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 columbiaclimate@gmail.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 128.
FEATURED CASE
Supreme Court Denied Publishers’ Petitions in Climate Scientist’s Defamation Case; Alito Issued Written Dissent
The U.S. Supreme Court denied two petitions for writ of certiorari seeking review of a D.C. Court of Appeals decision that allowed climate scientist Michael Mann to proceed with a defamation lawsuit against the authors and publishers of articles attributing scientific misconduct to Mann. Justice Alito issued a written dissent asserting that the questions raised by the petitioners “go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” Alito wrote that one of the questions raised—whether a court or a jury should determine the truth of allegedly defamatory statements—was a “delicate and sensitive” question that “has serious implications for the right to freedom of expression,” especially given the “highly technical” matter at issue in this case and the “intense feelings” that the issue of climate change arouses in the jury pool. Alito also said the petitioners raised the “very important question” of where to draw the line between “a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day” (which Alito said would be protected by the First Amendment and “a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false” (which the First Amendment would not protect). Alito noted that he recognized that the D.C. court’s decision was “interlocutory” and that an ultimate outcome adverse to the petitioners could be reviewed later, but he said requiring a “free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden.” National Review, Inc. v. Mann, No. 18-1451 (U.S. Nov. 25, 2019); Competitive Enterprise Institute v. Mann, No. 18-1477 (U.S. Nov. 25, 2019).
DECISIONS AND SETTLEMENTS
D.C. Circuit Declined to Expedite or Stay Challenges to ACE Rule
On November 22, 2019, the D.C. Circuit Court of Appeals denied a motion by the U.S. Environmental Protection Agency (EPA) to expedite pending challenges to the Affordable Clean Energy (ACE) rule, which repealed and replaced the Obama administration’s Clean Power Plan. The D.C. Circuit said the respondents had not “articulated ‘strongly compelling’ reasons that would justify expedition.” The court also denied motions by the Environmental and Public Health Petitioners and the State and Municipal Petitioners to hold the cases in abeyance pending the resolution of the petitioners’ requests for administrative reconsideration. (The Environmental and Public Health Petitioners also argued that the cases should be held in abeyance until EPA finalized its proposal to relax the application of New Source Review (NSR) requirements; the petitioners argued that EPA’s anticipated finalization of the NSR regulations would be “highly disruptive” to the litigation because it would alter essential aspects of the ACE rule, including costs, emissions consequences, and sources’ expected responses.) The D.C. Circuit also denied a motion by the Biogenic CO2 Coalition to sever its case—which solely raised the issue of EPA’s regulation of emissions from agricultural biomass feedstocks—and hold the case in abeyance pending EPA’s “forthcoming” administrative resolution of biogenic emissions issues. The court directed the parties to submit a proposed format for briefing within 30 days. Earlier in November, the D.C. Circuit granted Nevada’s motion for voluntary dismissal and granted pending motions to intervene. American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir. Nov. 22, 2019).
D.C. Circuit Dismissed Challenge to Renewable Fuel Small Refinery Exemption Criteria
In an unpublished judgment, the D.C. Circuit Court of Appeals dismissed a proceeding challenging EPA’s apparent modification of the criteria for a “small refinery” exemption from Renewable Fuel Program requirements. The court found that the petitioner—a biofuels trade group—failed to identify a final agency action at the time the petition was filed in May 2018. The court indicated that “EPA’s briefing and oral argument paint a troubling picture of intentionally shrouded and hidden agency law that could have left those aggrieved by the agency’s actions without a viable avenue for judicial review” but concluded that it was not necessary to determine “whether or how an ongoing pattern of genuinely secret law might be challenged” because EPA had publicly issued a memorandum in August 2019 that announced a new decisional framework for exemptions. Advanced Biofuels Association v. EPA, No. 18-1115 (D.C. Cir. Nov. 12, 2019).
Colorado Federal Court Enjoined Implementation of Coal Mining Plan During Further Analysis of Methane Flaring Alternative
The federal district court for the District of Colorado enjoined a coal mining company from proceeding with a mining plan in Colorado until further analysis was conducted regarding a methane flaring alternative and potential impacts to perennial streams. The court found that the Office of Surface Mining Reclamation and Enforcement (OSM) acted arbitrarily and capriciously in recommending approval of the mining plan based on other agencies’ environmental analysis documents. First, the court found that methane flaring was a reasonable alternative and that the federal agencies were required to consider it since no agency reasonably concluded it was infeasible. (The court also concluded as a threshold matter that the plaintiffs were not precluded based on litigation challenging other agency approvals related to the mine from making their argument regarding the methane flaring alternative. The court noted that the earlier litigation concerned actions involving different agencies that took place years before the actions at issue in this case. The court further noted that the court in the earlier case did not find that the plaintiffs failed to demonstrate that the methane flaring analysis was insufficient but only that the analysis had been reasonably postponed.) Second, the court rejected the plaintiffs’ argument that the defendants failed to consider the project’s cumulative climate change impacts in conjunction with past, present, and reasonably foreseeable future actions. The court said the plaintiffs waived this argument at the leasing stage and found that OSM could have reasonably concluded that the new information since the leasing stage did not significantly alter the analysis. Third, the court found that OSM should have given additional attention to impacts on perennial streams based on new information that “serves to completely reverse” the agency’s previous conclusions. The court noted that the mining company had recently filed information about a potential methane flaring system for which it was seeking Mine Safety and Health Administration approval and that OSM had thereafter sought voluntary remand without vacatur so that it could prepare an environmental assessment to consider the methane flaring proposal. The court concluded, however, that it was necessary to enjoin further work pursuant to the mining plan because “remand without vacatur or injunction would incentivize agencies to rubber stamp a new approval, rather than take a true and informed hard look.” WildEarth Guardians v. Bernhardt, No. 1:19-cv-01920 (D. Colo. Nov. 8, 2019).
Rejecting Climate Change Concerns, Federal Court Declined to Question EPA’s Remedy Selection at Superfund Site
In an order approving a consent decree that resolved federal government claims related to the cleanup of a Superfund site on the Atlantic coast of Georgia, the federal district court for the Southern District of Georgia was not persuaded by arguments that EPA’s selected remedy of capping contaminated soils would not withstand flooding caused by hurricanes, tidal changes, and global warming. (This concern had been raised by amici curiae.) The court found that the record showed that EPA considered such concerns, and the court cited EPA’s conclusion that the remedial measures provided a “long-term effective remedy with a high degree of permanence and resiliency as required by the Climate Change Adaptation Implementation Plan of 2014.” The court said it would not second-guess EPA technical judgments and found that the selection of the remedy was not unreasonable, arbitrary, or capricious. United States v. Hercules, LLC, No. 2:18-cv-62 (S.D. Ga. Nov. 27, 2019).
Montana and Trade Groups Allowed to Intervene in Challenge to Nationwide Permit that Authorized Keystone XL; Plaintiffs Moved for Summary Judgment
The federal district court for the District of Montana allowed the State of Montana and five trade groups to intervene in a lawsuit challenging the U.S. Army Corps of Engineers’ reissuance of Nationwide Permit 12 and the Corps’ application of Nationwide Permit 12 to authorize the Keystone XL pipeline. The court found that Montana and the trade groups were not entitled to intervention as of right but allowed them to intervene permissively on a limited basis since their defenses shared a common issue of law or fact—their “significant interest” in defending the legality of Nationwide Permit 12’s streamlined process for pipelines and other utility projects. On November 22, the plaintiffs filed a motion for partial summary judgment on their claims that reissuance of Nationwide Permit 12 and its application to Keystone XL violated the National Environmental Policy Act (NEPA), the Clean Water Act, and the Endangered Species Act. Under NEPA, the plaintiffs argued that the Corps failed to evaluate the indirect and cumulative effects of lifecycle greenhouse gas emissions caused by projects authorized under Nationwide Permit 12. Under the Endangered Species Act, the plaintiffs asserted that programmatic consultation was required because reissuance of Nationwide Permit 12 was clearly an agency “action” that “may affect” and “is likely to adversely affect” listed species and critical habitat due in part to the permit’s authorization of activities that cause indirect impacts associated with climate change. Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044 (D. Mont. order granting intervention Nov. 7, 2019; motion for partial summary judgment Nov. 22, 2019).
California Federal Court Denied EPA Request to Vacate Deadlines for Landfill Emission Guidelines
The federal district court for the Northern District of California denied EPA’s motion for relief from the court’s order and judgment setting a schedule for EPA to implement landfill emission guidelines adopted in August 2016. EPA sought relief from the court’s deadlines after the agency amended its regulations to extend the deadlines for states and EPA to take action. The court rejected EPA’s request, finding that that EPA had amended its regulations only to reset its non-discretionary deadline, not to rectify any violation identified by the court, and that enforcement of the original judgment was still equitable. California v. EPA, No. 18-cv-03237 (N.D. Cal. Nov. 5, 2019).
Federal Court Denied Center for Biological Diversity Request to Intervene in Defense of California County’s Denial of Oil Facility Permits
The federal district court for the Northern District of California denied Center for Biological Diversity’s (CBD’s) motion to intervene in a lawsuit challenging Alameda County’s decision not to renew conditional use permits for continued operation of an oil extraction and production facility in the City of Livermore. CBD argued that its “substantial involvement” in the matter—including its administrative appeal, which led to the County’s denial of the permits—gave it a significantly protectable interest in the litigation. In addition, CBD asserted a significantly protectable interest in “advancing its longstanding organizational mission to protect the environment and combat climate change.” Although the court agreed that CBD had a significantly protectable interest, the court found that CBD had not demonstrated that the County would not adequately represent CBD’s interests. The court also found that efficient resolution of the dispute outweighed the benefits of permissive intervention. E&B Natural Resources Management Corp. v. County of Alameda, No. 4:18-cv-05857 (N.D. Cal. Nov. 4, 2019).
Federal Court Declined to Put Case Concerning Lobster Fishery and Endangered Right Whales on Hold
The federal district court for the District of Columbia denied the National Marine Fisheries Service and other federal defendants’ (NMFS’s) motion to stay a lawsuit challenging the management of the American lobster fishery. Plaintiffs asserted that the federal defendants failed to adequately address the fishery’s impacts on the endangered North American right whale, including by failing to consider cumulative effects of climate change. NMFS argued that the case should be stayed because its pending promulgation of two conservation measures would moot the claims, but the court found that NMFS had not shown a compelling need for a stay. The court decided that the case should proceed “because harm to a critically endangered species hangs in the balance.” Center for Biological Diversity v. Ross, No. 1:18-cv-00112 (D.D.C. Oct. 31, 2019).
South Dakota Agreed Not to Enforce Provisions of Riot Boosting Act
A month after a federal court in South Dakota blocked the State from enforcing provisions of a riot boosting statute, the State and plaintiffs reached a settlement pursuant to which the State agreed not to enforce the provisions that the court temporarily enjoined. The plaintiffs had alleged that the statute had been passed in anticipation of possible protests by environmental activists along the route of the Keystone XL pipeline. Dakota Rural Action v. Noem, No. 5:19-cv-05026 (D.S.D. Oct. 24, 2019).
Federal Government Agreed to Take Actions Under Endangered Species Act to Resolve Lawsuit that Sought Action on Six Climate-Threatened Species
Center for Biological Diversity and U.S. Department of the Interior defendants reached an agreement that resolved CBD’s lawsuit that sought to compel action under the Endangered Species Act with respect to 24 species, including six species that CBD identified in its complaint as threatened by climate change. Pursuant to a stipulated settlement agreement, the U.S. Fish and Wildlife Service must abide by a schedule for making 12-month findings as to whether listing is warranted for nine species, final listing determinations for two species, proposed critical habitat designations for four species, and final critical habitat designations for two species. The agreement provides that any challenges to final determinations made in accordance with the agreement must be filed in separate actions. Center for Biological Diversity v. Bernhardt, No. 1:19-cv-01071 (D.D.C. Oct. 11, 2019).
California Appellate Court Upheld Greenhouse Gas Analysis for Sacramento’s 2035 General Plan
The California Court of Appeal affirmed the denial of a petition challenging the City of Sacramento’s 2035 General Plan and the related environmental impact report. Among other things, the appellate court rejected the petitioner’s “unsupported and undeveloped arguments” that the analysis of greenhouse gas emissions was based on faulty traffic analyses and therefore deficient. The appellate court also was not persuaded by the argument that the City did not support its rejection of a no-action alternative—i.e., the 2030 General Plan. The appellate court noted that the City rejected the no-action alternative as infeasible because it did not advance some City objectives (such as inclusion of the City’s 2012 climate action plan), had greater impacts than the 2035 General Plan (including greenhouse gas and climate change impacts), and would not avoid any significant impacts associated with the 2035 General Plan. Citizens for Positive Growth & Preservation v. City of Sacramento, No. C086345 (Cal. Ct. App. Nov. 26, 2019).
Coal Companies and Coal Executive Dropped Appeal of Dismissal of Lawsuit Against Comedian
On November 10, 2019, comedian John Oliver announced on his television show that coal executive Robert E. Murray and related coal companies had withdrawn their appeal of the dismissal of their lawsuit against Oliver. The plaintiffs asserted claims of defamation, false light invasion of privacy, and intentional infliction of emotional distress on the grounds that Oliver and the other defendants knowingly broadcast malicious statements that they knew to be false based on information provided by the plaintiffs. The allegedly defamatory statements included statements that Mr. Murray and his companies “appear to be on the same side as black lung” and that their position on a coal dust regulation was the equivalent of rooting for bees to kill a child, as well as a description of Mr. Murray as looking “like a geriatric Dr. Evil.” A West Virginia trial court dismissed the case in 2018, and an appeal had reportedly been pending before the West Virginia Supreme Court for more than a year. Marshall County Coal Co. v. Oliver, No. __ (W. Va. Nov. 10, 2019).
Connecticut High Court Upheld Variances to Allow Rebuilding of Sea Cottage in Flood-Prone Area
The Connecticut Supreme Court upheld variances granted for the reconstruction of a “sea cottage” severely damaged by Hurricane Sandy. Because the cost of repairs exceeded 50% of the sea cottage’s value, the reconstructed cottage was required to comply with certain current City of Stamford regulations for structures in flood-prone areas, including a minimum elevation requirement, even though the cottage was a legally nonconforming structure. To satisfy the elevation requirement, however, the owner had to obtain variances from building height and setback requirements. A neighbor challenged the variances. The Connecticut Supreme Court agreed with the cottage owner and the City of Stamford that the minimum flood elevation requirement applied even though the cottage was legally nonconforming, noting that the City had to impose a minimum standard of floodplain management regulation to be eligible for the National Flood Insurance Program. The court also cited the “crucial role” that zoning regulations for flood-prone areas play in responding to the threat of coastal flooding, which would be exacerbated by climate change. The court further found that the cottage owner established the existence of an “unusual hardship” warranting approval of the height and setback variances because enforcement of the height and setback restrictions would have deprived the owner of his constitutionally protected right to continue using the cottage. Mayer-Wittmann v. Zoning Board of Appeals of the City of Stamford, No. SC 19972 (Conn. Nov. 5, 2019).
NEW CASES, MOTIONS, AND NOTICES
Ninth Circuit to Hear Oral Argument in February 2020 in California Local Government Climate Change Cases
The Ninth Circuit Court of Appeals scheduled oral argument for the morning of Wednesday, February 5, 2020 for the appeals in California local governments’ climate change cases against fossil fuel companies. By that time, two other federal courts of appeal will have heard arguments in cases involving municipal claims against fossil fuel companies. The Second Circuit heard oral argument on November 22 in New York City’s appeal of a district court’s dismissal of its lawsuit. The Fourth Circuit will hear oral argument on December 11 in fossil fuel companies’ appeal of the remand order in Baltimore’s case. (The federal district court in the Baltimore case lifted the stay on the remand order on November 12.) The Ninth Circuit cases concern (1) companies’ appeals of remand orders sending six cases brought by California counties and cities back to state court and (2) Oakland and San Francisco’s appeal of orders denying their motion to remand and dismissing their cases for failure to state a claim and for lack of personal jurisdiction over four of the companies. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.); County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503 (9th Cir.); City of New York v. BP p.l.c., No. 18-2188 (2d Cir.); Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir.).
Opening Briefs Filed in First and Tenth Circuits Seeking Reversal of Remand Orders in Climate Change Cases Against Fossil Fuel Companies
Fossil fuel companies argued in briefs to the First and Tenth Circuit Courts of Appeal that they had properly removed cases brought by the State of Rhode Island and Colorado municipal governments in which the plaintiffs seek to hold the companies liable for the impacts of climate change. The companies’ opening briefs contended that the appellate courts had jurisdiction to review the entirety of the remand orders, not just the district courts’ conclusions that the federal officer removal statute did not provide a basis for removal. The companies further argued that there were multiple grounds for removal, including that the plaintiffs’ claims asserted injuries that were caused by nationwide (and worldwide) greenhouse gas emissions and therefore necessarily arose under federal, not state, common law. In addition, the companies argued that the presence of substantial, disputed federal questions invoked federal jurisdiction and that the cases were also subject to federal jurisdiction under the federal officer removal statute, the federal bankruptcy statute (Rhode Island case only), the Outer Continental Shelf Lands Act, federal enclave doctrine, and admiralty jurisdiction (Rhode Island case only), and due to complete preemption by the Clean Air Act. The U.S. Chamber of Commerce filed amicus briefs in the First and Tenth Circuit amplifying the companies’ arguments that federal common law provided a basis for federal jurisdiction and that the appellate court could review the entirety of the remand orders. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir. Nov 18, 2019); Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir. Nov. 20, 2019).
Opening Briefs in Ninth Circuit Said President Trump Had Authority to Reverse Obama’s Withdrawal of Arctic and Atlantic Areas from Oil and Gas Leasing
The federal government, State of Alaska, and American Petroleum Institute (API) filed briefs urging the Ninth Circuit Court of Appeals to reverse the District of Alaska’s decision vacating President Trump’s revocation of President Obama’s withdrawals of areas in the Arctic and Atlantic Oceans from oil and gas leasing. The federal brief argued that the plaintiffs had not satisfied threshold requirements for their suit, including standing, ripeness, a waiver of sovereign immunity, and the existence of a congressionally created cause of action. The federal brief also argued that the district court erred in concluding that President Trump’s action exceeded his authority under the Outer Continental Shelf Lands Act, which provides that the president “may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” Alaska also argued that the district court erred in determining that President Trump lacked authority, contending that the district court’s interpretation “distorts the meaning of the withdrawal provision of the Outer Continental Shelf Lands Act and effectively allows a single president to nullify the Act and vitiate the Act’s promises for the State of Alaska.” API’s brief also argued for a reading of the Act that gives the president “broad discretion over withdrawals,” including authority to modify previous exercises of that discretionary authority. League of Conservation Voters v. Trump, No. 19-35460 (9th Cir. Nov. 7 and 22, 2019).
Challenges to Withdrawal of California and Other States’ Authority to Set Vehicle Greenhouse Gas Emission Standards Proceeded in D.C. Circuit and District Courts
On November 15, 2019, 23 states, the District of Columbia, and the Cities of New York and Los Angeles filed a petition for review in the D.C. Circuit Court of Appeal challenging EPA’s withdrawal of the waiver allowing California to implement its greenhouse gas and zero emission vehicle program. The petition for review also included a protective petition challenging the National Highway Traffic Safety Administration’s (NHTSA’s) related preemption of state programs regulating tailpipe emissions of carbon dioxide and other greenhouse gases. The states and municipalities previously filed a separate challenge to the NHTSA action in federal district court, which they believe has exclusive original jurisdiction to review the NHTSA preemption regulation. San Francisco, three air quality management districts in California, a group of power company and utility petitioners, and the National Coalition for Advanced Transportation—a “coalition of companies and non-profit organizations that supports electric vehicle and other advanced transportation technologies and related infrastructure”—filed similar petitions for review. Advanced Energy Economy—a “not-for-profit business association dedicated to making energy secure, clean, and affordable”—also filed a petition challenging the EPA action. (The California air quality management districts also filed a complaint in federal district court in D.C. seeking a declaration that the NHTSA preemption rule is invalid.) In addition, 11 environmental and citizen groups—nine of which previously filed a protective petition challenging NHTSA’s action—filed a second petition for review challenging EPA’s withdrawal of the waiver. All of the D.C. Circuit proceedings were consolidated, with Union of Concerned Scientists v. National Highway Traffic Safety Administration as the lead case. The D.C. Circuit allowed groups representing auto manufacturers to intervene on behalf of the respondents. A group of 13 states, led by Ohio, has moved to intervene as respondents. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir.); South Coast Air Quality Management District v. Chao, No. 1:19-cv-03436 (D.D.C., filed Nov. 14, 2019).
On December 3, 2019, NHTSA and the other defendants filed their motion to dismiss the district court cases challenging the preemption regulation. NHTSA argued that the Court of Appeals had exclusive jurisdiction to review the regulations, including National Environmental Policy Act claims related to the preemption regulations. NHTSA also argued that the D.C. Circuit should resolve any question as to whether the National Highway Traffic Safety Administration acted outside its statutory authority in issuing the regulations. NHTSA said the district court should either dismiss the cases for lack of jurisdiction or transfer them to the D.C. Circuit. California v. Chao, No. 1:19-cv-02826 (D.D.C. Dec. 3, 2019).
Lawsuits Challenged Rule that Excluded Certain Lightbulbs from Scope of Energy Efficiency Standards
Two petitions for review were filed in the Second Circuit Court of Appeals to challenge the U.S. Department of Energy’s (DOE’s) withdrawal of a final rule adopted in January 2017 that expanded the types of lightbulbs subject to backstop energy conservation standards that would take effect on January 1, 2020. DOE said the 2017 rule included certain “general service incandescent lamps” as “general service lamps” (the category of lightbulbs subject to the backstop standard) in a manner that was not consistent with the Energy Policy and Conservation Act of 1975 as amended by the Energy Independence and Security Act of 2007. The first petition was filed by 15 states, New York City, and the District of Columbia. The second petition was filed by six organizations that included environmental, consumer, and public housing tenant groups. New York v. U.S. Department of Energy, No. 19-3652 (2d Cir., filed Nov. 4, 2019); Natural Resources Defense Council v. U.S. Department of Energy, No. 19-3658 (2d Cir., filed Nov. 4, 2019).
Exxon Said Massachusetts Climate Change Enforcement Action Belonged in Federal Court
On November 29, 2019, Exxon Mobil Corporation removed Massachusetts’s enforcement action alleging that Exxon misled investors and consumers regarding climate change risks and its products’ impacts on climate change to federal district court in Massachusetts. Exxon contended that the Massachusetts attorney general—in conjunction with “plaintiffs’ attorneys, climate activists, and special interests”—was engaged in a plan “to force a political and regulatory agenda that has not otherwise materialized through the legislative process.” Exxon said the enforcement action was not properly brought under state law and instead sought “to wade into complex federal statutory, regulatory, and constitutional issues and frameworks, and to substitute one state’s judgment for that of longstanding decisions by the federal government about national and international energy policy and environmental protection.” Exxon asserted that it was necessary for the case to be heard in federal court because the Commonwealth’s claims necessarily raised disputed and substantial issues concerning international climate change policy and the balance between environmental policy and economic development. In addition, Exxon argued that the case arose under federal common law because it was “inherently premised on interstate pollution that causes environmental harm in the form of global warming” and therefore implicated “uniquely federal interests and should be governed by federal common law.” In addition, Exxon said the case satisfied the requirements of the federal officer removal statute because federal officials directed Exxon to engage in the extraction and production of fossil fuels, the activities that “constitute the crux” of the State’s complaint. In addition, Exxon asserted that the case qualified for removal under the Class Action Fairness Act. Massachusetts v. Exxon Mobil Corp., No. 1:19-cv-12430 (D. Mass. Nov. 29, 2019).
Exxon Asked New York Trial Court to Reject Attorney General’s Withdrawal of Fraud Claims
After the New York attorney general’s office said during closing arguments in its enforcement action against Exxon Mobil Corporation (Exxon) that it was abandoning two fraud counts, Exxon filed a post-trial motion opposing the request to discontinue the claims. Exxon said the attorney general’s “last-minute gambit to avoid judicial repudiation of its claims should not be countenanced” because New York’s procedural rules bar unilateral discontinuance of claims after the close of evidence and because any exercise of discretion by the court to permit the attorney general to discontinue the claims would be inappropriate. Exxon argued that without “express acknowledgment” that the evidence did not show the intent or reliance necessary for the fraud claims, Exxon “can never repair the reputational damage … inflicted on the Company and its employees” or deter “copycat litigants” from pursuing identical claims. If the court allowed the attorney general to withdraw the fraud claims, the two remaining claims would be a Martin Act securities fraud cause of action and a related claim under New York’s Executive Law. Both sides filed post-trial memoranda and proposed findings of fact, with the attorney general arguing that the evidence proved that Exxon made “materially misleading representations to its investors concerning its use of an internal cost of carbon to account for the likelihood of increasingly stringent climate regulations,” while Exxon argued that the evidence showed that its disclosures were not materially misleading, particularly when viewed in the context of its financial statements, stock price, and analyst valuation and in light of investors’ expectations regarding the climate risk information provided in response to investor requests. Exxon said the evidence showed that “reasonable investors would not have considered the disclosures at issue here to have significantly altered the total mix of information available.” People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Nov. 18, 2019).
Lawsuit Filed Challenging EPA’s Failure to Comply with NEPA and Endangered Species Act Before Granting Aquifer Exemption
Center for Biological Diversity (CBD) filed a lawsuit in the federal district court for the Northern District of California challenging EPA’s granting of a Safe Drinking Water Act exemption that CBD alleged would allow the injection of oil and gas wastewater and other fluids in the Arroyo Grande Oil Field in San Luis Obispo County in California. CBD asserted that EPA failed to comply with NEPA and with the consultation requirements of Section 7 of the Endangered Species Act. With respect to NEPA, CBD said the approval of the aquifer exemption was “major Federal action that may significantly affect the quality of the human environment by, among other things, expanding injections and oil production that could “exacerbat[e] the climate crisis.” Center for Biological Diversity v. EPA, No. 3:19-cv-07664 (N.D. Cal., filed Nov. 21, 2019).
Restaurant Industry Group Challenged Berkeley Ban on Natural Gas Infrastructure in New Buildings
An association representing the restaurant industry in California challenged the City of Berkeley’s ordinance banning natural gas infrastructure in new buildings beginning on January 1, 2020. The plaintiff asserted that both federal law (the Energy Policy and Conservation Act) and state law (the California Building Standards Code and the California Energy Code) preempted the ordinance. The plaintiff alleged that “[w]ith millions of Californians sitting in the dark to avoid wildfires, and California’s energy grid under historic strain, banning the use of natural gas is irresponsible and does little to advance climate goals.” California Restaurant Association v. City of Berkeley, No. 3:19-cv-07668 (N.D. Cal., filed Nov. 21, 2019).
Lawsuit Said Federal Approval of Coal Mine Expansion Missed Opportunity to Plan for “Just Transition”
Five organizations challenged federal approval of expansion of the Rosebud coal strip-mine in Colstrip, Montana. In a complaint filed in federal district court in Montana, the plaintiffs cited a “warning” by the Montana Department of Health and Environmental Sciences in 1973 regarding economic reliance on “exploitation” of coal and alleged that in approving an expansion of the mine, the federal defendants had “refused to heed this warning and failed to use their considerable resources to outline what a just transition would look like in Colstrip.” The plaintiffs asserted violations of NEPA, including failure to evaluate the greenhouse gas pollution from combustion of the mined coal despite monetizing the economic benefits of the mine expansion. The complaint also asserted that the defendants failed to consider a reasonable range of alternatives, including a “middle-ground alternative that involved mining less coal.” The complaint said failure to consider such an alternative “precluded the agency from examining in detail any just transition alternative and increase[d] the likelihood that an abrupt ‘bust’ … will come to pass.” Montana Environmental Information Center v. Bernhardt, No. 1:19-cv-00130 (D. Mont., filed Nov. 18, 2019).
Conservation Groups Launched New Challenge to Bull Trout Recovery Plan
Three conservation groups filed a lawsuit in the federal district court for the District of Montana to challenge the Bull Trout Recovery Plan approved by the U.S. Fish and Wildlife Service in 2015. The plaintiffs previously challenged the plan in the District of Oregon, which dismissed the case without prejudice. The Ninth Circuit affirmed the dismissal, and in July 2019, the district court in Oregon denied a motion to amend the complaint but left open the possibility that the plaintiffs could file a new complaint. In the District of Montana complaint, the plaintiffs asserted that the recovery plan failed to incorporate objective and measurable recovery criteria and failed to incorporate recovery criteria that addressed Endangered Species Act delisting factors. The complaint alleged that “[c]limate change has, and will continue to affect bull trout habitat,” with changes including “warmer air and water temperatures and reduced stream flows” that “will reduce available bull trout habitat, stress existing populations and allow more heat tolerant non-native species to out-compete bull trout.” Save the Bull Trout v. Everson, No. 9:19-cv-00184 (D. Mont., filed Nov. 18, 2019).
Environmental Groups Cited Failure to Adequately Consider Wildlife Risk in Challenge to Land Management Project in Oregon
Four environmental groups challenged the U.S. Bureau of Land Management’s (BLM’s) approval of the first project prepared by the Lakeview District in the Klamath Falls Resource Area in Oregon under a 2016 resource management plan, which allowed additional timber harvest from BLM-managed lands in Oregon. The complaint, filed in federal court in Oregon, asserted that BLM failed to comply with NEPA. The plaintiffs also indicated that they planned to amend their complaint to add the U.S. Fish and Wildlife Service as a defendant and an Endangered Species Act claim. The complaint’s allegations included that BLM’s environmental assessment failed to consider the direct, indirect, and cumulative effects of the land management project on wildfire risk and also alleged that fire season in Oregon had grown “longer and more unpredictable” because “the effects of global climate change in the region is resulting in hotter, drier summers, and less snow accumulation during the winters.” The complaint also alleged that BLM’s consideration of impacts on northern spotted owls was inadequate. Klamath-Siskiyou Wildlands Center v. U.S. Bureau of Land Management, No. 1:19-cv-01810 (D. Or., filed Nov. 11, 2019).
Lawsuit Filed Challenging Decision Not to List Joshua Tree as Threatened Species
WildEarth Guardians filed a lawsuit in the federal district court for the Central District of California challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision not to list the Joshua tree as threatened under the Endangered Species Act. The complaint alleged that the Joshua tree—“an icon of the Southern California desert”—faced eradication by the end of the century due to climate change and “other often related and synergistic threats” such as prolonged droughts, increasing fire, and habitat loss. WildEarth Guardians said FWS failed to adequately analyze and impermissibly dismissed these significant threats to habitat and also erroneously discounted and failed to adequately consider how the lack of existing regulatory mechanisms to address climate change could impact the Joshua tree. In addition, the complaint asserted that FWS arbitrarily and capriciously found that Joshua trees were not threatened throughout a significant portion of their range and failed to use best available science by disregarding models that provided information on the future status of Joshua trees. WildEarth Guardians v. Bernhardt, No. 2:19-cv-09473 (C.D. Cal., filed Nov. 4, 2019).
Non-Profit Group Sought State Department Records on Treatment of Paris Agreement as Non-Treaty Agreement
A non-profit organization filed a Freedom of Information Act lawsuit against the U.S. Department of State seeking a response to requests for documents, memoranda, and emails related to the State Department’s “Circular 175” analysis for determining whether an international agreement is a treaty. The plaintiff alleged that the records it sought would “inform the public of the Department’s ‘working law’ leading it to declare that the 2015 ‘Paris climate agreement’ … was, for U.S. purposes, not a treaty, but a mere ‘agreement’, despite Paris requiring ever-tightening constraints every five years in perpetuity or until the U.S. withdraws, and despite Paris otherwise being a treaty according to its duration, its lineage, international practice and U.S. custom and practice.” The plaintiff said it had in its possession a document that purported to be the Circular 175 memorandum of law for the Paris Agreement. The plaintiff alleged that, if authentic, this document “represents a significant legal and political scandal” because it misstated the history of agreements that supported its conclusion that the Paris Agreement was not a treaty. The plaintiff asserted that documents it sought from the State Department were the “only means” that would allow the public to evaluate the propriety of entering and withdrawing from the Paris Agreement. Energy Policy Advocates v. U.S. Department of State, No. 1:19-cv-03307 (D.D.C., filed Nov. 3, 2019).
Environmental Defense Fund Sought Documents on White House Climate Science Review Panel
Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit seeking “records relating to a White House effort to discredit established findings that climate change poses a national security threat to the United States.” EDF alleged that it sent FOIA requests to the U.S. Department of the Interior, National Oceanic and Atmospheric Administration (NOAA), and National Aeronautics and Space Administration (NASA) after the Washington Post and other media outlets reported in February 2019 that the White House was planning to convene a panel to “target” recent federal climate change studies, including the Fourth National Climate Assessment, and that representatives of the Interior Department, NOAA, and NASA had been invited to a February 22, 2019 meeting concerning the panel. Environmental Defense Fund v. U.S. Department of the Interior, No. 1:19-cv-03286 (D.D.C., filed Oct. 31, 2019).
Lawsuit Filed Challenging Colorado ZEV Program
An organization that described its membership as including individuals, businesses, local government representatives, and organizations throughout Colorado filed a lawsuit in Colorado state court challenging the Colorado Air Quality Control Commission’s adoption of a modified version of California’s zero emission vehicle (ZEV) program. The organization asserted that the Commission lacked authority to adopt ZEV regulations due to the federal withdrawal of California’s waiver and that ZEV regulations were preempted due to NHTSA’s adoption of regulations preempting state regulation of greenhouse gas tailpipe emissions. In addition, the organization said Colorado’s ZEV regulations violated the Clean Air Act’s requirement that standards be identical to California’s. The organization also said the Commission violated the Colorado Air Pollution Prevention and Control Act and the Colorado Administrative Procedure Act. Freedom to Drive Inc. v. Colorado Air Quality Control Commission, No. 2019CV34156 (Colo. Dist. Ct., amended complaint filed Oct. 30, 2019).
HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.
NGOs Alleged Energy Company Failed to Consider Greenhouse Gases from Oil Project in Uganda
Six nongovernmental organizations have sued energy company Total in a French court over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project’s threats to human rights and the environment.
Under France’s Duty of Vigilance Law, French companies must identify and prevent risks to human rights and the environment that could occur as a result of their business practices. In June 2019, Friends of the Earth France, Survie, AFIEGO, CRED, NAPE/Friends of the Earth Uganda, and NAVODA sent Total a formal demand to revise its vigilance plan for the Tilenga Project, along with a report detailing alleged inadequacies in the vigilance plan. According to Friends of the Earth, the Tilenga Project includes plans to drill over 400 wells, extracting around 200,000 barrels of oil per day, and to construct a pipeline to transport the oil to Tanzania.
Although the claimants’ report focuses on human rights and conventional pollution, it also argues that Total’s vigilance plan does not properly account for the project’s potential life cycle greenhouse gas emissions. According to Friends of the Earth, after Total rejected the allegations following a three-month deadline, the complainants filed a proceeding with an “urgent applications” judge, who will hold a hearing on January 8, 2020. Friends of the Earth et al. v. Total (Naterre High Court).
