By Margaret Barry and Hillary Aidun
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at email@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 127.
State and Local Government Climate Cases to Proceed Against Fossil Fuel Companies in State Courts After Supreme Court Declined to Stay Remand Orders
On October 22, 2019, the U.S. Supreme Court denied fossil fuel companies’ application for a stay pending appeal of a district court’s remand order returning Baltimore’s lawsuit seeking to hold the companies liable for impacts of climate change. The application was presented to Chief Justice Roberts, the circuit justice for the Fourth Circuit, who referred the application to the Court. The Court’s order denying the application indicated that Justice Alito did not take part in the consideration or decision of the application. Also on October 22, the circuit justices for the First Circuit (Breyer) and Tenth Circuit (Sotomayor) denied applications from fossil fuel companies for stays pending appeal of remand orders in cases brought by Rhode Island and Colorado municipal governments. The companies’ appeal of the remand order in Baltimore’s case has been fully briefed in the Fourth Circuit and is scheduled for oral argument on December 11. As of November 5, the district court in Maryland had not yet issued an order to lift its temporary stay on the remand order. In the Rhode Island case, the federal district court issued a text order granting the motion to remand two days after the Supreme Court denied a stay. The companies’ brief in their First Circuit appeal of the remand order is due on November 20. The federal district court in the Colorado case notified the state court of the remand order on October 8, immediately after denying oil and gas companies’ emergency motion for a stay. Other developments in governmental climate change cases against fossil fuel companies included the scheduling of oral argument in the Second Circuit for November 22 in New York City’s case. BP p.l.c. v. Mayor & City of Baltimore, No. 19A368 (U.S. Oct. 22, 2019); BP p.l.c. v. Rhode Island, No. 19A391 (U.S. Oct. 22, 2019); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 19A428 (U.S. Oct. 22, 2019); City of New York v. BP p.l.c., No. 18-02188 (2d Cir. Sept. 30, 2018).
DECISIONS AND SETTLEMENTS
D.C. Circuit Dismissed Challenges to EPA Withdrawal of Obama Administration’s Mid-Term Determination on Vehicle Emission Standards
The D.C. Circuit concluded that it did not have jurisdiction to consider the U.S. Environmental Protection Agency’s (EPA’s) withdrawal of the Obama administration’s mid-term determination that model year 2022 to 2025 greenhouse gas emission standards promulgated in 2012 remained appropriate. The D.C. Circuit said the withdrawal was not a final agency action because it did not satisfy the second prong of the Supreme Court’s Bennett v. Spear test for final agency action, which requires that a final action determine rights or obligations or establish legal consequences. The court noted that the withdrawal did not itself change the emission standards established in 2012 but only created the possibility that the standards could be modified in the future, similar to an agency’s grant of a petition for reconsideration of a rule. The court was not persuaded by the petitioners’ arguments that the withdrawal satisfied the second prong because it had the direct legal consequence of requiring EPA to conduct rulemaking, because it created legal consequences for states that had to act quickly to put California’s standards in place in accordance with Section 117 of the Clean Air Act, and because it withdrew the Obama administration’s determination, which was itself a final agency action. California v. EPA, Nos. 18-1114, 18-1118, 18-1139, 18-1162 (D.C. Cir. Oct. 25, 2019).
Ninth Circuit Affirmed Order Directing Department of Energy to Publish Obama-Era Energy Conservation Standards
The Ninth Circuit Court of Appeals agreed with a district court that a U.S. Department of Energy (DOE) regulation imposed a non-discretionary duty on DOE to publish four energy conservation standards approved by DOE at the end of the Obama administration. The Ninth Circuit therefore lifted its stay on the district court’s order directing DOE to publish the standards in the Federal Register. The standards at issue covered portable air conditioners, commercial packaged boilers, uninterruptible power supplies, and air compressors. Natural Resources Defense Council, Inc. v. Perry, No. 18-15380 (9th Cir. Oct. 10, 2019).
Plaintiffs Withdrew Lawsuit After Climate Change-Threatened Caribou Listed as Endangered
In a lawsuit seeking to compel the U.S. Fish and Wildlife Service (FWS) to list the Southern Mountain Caribou distinct population segment (DPS) as endangered or threatened, conservation groups filed a notice of voluntary dismissal after the FWS issued a final rule listing the DPS as endangered and designating critical habitat. The final rule identified climate change as a threat to the caribou and stated that “changes in climate could directly impact the southern mountain caribou DPS by: (1) Reducing the abundance, distribution, and quality of caribou habitat; (2) limiting the ability of caribou to move between seasonal habitats; and (3) limiting their ability to avoid predation. Impacts from climate change may also affect caribou and their habitat by affecting external factors such as increased disease and insect outbreaks, increased fire occurrence, and changes in snow depth.” Center for Biological Diversity v. Bernhardt, No. 2:19-cv-00265 (D. Idaho Oct. 29, 2019).
Idaho Federal Court Enjoined 2019 Amendments to Sage-Grouse Plans
The federal district court for the District of Idaho granted a motion for a preliminary injunction barring the U.S. Bureau of Land Management (BLM) from implementing the 2019 BLM Sage-Grouse Plan Amendments for Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon. The court directed that a 2015 plan (which is also being challenged in the lawsuit) remain in effect while the court considers the merits of the plaintiffs’ claims, which include claims that the 2019 Plan Amendments failed to evaluate climate change impacts. In granting the preliminary injunction, the court found that the plaintiffs were likely to succeed on their claims that the 2019 Plan Amendments contained substantial reductions in protections for the sage grouse (compared to the 2015 Plans) without justification and that the environmental impact statements (EISs) failed to comply with the National Environmental Policy Act’s requirement that reasonable alternatives be considered; failed to contain a sufficient cumulative impacts analysis; and failed to take the required “hard look” at the environmental consequences. The court also found that the plaintiffs were likely to succeed on their claim that supplemental draft EISs should have been issued. In addition, the court found a likelihood of irreparable harm due to numerous site-specific applications for drilling and mining projects in sage-grouse habitats that would be subject to the 2019 Plan Amendments and found that the balance of hardships tipped towards the plaintiffs. Western Watersheds Project v. Schneider, No. 1:16-cv-00083 (D. Idaho Oct. 16, 2019).
Montana Federal Court Denied Defendants’ Early Motion for Judgment on the Pleadings in Challenge to Mine Project
The federal district court for the District of Montana denied motions for judgment on the pleadings for two claims in a lawsuit challenging federal determinations authorizing a silver and copper mine project in Montana. First, the court noted that the federal defendants had acknowledged that the complaint stated a cognizable claim that the decision not to reinitiate Endangered Species Act consultation for the grizzly bear in connection with the project was arbitrary and capricious. Second, the court rejected the arguments that the plaintiffs lacked standing to challenge the use of an allegedly improper metric to measure incidental take of bull trout—which the complaint alleged were particularly vulnerable to climate change—and that this claim was not ripe because the taking of the bull trout would not occur until Phase II of the project, which was not yet approved. Ksanka Kupaqa Xaʾⱡȼin v. U.S. Fish & Wildlife Service, No. 9:19-cv-00020 (D. Mont. Oct. 10, 2019).
Alaska Federal Court Upheld Determination that Listing of Pacific Walrus as Endangered or Threatened Was Not Warranted
The federal district court for the District of Alaska granted summary judgment to the federal government in Center for Biological Diversity’s lawsuit challenging the 2017 determination that listing of the Pacific walrus as endangered or threatened was not warranted. First, the court found that the U.S. Fish and Wildlife Service (FWS) had provided a reasoned explanation for changing its policy from a 2011 decision that listing was warranted but precluded, including change concerning the effect of projected future losses of sea-ice habitat. Second, the court rejected the claim that the FWS arbitrarily defined the foreseeable future to extend to 2060 rather than 2100. The court said the policy of using 2060 as the foreseeable future timeframe was permissible under the Endangered Species Act, that the use of 2100 in the 2011 listing decision was not determinative, and that the FWS provided reasons for using 2060. Third, the court found that the FWS did not act arbitrarily or capriciously in drawing the conclusion that the Pacific walrus could adapt to loss of habitat. Fourth, the court rejected the argument that the FWS “treated scientific uncertainty inconsistently” by “dismissing the negative impacts of sea ice loss beyond 2060 because of uncertainly, while relying on uncertainty to conclude that the walrus would be able to adapt to the loss of its sea ice habitat, that the population is approaching stability, and that subsistence harvest would remain sustainable.” Fifth, the court said the FWS had adequately considered sea-ice and land habitat and that the failure to consider coastal erosion was not arbitrary and capricious. Center for Biological Diversity v. Bernhardt, No. 3:18-cv-00064 (D. Alaska Sept. 26, 2019).
Minnesota Appellate Court Said Pollution Control Agency Must Consider Dairy Farm Expansion’s Greenhouse Gas Emissions
In an unpublished opinion, the Minnesota Court of Appeals reversed and remanded the Minnesota Pollution Control Agency’s (MPCA’s) determination that an environmental impact statement was not necessary for the proposed expansion of a dairy farm concentrated animal feeding operation. The court concluded that the MPCA should have considered greenhouse gas emissions—an issue raised by an environmental group during the comment period—even though the issue was not included on the alternative environmental assessment worksheet for animal feedlots used in the environmental review. The court noted that the MPCA did not dispute that large dairy farm operations emit methane and also that the MPCA indicated that it was considering changing its review for feedlots to include greenhouse gas emissions, implying that “the MPCA was aware of, but failed to consider the potential effects of the greenhouse-gas emissions.” The court rejected other objections to the MPCA’s determinations. In re Proposed Expansion of Daley Farms of Lewiston LLP et al., Nos. A19-0207 & A19-0209 (Minn. Ct. App. Oct. 14, 2019).
California Appellate Court Found Shortcomings in Napa County’s Reliance on Woodland Preservation as Mitigation Measure for Vineyard Project
The California Court of Appeal found that the Center for Biological Diversity (CBD) demonstrated that an environmental impact report’s (EIR’s) conclusion that a vineyard-conversion project would not have a significant impact on greenhouse gas emissions was not supported by substantial evidence. Although the court agreed with the respondent, Napa County, that woodland preservation could mitigate the project’s greenhouse gas emissions, the court concluded that such preservation would not have mitigation or offset value if the trees “would have reasonably remained otherwise.” In this case, the court said substantial evidence did not support an inference that “trees to be permanently conserved would not reasonably have remained on the property” since the EIR did not identify the location of woodland acres that would be preserved and 40% of the property was currently undevelopable under local regulations. The court rejected other climate change arguments made by CBD, deferring to the County’s choice of methodology regarding the accounting for loss of carbon sequestration due to tree removal and regarding the calculation of greenhouse gas emissions from downed trees. Living Rivers Council v. County of Napa, Nos. A154253, A154300, A154314 (Cal. Ct. App. Sept. 30, 2019).
Trial Began in New York Attorney General’s Fraud Action Against Exxon
The trial in the New York attorney general’s fraud action against Exxon Mobil Corporation (Exxon) began on October 22, 2019 and was scheduled to last three weeks. On October 16, the court held a hearing at which it denied three motions: (1) the attorney general’s motion for an adverse inference against Exxon for spoliation of evidence in connection with Exxon’s failure to preserve emails from its former chief executive Rex Tillerson’s “Wayne Tracker” email account; (2) Exxon’s motion to exclude the testimony of the attorney general’s expert witness on whether Exxon’s alleged misrepresentations had a quantitative impact on the company’s stock price; and (3) Exxon’s motion to exclude testimony of an expert witness on whether Exxon’s use of two metrics (proxy costs and GHG costs) were misleading and material to investors. The court denied the attorney general’s motion without prejudice to renewal at trial. Select documents are available on the case’s page on the U.S. Climate Case Chart. All filings in the case can be viewed on New York’s eCourts site. People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Oct. 16, 2019).
New York Court Dismissed Challenge to State’s Nuclear Plant Subsidies
A New York court upheld the New York State Public Service Commission’s (PSC’s) Clean Energy Standard and Zero Emission Credit (ZEC) program for nuclear plants. The court found that the PSC had complied with requirements of the State Administrative Procedure Act, including by “adequately striv[ing] to ensure, to the maximum extent practical” that the application of the term “zero-emission” to power plants complied with the SAPA goal that agencies write “in a clear and coherent manner, using words with common and everyday meanings.” In addition, the court found that the administrative record adequately supported the PSC’s use of the social cost of carbon in the calculation of ZEC payments. The court also concluded there was adequate support in the record for the PSC’s conclusions regarding reduced carbon emissions associated with continued operation of the nuclear plants and the PSC’s findings of “public necessity.” Hudson River Sloop Clearwater, Inc. v. New York State Public Service Commission, Index No. 7242-16 (N.Y. Sup. Ct. Oct. 8, 2019).
NEW CASES, MOTIONS, AND NOTICES
Automakers and Seven States Sought to Intervene to Defend NHTSA’s Preemption of State Vehicle Standards
Seven states, a trade association representing automobile manufacturers, and an umbrella organization representing certain automobile manufacturers and trade groups filed motions to intervene in support of the National Highway Traffic Safety Administration (NHTSA) in a proceeding filed in the D.C. Circuit to challenge NHTSA’s final rule withdrawing California’s waiver for its greenhouse gas and zero-emission vehicle (ZEV) program and preempting state programs that regulate vehicle greenhouse gas emissions or create ZEV mandates. Environmental Defense Fund (EDF) filed a protective petition for review in the D.C. Circuit in September to protect its right to judicial review in the event that the federal district court in which EDF and others have filed lawsuits challenging the final rule determines that the district court lacks subject matter jurisdiction. On October 28, EDF and other groups filed a second protective petition for review after the federal government sought to dismiss the district court case or transfer it to the D.C. Circuit. The next day EDF sought voluntary dismissal without prejudice of its original petition. The seven states—Ohio, Alabama, Alaska, Louisiana, Texas, Utah, and West Virginia—sought to intervene “both because California’s standards elevate California’s sovereignty above other States and because those standards shape the market for the regulated vehicles nationwide.” The automaker groups argued that they should be allowed to intervene as of right because they represent a substantial portion of the regulated industry and have an interest in a single national regulatory program. Environmental Defense Fund v. National Highway Traffic Safety Administration, No. 19-1200 (D.C. Cir., filed Sept. 27, 2019); Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir., filed Oct. 28, 2019).
Massachusetts Attorney General Launched Enforcement Action Against Exxon for Allegedly Misleading Investors and Consumers
On October 24, 2019, the Massachusetts attorney general filed a complaint in Massachusetts Superior Court asserting that Exxon Mobil Corporation (Exxon) committed deceptive practices against Massachusetts investors and consumers by failing to disclose climate change risks, misrepresenting its business practices related to use of proxy costs of carbon, misleadingly advertising its products, failing to disclose its products’ impacts on climate change, and engaging in greenwashing campaigns. The complaint said Exxon’s actions and practices violated the Massachusetts Consumer Protection Act. The attorney general seeks injunctive relief, penalties, the costs investigation, and attorneys’ fees. Prior to the filing of the lawsuit, the Superior Court denied an emergency motion by Exxon for an extension of time in which to initiate a meet-and-confer with the attorney general’s office. Exxon reportedly argued that it had a right to confer in person and that it could not do so until November due to its attorneys’ involvement in the ongoing trial in the New York attorney general’s fraud action against Exxon. Commonwealth v. Exxon Mobil Corp., No. 19-3333 (Mass. Super. Ct., filed Oct. 24, 2019).
U.S. Sued to Block Implementation of California-Quebec Cooperation on Greenhouse Gas Emissions
The United States filed a lawsuit in the federal district court for the Eastern District of California seeking to bar California from continuing to implement a 2013 agreement with the provincial government of Quebec, Canada pursuant to which California and Quebec work to harmonize their greenhouse gas reporting and cap-and-trade programs. The U.S. contended that the agreement—along with a separate agreement between California and the Western Climate Initiative and certain supporting provisions of California law—violated the Constitution by intruding on federal powers to negotiate international agreements. The complaint alleged that “[a]llowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is … anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States’ ability to negotiate competitive international agreements.” The U.S. asserted claims under the Treaty Clause, the Compact Clause, the foreign affairs doctrine, and the foreign Commerce Clause. United States v. California, No. 2:19-cv-02142 (E.D. Cal., filed Oct. 23, 2019).
States Filed Protective Challenge to EPA Extension of Deadlines for Implementing Landfill Emission Guidelines
California and eight other states filed a protective petition for review in the D.C. Circuit Court of Appeals challenging EPA’s final rule published in August 2019 that had the effect of extending certain implementation deadlines for the emission guidelines for municipal solid waste landfills promulgated in 2016. In their petition, the states indicated that they believed a district court order in the Northern District of California would mitigate the final rule’s harm, but that it was necessary to file the petition because EPA had filed a motion to amend the district court’s order. Environmental Defense Fund also filed a petition for review of EPA’s final rule. California v. EPA, No. 19-1227 (D.C. Cir., filed Oct. 25, 2019); Environmental Defense Fund v. EPA, No. 19-1222 (D.C. Cir., filed Oct. 23, 2019).
Farmers, Ethanol Producers Challenged EPA Decision on Small Refinery Exemptions
Trade groups for producers of ethanol and other biofuels and trade associations for farmers filed a petition for review of EPA’s August 2019 decision regarding small refinery exemptions to renewable fuel standard requirements for 2018. Renewable Fuels Association v. EPA, No. 19-1220 (D.C. Cir., filed Oct. 22, 2019).
Sierra Club Sought FOIA Response from SEC Concerning Climate Change Shareholder Proposals
Sierra Club filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Securities and Exchange Commission (SEC) asserting that the agency failed to comply with FOIA deadlines and perform an adequate search for records in response to Sierra Club’s requests for external communications and internal records regarding shareholder proposals on climate change, greenhouse gas emissions, or the Paris Agreement. Sierra Club’s requests also sought records involving the SEC’s use of the term “micromanagement” in evaluating shareholder proposals. Sierra Club alleged that the SEC was increasingly using micromanagement as a basis for shareholder proposal no-action letters. The complaint cited, in particular, the SEC’s “unprecedented” no-action letter allowing EOG Resources, Inc. to omit from shareholder consideration a proposed resolution requiring the company to set a target for its greenhouse gas emissions. Sierra Club v. U.S. Securities & Exchange Commission, No. 4:19-cv-06971 (N.D. Cal., filed Oct. 24, 2019).
Lawsuit Filed Challenging Resource Management Plan Amendment that Makes Bay Area and Central Coast Public Lands Available for Oil and Gas Development
Center for Biological Diversity and Sierra Club filed a lawsuit in the federal district court for the Northern District of California challenging BLM’s approval of a resource management plan amendment for a planning area that included California’s Bay Area and Central coast. The complaint alleged that the plan amendment would make 725,500 acres available for oil and gas leasing and that BLM’s environmental review failed to adequately analyze the impacts of oil and gas development, including effects on greenhouse gas emission and the climate. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 4:19-cv-07155 (N.D. Cal. Oct. 30, 2019).
Lawsuit Asked Court to Require Designation of Critical Habitat for Endangered Hawaiian Plants and Animals
Center for Biological Diversity filed an Endangered Species Act lawsuit in federal court in the District of Hawaii seeking to compel the designation of critical habitat for 14 species of plants and animals from the island of Hawai‘i that were listed as endangered in 2013. The complaint alleged that the species were in danger of extinction throughout their range due to serious and ongoing threats including climate change. Center for Biological Diversity v. Bernhardt, No. 1:19-cv-00588 (D. Haw., filed Oct. 28, 2019).
New York Asked Federal Court to Require New State-by-State Quotas for Shifting Summer Flounder Fishery
New York State filed a federal lawsuit challenging a final rule that established the 2020–2021 specifications for the summer flounder fishery, including a total annual commercial summer flounder quota and a state-by-state allocation of that quota based on a 1993 allocation rule. New York, along with the New York State Department of Environmental Conservation (DEC) and the DEC Commissioner, alleged that the summer flounder (also known as fluke) population had shifted northeast in the years since the state-by-state quotas were established—“likely due to … factors including ocean warming”—and that New York now has an unfairly low allocation of the quota based on out-of-date data about the summer flounder population. The plaintiffs alleged that this allocation led to, among other things, New York-based fishermen catching summer flounder in waters near Long Island (now the center of the fishery), then traveling to southern states such as Virginia and North Carolina to land their catch, and returning to their home ports in New York. The complaint asserted that the 2020–2021 specifications rule and the 1993 allocation rule were inconsistent with the Magnuson-Stevens Act and arbitrary and capricious. On the same day that New York filed its complaint, the State also filed a motion for summary judgment. New York previously filed a similar lawsuit challenging the 2019 allocation. The district court closed that case after receiving a letter from the federal defendants indicating that they anticipated issuing a proposed rule revising the 1993 state-by-state quotas in September 2019 and finalizing the regulation in March or April 2020; the court said the case could be reopened no later than April 2020. New York v. Ross, No. 1:19-cv-09380 (S.D.N.Y., filed Oct. 10, 2019).
Sierra Club Filed Lawsuit Seeking Documents Supporting EPA Administrator’s Climate Change Assertions in TV Interview
Sierra Club filed a FOIA lawsuit in federal court in the District of Columbia seeking an order requiring EPA to respond to its request for records on which EPA Administrator Andrew Wheeler relied in a television interview in March 2019 when he asserted that “most of the threats from climate change are 50 to 75 years out.” Sierra Club alleged that Wheeler’s assertion “directly contradicts the clear consensus of the scientific community, including the United States’ own Fourth National Climate Assessment—a monumental work authored by scientists from 13 federal agencies including EPA, and published months before the Administrator’s interview.” Sierra Club alleged that EPA initially signaled it would comply with the FOIA request but later categorically denied it, claiming that the request was not adequately specific. Sierra Club asserted that this was an improper basis for denial of the request. Sierra Club v. EPA, No. 1:19-cv-03018 (D.D.C., filed Oct. 9, 2019).
Environmental Groups Challenged BLM’s Failure to Consider Colorado Resource Management Plan’s Climate Impacts
Center for Biological Diversity and two other groups filed a lawsuit in federal court in Colorado challenging BLM’s approval of a resource management plan in western Colorado that applied to 1,061,400 acres of BLM-administered surface land and 1,231,200 acres of BLM-managed federal mineral estate. The plaintiffs alleged that the plan made 935,600 acres available for oil and gas leasing and that BLM projected that 3,940 wells would be drilled. They asserted that BLM violated NEPA by failing to address foreseeable indirect impacts from downstream combustion of oil and gas resources and by failing to consider cumulative effects to the climate caused by foreseeable oil and gas production under the plan in combination with BLM’s nationwide public lands oil and gas program. The plaintiffs also said BLM’s failure to consider alternatives to oil and gas leasing and development violated NEPA. Center for Biological Diversity v. Bernhardt, No. 1:19-cv-02869 (D. Colo., filed Oct. 8, 2019).
Conservation Groups Alleged Interior Department Failed to Consider Climate Change in Review of Management Plan for Glen Canyon Dam
Three conservation groups filed a lawsuit in federal court in Arizona asserting that the U.S. Department of the Interior’s December 2016 plan for managing the Glen Canyon Dam violated NEPA due to the Department’s “illegal and willful omission of Colorado River climate change impact projections from the required environmental impacts analysis.” The plaintiffs said the Department failed to analyze the environmental consequences of the proposed action on the affected environment, including the cumulative and indirect impacts caused by climate change; improperly drafted the project’s purpose and need statement to exclude climate change adaption; failed to consider a reasonable range of alternatives, including numerous reasonable alternatives that would adapt the Dam’s operations to climate change impacts; and failed to explain the relationship between relevant land use policies, controls, and guidance documents in regard to the examined alternatives and rejected alternatives and climate change impacts. The plaintiffs also contended that even if the 2016 environmental impact statement was adequate at that time, a supplemental EIS was required because of recently published scientific research on climate change impacts on the Colorado River. Save the Colorado v. U.S. Department of the Interior, No. 3:19-cv-08285 (D. Ariz., filed Oct. 1, 2019).
Lawsuit Filed Challenging Modification to Greater Sage-Grouse Oregon Conservation Plan
Three conservation groups filed a lawsuit challenging BLM’s March 2019 decision “to reverse and abandon” a provision of the 2015 conservation plan for the greater sage-grouse in Oregon by closing approximately 22,000 acres to livestock grazing. The plaintiffs alleged that the “ungrazed areas serve as indispensable control sites to study the effects of grazing—and of not grazing—on unique sagebrush plant communities that are essential to the survival and recovery of the sage-grouse.” They asserted that the amendment to the conservation violated NEPA by, among other things, failing “to consider the relationship of the plan amendment to global climate change,” including failing to consider effects specific to certain areas that lie within BLM-identified Climate Change Conservation Areas.” The complaint also asserted a violation of the Federal Land Policy and Management Act. Oregon Natural Desert Association v. Hanley, No. 3:19-cv-01550 (D. Or., filed Sept. 27, 2019).
Rhode Island Court to Consider Its Jurisdiction to Review State’s Denial of Climate Change Rulemaking Petition
At a hearing on October 28, 2019, a Rhode Island state court held a hearing in a lawsuit challenging the Rhode Island Department of Environmental Management’s (RIDEM’s) denial in 2018 of a petition requesting that RIDEM initiate rulemaking to address climate change. News accounts reported that the court set a schedule for the parties to address the threshold issue of whether the court had jurisdiction to hear the case. Duryea v. Rhode Island Department of Environmental Management, No. PC-2018-7920 (R.I. Super. Ct. Oct. 28, 2019).
CEQA Lawsuit Alleged Plan for Transit-Oriented Development in San Diego Neighborhood Did Not Adequately Analyze Greenhouse Gas Impacts
A community group filed a California Environmental Quality Act lawsuit against the City of San Diego challenging the approval of the Balboa Avenue Station Area Specific Plan, which affects approximately 210 acres and was intended to provide a framework for transit-oriented development. The group alleged that the City failed to adequately analyze the environmental effects of the Plan, including its greenhouse gas impacts. The group also alleged that the Plan violated the City’s General Plan and Climate Action Plan. Friends of Rose Creek v. City of San Diego, No. 37-2019-00053679-CU-TT-CTL (Cal. Super. Ct., filed Oct. 9, 2019).
State Lawsuit in Colorado Sought Stay on Permitting for Oil and Natural Gas Development Pending Completion of Rulemaking Under New Law
A community organization representing residents of Broomfield, Colorado filed a lawsuit asking a Colorado state court to stay permitting for an application for a horizontal wellbore spacing unit until the Colorado Oil and Gas Conservation Commission completed rulemaking required by SB 19-181. The plaintiff also requested a stay of permitting in all cases involving permitting of any drilling, pooling, and spacing units until rulemaking was completed. The plaintiff said the new state law required rulemaking that addressed the potential cumulative impacts of oil and gas development as well as rulemaking to minimize emissions of methane and other pollutants from oil and natural gas facilities. Wildgrass Oil & Gas Committee v. Colorado Oil & Gas Conservation Commission, No. 2019CV33888 (Colo. Dist. Ct., filed Oct. 8, 2019).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Canadian Youth Alleged Government Violates Constitutional Rights by Failing to Curb GHGs
Fifteen children and youths have brought suit against the Queen and Attorney General of Canada, alleging that Canada emits and contributes to emitting greenhouse gases that are incompatible with a stable climate. The plaintiffs argue that Canada’s actions have violated their rights under the Charter of Rights and Freedom, as well as the rights of present and future Canadian children. They seek declaratory relief and an order requiring the government to adopt a Climate Recovery Plan.
Plaintiffs are children and youth in Canada who allege that they have been and will continue to be exposed to climate change impacts that interfere with their physical and psychological wellbeing, as well as their ability to make fundamental life choices. The plaintiffs assert that because of their vulnerability and age, they will bear a disproportionate share of the burden imposed by climate change. They claim that Canada has caused, contributed to, and allowed a level of greenhouse gas emissions that is incompatible with a stable climate system; adopted greenhouse gas emissions targets that are inconsistent with the best available science regarding what action is necessary to avoid dangerous climate change; failed to meet its own national greenhouse gas emission targets; and actively participated in and supported the development, expansion, and operation of industries and activities involving fossil fuels that emit a level of greenhouse gases that is incompatible with a stable climate.
Plaintiffs seek declarations that defendants have unjustifiably infringed their rights—and the rights of all present and future children and youth in Canada—under the Canadian Charter of Rights and Freedoms. Specifically, plaintiffs allege that defendants have violated Section 7 of the Charter, which protects the rights to life, liberty and security; and Section 15 of the Charter, which provides that every individual is equal under the law. Plaintiffs also argue that Canada has a common law and constitutional obligation to protect the integrity of common natural resources that are fundamental to sustaining human life and liberties, and seek a declaration that defendants have failed to discharge their public trust obligations with respect to those resources. Finally, they seek an order requiring defendants to develop and implement an enforceable Climate Recovery Plan that is consistent with Canada’s fair share of the global carbon budget necessary to achieve greenhouse gas emissions, and ask the court to retain jurisdiction to ensure the plan is implemented. La Rose v. Her Majesty the Queen T-1750-19 (Federal Court of Canada).
Climate Group Filed Memorandum with French Constitutional Council Alleging New Climate Bill Contains Insufficient Measures
On September 26, 2019, the French Parliament approved a bill related to energy and the climate, which aims to achieve carbon neutrality by 2050. The environmental nongovernmental organization Notre Affaire à Tous (NAAT) filed an external contribution (similar to a friend of the court filing) with the French Constitutional Council, which according to NAAT is reviewing the new legislation following a legal challenge. NAAT alleges that the bill does not comply with the environmental obligation of vigilance previously recognized by the Constitutional Council, and asks the Council to recognize the right to live in a sustainable climate as a constitutional principle.
According to NAAT, its memorandum makes the following arguments: 1) the bill mandates insufficient greenhouse gas cuts to achieve carbon neutrality; 2) the absence of adequate corporate greenhouse gas reductions violates the vigilance obligation; 3) the lack of existing financial measures makes achieving carbon neutrality an uncertain goal; 4) the legislation’s carbon neutrality objective should not be confined to energy, as agriculture represents 20% of France’s greenhouse gas emissions; 5) the intermediate targets provided by the bill are not consistent with achieving carbon neutrality; 6) the absence of an independent body with reviewing and enforcement powers runs afoul of the principle of vigilance. External Contribution (French Constitutional Council).
Greenpeace Luxembourg Filed Suit Seeking Information on National Pension Fund’s Investments and Exposure to Climate Risks
Greenpeace Luxembourg has brought an action in administrative court against the Luxembourgish Minister of Social Security, Roman Schneider. Greenpeace claims that the Minister failed to respond to an August letter asking for information regarding how Luxembourg’s sovereign pension fund planned to align its investments with the objectives of the Paris Agreement, and information on the climate-related financial risks associated with the fund’s investments. According to Greenpeace, on October 1 an administrative judge ordered the parties to provide their written positions on the issues raised. Greenpeace Luxembourg v. Schneider (Luxembourg Administrative Court).
Environmental Group Brought Suit Under Polish Law to Cut Greenhouse Gas Emissions from Europe’s Largest Coal Plant
Environmental law organization ClientEarth is seeking to reduce greenhouse gas emissions from Europe’s largest power plant, Belchatow. According to ClientEarth, Belchatow burns 45 million tons of a form of coal called lignite every year, and has emitted approximately 1 billion tons of carbon dioxide over its lifetime, making it Europe’s greatest source of greenhouse gas pollution. ClientEarth alleges that the plant’s operator, Polska Grupa Energetyczna, has not presented any official plan to reduce its climate impacts. The lawsuit seeks to block the plant operators from burning lignite – or require measures to reduce carbon dioxide emissions – by 2035. According to ClientEarth, the lawsuit arises out of Article 323 of Poland’s 2001 Environmental Protection Law, which permits ecological organizations to demand that preventive measures be taken when an activity harms the environment as a common good. ClientEarth v. Polska Grupa Energetyczna (Regional Court of Łódź).
Advocate and Procurator General Urged Dutch Supreme Court to Uphold Decision Order GHG Cuts
A Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued the Dutch government to compel more ambitious action on climate change. In June 2015, the Hague District Court ordered the Dutch state to limit greenhouse emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. In October 2018, the Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25% by 2020, the Dutch government contravened its duty of care under Articles 2 and 8 of the European Convention on Human Rights. The Dutch government appealed the decision, and the Supreme Court of the Netherlands heard the appeal on in May 2019. On September 13, 2019 the Advocate and Procurator General, independent judicial officers, issued a formal opinion recommending that the Supreme Court affirm. The Supreme Court is expected to issue a decision on December 20. Urgenda v. Netherlands HAZA C/09/00456689 (Dutch Court of Appeals).
Court Denied Injunction to Compel EU to Enact Deeper GHG Cuts, Plaintiffs Appealed
Ten families brought an action in the EU General Court seeking an injunction to compel the EU to adopt more stringent greenhouse gas reduction targets. Plaintiffs allege that the EU’s existing goal of reducing domestic emissions by 40% by 2030 as compared to 1990 levels is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property. In May 2019 the European General Court dismissed the case on procedural grounds—without reaching the merits—after concluding that plaintiffs lacked standing. The court reasoned that plaintiffs are not sufficiently and directly affected by EU climate change policies, and case law requires that plaintiffs be impacted by the challenged act in a manner that is “peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.” The plaintiffs appealed to the European Court of Justice on July 11, 2019, arguing that the EU General Court erred in concluding that they lacked standing. Carvalho v. The European Parliament and the Council T-330/18 (EU Gen. Ct.).