESA was unlawful. The complaint alleged that the skink is “a severely imperiled, island-dwelling lizard that is steadily losing what remains of its limited habitat to urban development and rising seas.” CBD said the FWS failed to provide a rational explanation for finding that the skink was not endangered or threatened even though the agency’s projections indicated that sea level rise would inundate half of the skink’s habitat by 2060 and nearly all of it by 2100. The complaint also alleged that the FWS “ignored or dismissed myriad cumulative impacts of climate change,” including increased storm surge and changes in precipitation and temperature. The complaint asserted that FWS failed to use best available scientific data in violation of the ESA and unlawfully limited the “foreseeable future” to 2060 when the FWS had projections through 2100. In addition, the complaint asserted that the FWS failed to consider the ESA’s five listing factors, failed to lawfully analyze whether the skink was threatened or endangered “in a significant portion of its range,” failed to apply the definitions of “endangered” and “threatened,” and acted arbitrarily and capriciously. On September 27, the parties agreed to the dismissal of the lawsuit without prejudice in contemplation of the filing of an amended complaint in a related Freedom of Information Act case already pending before the court. Center for Biological Diversity v. Bernhardt, No. 2:19-cv-14353 (S.D. Fla., filed Sept. 23, 2019).
States and Cities Challenged Rule Preempting State Regulation of Vehicle Carbon Dioxide Emissions
On September 19, EPA Administrator Andrew Wheeler and National Highway Traffic Safety Administration (NHTSA) Acting Administrator James Owenssigned a final rule in which EPA withdrew the waiver that allowed California to promulgate greenhouse gas standards for vehicles and establish a zero-emission vehicle (ZEV) mandate. The rule also finalized text in NHTSA regulations explicitly preempting state regulation of carbon dioxide emissions from vehicles. EPA and NHTSA described these actions as “legal matters that are independent of the technical details” of proposed federal greenhouse gas and Corporate Average Fuel Economy standards for light-duty vehicles that EPA and NHTSA have not yet finalized. EPA and NHTSA said the final waiver and preemption actions were necessary to ensure “the existence of one Federal program for light vehicles.” On September 20, California, 23 other states, the District of Columbia, New York City, and Los Angeles filed a lawsuit in federal district court in the District of Columbia against the Secretary of Transportation, Owens, the U.S. Department of Transportation, and NHTSA. The states asserted that the preemption regulation exceeded NHTSA’s authority, that the regulation contravened the Energy Policy and Conservation Act of 1975 and the Clean Air Act, and that NHTSA failed to consider the regulation’s environmental impacts as required by the National Environmental Policy Act. On September 27, nine nonprofit organizations filed a similar lawsuit challenging the NHTSA regulation. California v. Chao, No. 1:19-cv-02826 (D.D.C., filed Sept. 20, 2019); Environmental Defense Fund v. Chao, No. 1:19-cv-02907 (D.D.C., filed Sept. 27, 2019).
Conservation Groups and Climate Scientist Challenged Logging and Biomass Plant in Northern California
Earth Island Institute, Sequoia Forestkeeper, Greenpeace, and climate scientist James Hansenfiled a lawsuit in the federal district court for the Northern District of California challenging federal and state authorizations for a logging project and biomass power plant on public forestland burned during the Rim Fire in 2013. The complaint alleged that the U.S. Department of Housing and Urban Development (HUD) and the California Department of Housing and Community Development (HCD)improperly used disaster relief funds for logging activities and that HUD, HCD, and U.S. Forest Service violated the National Environmental Policy Act. The plaintiffs contended that environmental impact statements (EISs) from 2014 and 2016 should have been supplemented with new information about the forest’s natural regeneration and that the biomass plant should have been considered in the same EISs as the logging project. The complaint’s allegations included that the EISs failed to analyze the environmental impacts of logging for biomass energy production, including increased greenhouse gas emissions, and that the climate and greenhouse gas effects of logging would be different than what was studied in the EISs due to differences in logging “post-fire large, dead trees” for lumber and removing and burning “trees of all sizes, both live and dead, and including the young, naturally-regenerating forest, for biomass energy production.” The plaintiffs later filed a motion for a temporary restraining order or preliminary injunction. The federal defendants filed to dismiss the case for improper venue or to transfer the case to the Eastern District of California. Earth Island Institute v. Nash, No. 3:19-cv-05792 (N.D. Cal., filed Sept. 16, 2019).
FOIA Lawsuit Filed Seeking Documents Regarding Dismissal of NOAA Acting Administrator
A non-profit organization filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia seeking to compel the National Oceanic and Atmospheric Administration (NOAA) to respond to a request for documents related to the removal of retired U.S. Navy Rear Admiral Tim Gallaudet as acting administrator of NOAA. The complaint alleged that Gallaudet “had earned plaudits for advancing the agency’s priorities in ocean and atmospheric sciences without succumbing to political interference with climate research.” Democracy Forward Foundation v. National Oceanic & Atmospheric Administration, No. 1:19-cv-02751 (D.D.C., filed Sept. 16, 2019).
Conservation Groups Challenged Environmental Review for 130 Oil and Gas Lease Sales in Utah
Three conservation groups challenged 130 oil and gas lease sales covering 175,357 acres of public lands in Utah for failing to consider indirect and cumulative greenhouse gas emissions and climate change impacts. The complaint asserted that the National Environmental Policy Act (NEPA) reviews for the lease sales, which were conducted between 2014 and 2018, considered no indirect greenhouse gas emissions other than carbon dioxide emissions from combustion and failed to analyze downstream emissions for non-carbon dioxide emissions and emissions that occurred after drilling but prior to combustion. The complaint also alleged that the NEPA reviews did not quantify cumulative emissions of other past, present, or reasonably foreseeable oil and gas lease sales but instead provided “only broad and generic statements regarding the nature of the climate crisis.” Living Rivers v. Hoffman, No. 4:19-cv-00074 (D. Utah, filed Sept. 12, 2019).
Lawsuit Filed Challenging 2015 Determination that Listing Sonoran Desert Tortoise as Endangered or Threatened Was Not Warranted
WildEarth Guardians and Western Watersheds Project challenged the U.S. Fish and Wildlife’s October 2015 decision that listing of the Sonoran desert tortoise under the Endangered Species Act was “not warranted.” The complaint included a number of climate change-related allegations. It alleged that the FWS failed to consider and adequately apply the five threat factors for determining whether a species is endangered and threatened, including by failing “to consider and analyze how climate change is already impacting and will continue to directly, indirectly, and cumulatively impact the Sonoran desert tortoise and its habitat now and into the foreseeable future.” In addition, the complaint alleged that the FWS “arbitrarily dismissed the best available science on climate change impacts,” which predicted increased severity of droughts in the tortoises’ range. The plaintiffs also contended that in the analysis of whether the tortoise was in danger of extinction in a “significant portion of its range,” the FWS did not consider significance variables and factors such as climate change that, unlike the threat of urban development, might not have geographic concentrations. WildEarth Guardians v. Bernhardt, No. 4:19-cv-00441 (D. Ariz. Sept. 5, 2019).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
British Court Found UK Fracking Policy Unlawfully Failed to Account for Climate Impacts of Shale Gas
Claimant, on behalf of the advocacy group Talk Fracking, successfully challenged a section of the UK’s National Planning Policy Framework (NPPF) that promoted fracking. Claimant alleged that the section, known as paragraph 209(a), was developed without accounting for recent evidence of shale gas development’s contribution to climate change. The Administrative Court of the Queen’s Bench Division of the High Court of Justice quashed paragraph 209(a).
Paragraph 209(a) instructed minerals planning authorities to recognize the benefits of developing oil and gas, including unconventional hydrocarbons, and to implement policies to facilitate their exploration and extraction. The court concluded that the Secretary of State for Housing and Communities and Local Government acted unlawfully by failing to undertake a proper public consultation or to account for recent evidence of the climate impacts of shale gas development. The claimant also argued that paragraph 209(a) triggered the need to conduct a Strategic Environmental Assessment and ran afoul of the UK’s commitment to reduce greenhouse gas emissions under the Climate Change Act of 2008, claims that the court rejected. On May 23, 2019, the Secretary issued a statement to remove paragraph 209(a), and the UK Government updated the NPPF on June 19. Stephenson v. Secretary of State, 2019 EWHC 519 (Admin) (High Court of Justice, Queen’s Bench Division).
Children Allege Delayed Climate Action Violates Rights Under UN Convention on the Rights of the Child
Sixteen children filed a petition alleging that Argentina, Brazil, France, Germany, and Turkey violated their rights under the United Nations Convention on the Rights of the Child (the Convention) by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. The children ask the United Nations Committee on the Rights of the Child (the Committee) to declare that respondents violated their rights by perpetuating climate change, and to recommend actions for respondents to address climate change mitigation and adaptation.
Petitioners claim that climate change has led to violations of their rights under the Convention, including the rights to life, health, and the prioritization of the child’s best interest, as well as the cultural rights of petitioners from indigenous communities. For example, Deborah Adegbile of Nigeria asserts that she has been repeatedly hospitalized for asthma attacks triggered by rising temperatures and exacerbated smog. Ellen-Anne of Sweden alleges that climate change imperils her indigenous community’s traditional reliance on reindeer husbandry and herding. David Ackley III, Litokne Kabua, and Ranton Anjain of the Marshall Islands similarly claim that sea-level rise poses an existential threat to their culture.
Each respondent has ratified the Convention. All five have signed the Paris Agreement but, according to petitioners, none have made or kept commitments that align with keeping temperature rise under 2 degrees Celsius. The petition asserts that respondents have four related obligations under the Convention: (i) to prevent foreseeable domestic and extraterritorial human rights violations resulting from climate change; (ii) to cooperate internationally in the face of the global climate emergency; (iii) to apply the precautionary principle to prevent deadly consequences even in the face of uncertainty; and (iv) to ensure intergenerational justice for children and posterity. Petitioners allege that respondents have failed to prevent foreseeable human rights harms caused by climate change by making insufficient reductions to greenhouse gas emissions. Petitioners further claim that as members of the G20, respondents have failed to use available legal, diplomatic, and economic tools to protect children from the greenhouse gas pollution of major emitters including China, the United Stations, the European Union and India.
The children request that the Committee make findings including that climate change is a children’s rights crisis, and that each respondent has caused and is perpetuating climate change by knowingly acting in disregard of available scientific evidence. They also ask the Committee to recommend that the respondents review and, where necessary, amend their laws and policies to ensure that mitigation and adaptation efforts are accelerated; initiate cooperative international action to establish binding and enforceable climate measures; and ensure children’s right to be heard in all efforts to mitigate or adapt to the climate crisis. The Committee must determine if the petition is actionable before making findings or recommendations. Sacchi et al. v. Argentina et al. (UN Committee on the Rights of the Child).
Irish Court Rejected Claims that National Mitigation Plan Violated Climate Statute, Constitution, and Human Rights Obligations
An advocacy group, Friends of the Irish Environment (FIE), filed suit in the High Court, arguing that the Irish government’s approval of the National Mitigation Plan in 2017 violated Ireland’s Climate Action and Low Carbon Development Act 2015 (the Act), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life. FIE alleged that the National Mitigation Plan (the Plan), which seeks to transition to a low-carbon economy by 2050, is inconsistent with the Act and Ireland’s human rights commitments because it is not designed to achieve substantial short-term emissions reductions. The case was argued before the High Court on January 22, 2019. FIE asked the High Court to quash the government’s decision to approve the Plan and, if appropriate, order that a new plan be written.
On September 19, 2019, the Court ruled for the government. The Court rejected FEI’s claim that the Plan was invalid for failing to achieve substantial short-term emissions reductions, concluding that the Act does not require particular intermediate targets. The Court recognized that “there is now limited room, or . . . carbon budget, for greenhouse gas emissions” given the “safe temperature rise target” of 1.5 degrees Celsius. The Court reasoned, however, that the government appropriately exercised policy making discretion afforded by the Act, explaining that the current Plan is only an initial step in achieving targets for transitioning to a low-carbon, climate resilient, and environmentally sustainable economy by 2050, and will be subject to review and revision. The Court concluded that FEI had standing to bring rights-based claims, but rejected the argument that the government had violated Ireland’s Constitution and commitments under the European Convention on Human Rights because the Plan is “but one, albeit extremely important, piece of the jigsaw.” Friends of the Irish Environment v. Ireland, 2017 No. 793 JR (High Court of Ireland).
French Climate Activists Were Acquitted of Theft, Successfully Claiming Civil Disobedience Was Necessary to Push for Stronger Climate Action
A criminal court in Lyon found that climate activists had stolen portraits of the French President, Emmanuel Macron, out of necessity to call attention to France’s failure to meet its climate targets.
The defendants were charged with fraudulently removing the portraits from a town hall in Lyon in February 2019. The prosecutor sought to impose a fine of 500 euros on each defendant. The court heard testimony from a former government minister that France has not complied with the Paris Agreement due to a lack of political will, and that only the president can order the action required by the present situation. An ecologist also testified about the necessity for rapid change in order to limit temperature rise. The defendants argued that the use of legal channels and warnings from scientific experts had not provided sufficient leverage, and they believed that acts of non-violent civil disobedience were required to raise awareness of the need for policy change.
The court agreed, finding that climate change seriously affects the future of humanity by provoking natural disasters, leading to violent conflicts, and threatening flora and fauna; and that although France is committed to certain measures to address climate change, the defense’s submissions showed that the government’s objectives will not be achieved. The court concluded that, under these circumstances, citizens’ means of expression could not be limited to voting, and that the defendants’ theft of the portrait was a necessary substitute for impossible dialogue between the government and the people. The court accordingly acquitted both defendants. A growing number of presidential portraits have been removed in France as part of a climate movement called “Take Down Macron”. State v. Delahalle & Goinvic (Criminal Court of Lyon).
