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 #130:
Divided Ninth Circuit Said Juliana Plaintiffs Lacked Standing to Press Constitutional Climate Claims Against Federal Government
In a split decision, the Ninth Circuit Court of Appeals ruled that young people and other plaintiffs asserting a claim against the federal government for infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life” did not have Article III standing. The Ninth Circuit therefore reversed the orders of the federal district court for the District of Oregon denying the government’s motions to dismiss and for summary judgment and judgment on the pleadings. The Ninth Circuit rejected the government’s argument that the plaintiffs’ constitutional claims had to be brought pursuant to the Administrative Procedure Act and agreed with the district court that the plaintiffs met the injury and causation requirements for Article III standing because at least some plaintiffs had alleged concrete and particularized injuries caused by fossil fuel carbon emissions that were increased by federal subsidies and leases. The Ninth Circuit found, however, that the plaintiffs had not established the redressability requirement for standing. The court said it was “skeptical” that even the first prong of redressability—that the relief sought be substantially likely to redress the plaintiffs’ injuries—was satisfied, noting that the plaintiffs conceded “that their requested relief will not alone solve global climate change.” The Ninth Circuit further concluded that even if the first prong was satisfied, the plaintiffs did not “surmount the remaining hurdle” of establishing that the relief they sought was within the power of Article III courts. The majority wrote that “[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular,” but said it was beyond judicial power “to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” The majority said it “reluctantly” concluded that “the plaintiffs’ case must be made to the political branches or to the electorate at large” and “[t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.” The dissenting judge would have held that the plaintiffs had standing and that they had asserted claims under the Constitution and presented sufficient evidence to proceed to a trial. The dissent contended that “a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.” Juliana v. United States, No. 18-36082 (9th Cir. Jan. 21, 2020).
DECISIONS AND SETTLEMENTS
D.C. Circuit Declined to Speed Up or Slow Down Challenges to Withdrawal of California Waiver and Preemption of State Authority to Regulate Vehicle Greenhouse Gas Emissions
In cases challenging EPA and the National Highway Traffic Safety Administration’s final rule withdrawing the waiver for California’s greenhouse gas and zero emissions vehicle programs and preempting other such state programs, the D.C. Circuit denied motions to expedite (by respondents and respondent-intervenors) and motions to hold the cases in abeyance (by petitioners). The court said the respondents and respondent-intervenors had not articulated “strongly compelling” reasons for expedition of the proceedings. The court directed the parties to submit a proposed format for briefing within 30 days. One reason the petitioners asked the D.C. Circuit to hold the cases in abeyance was to allow the federal district for the District of Columbia to resolve cases challenging NHTSA’s action that raise similar legal issues. The district court scheduled a hearing for April 16, 2020 to consider the defendants’ motion to dismiss or transfer those cases. In a separate order, the court granted the motions of states and American Fuel & Petrochemical Manufacturers to intervene in support of the respondents. Union of Concerned Scientists v. National Highway Traffic Safety Administration, Nos. 19-1230 et al. (D.C. Cir. Feb. 4, 2020); California v. Chao, No. 1:19-cv-02826 (D.D.C.).
Tenth Circuit Vacated Extensions of Small Refinery Exemptions from Renewable Fuel Mandates
The Tenth Circuit Court of Appeals vacated U.S. Environmental Protection Agency (EPA) orders granting three petitions for extensions of small refinery exemptions from renewable fuel standards. The Tenth Circuit found that a coalition of renewable fuels producers had standing to challenge the exemptions and that the court otherwise had jurisdiction over the case. The Tenth Circuit agreed with the coalition that EPA exceeded its statutory authority granting extensions when none of the three small refineries had received an initial exemption in the years preceding their petitions for extension. The court also found that EPA improperly relied on hardship caused by factors other than compliance with renewable fuel obligations as a basis for granting the extensions. Renewable Fuels Association v. EPA, No. 18-9533 (10th Cir. Jan. 24, 2020).
Fifth Circuit Vacated Denial of Petition to Delist Bird Facing Climate Change Threats
The Fifth Circuit Court of Appeals ruled that a U.S. Fish and Wildlife Service (FWS) decision denying a petition to delist the golden-cheeked warbler was arbitrary and capricious because the FWS applied “an inappropriately heightened” standard to its review of the delisting petition. The court said the FWS should not have required that the petition contain information that the FWS had not considered in its five-year review of the species that was sufficient to refute the five-year review’s conclusions that the warbler should remain listed. The Fifth Circuit’s opinion did not mention climate change, but climate change was one of the additional threats to the warbler that the FWS said the delisting petition failed to present information to address. General Land Office of the State of Texas v. U.S. Department of the Interior, No. 19-50178 (5th Cir. Jan. 15, 2020).
First Circuit Certified State Law Preemption Questions in Case Challenging Local Ordinance Prohibiting Crude Oil Loading at Harbor
In a pipeline operator’s appeal of a district court’s rejection of its challenge to a City of South Portland ordinance prohibiting bulk loading of crude oil onto vessels in the City’s harbor, the First Circuit Court of Appeals certified three questions to Maine’s high court concerning potential preemption of the ordinance by state law. The First Circuit said it would “sidestep the federal quagmire for the moment” in accordance with “well-settled constitutional avoidance doctrine.” Therefore, instead of addressing the domestic and foreign Commerce Clause and federal preemption claims raised by the operator, the First Circuit asked the Maine Law Court to weigh in on whether the Maine Department of Environmental Protection’s 2010 renewal license for the pipeline operator’s oil terminal facility was an “order” with preemptive effect under the Maine Coastal Conveyance Act (CCA), a statute that imposes a licensure requirement for oil transfers in and around state waters. If the renewal license was an order, the First Circuit asked the state court to address whether the CCA expressly preempted the ordinance challenged in this case. In addition, the First Circuit asked the Maine Law Court also to address whether the CCA impliedly preempted the local ordinance. Portland Pipe Line Corp. v. City of South Portland, No. 18-2118 (1st Cir. Jan. 10, 2020).
Federal Court Said “Threatened” Listing for Northern Long-Eared Bats Was Arbitrary and Capricious, Cited Failure to Explain Cumulative Effects
The federal district court for the District of Columbia ruled that the U.S. Fish and Wildlife Service (FWS) acted arbitrarily and capriciously when it designated the northern long-eared bat as “threatened” rather than “endangered” under the Endangered Species Act. The primary threat to northern long-eared bat survival is white-nose syndrome (WNS), which the court noted has been “responsible for unprecedented mortality of insectivorous bats in eastern North America.” The court agreed with the plaintiffs that FWS had acted arbitrarily and capriciously by disregarding “the cumulative effects that factors other than WNS may have on the species when explaining the rationale for the threatened determination.” Although the court did not mention climate change in its opinion, FWS mentioned climate change in the listing rule—as the plaintiffs noted in their briefing—as one of the factors that could have cumulative effects on the bats in concert with WNS. Although the court rejected the plaintiffs’ argument that FWS’s interpretation of “in danger of extinction” as “on the brink of extinction in the wild” was “unlawfully stringent,” the court concluded that FWS had not provided the plaintiffs and the public with an opportunity to comment on the application of this interpretation to the northern long-eared bat. (FWS developed the interpretation in a 2011 “Polar Bear Memo” that addressed the determination of threatened status for polar bears.) The court also said FWS unlawfully applied its “significant portion of its range” policy to the bat. Center for Biological Diversity v. Everson, No. 1:15-cv-00477 (D.D.C. Jan. 28, 2020).
Federal Court Dismissed “Frivolous” First Amendment Claims by Man Who Sought Distribution of Position Paper Referring to Climate Change as “Malicious Hoax”
The federal district court for the Eastern District of New York dismissed a lawsuit brought by a Brooklyn man, proceeding pro se, who alleged that the president of a community college violated the plaintiff’s First Amendment rights by failing to require the distribution of the plaintiff’s position paper explaining “why the political movement to reduce the use of fossil fuels is a malicious hoax” to students taking a climatology course. The court found that the plaintiff, who did not allege any legally cognizable relationship with the community college, had failed to allege Article III standing. The court also found that the plaintiff’s claim was “frivolous because there is no legal theory on which he can rely.” Roemer v. Williams, No. 19-cv-6855 (E.D.N.Y. Jan. 7, 2020).
Montana Federal Court Agreed to Consider Keystone XL-Specific Documents and 2012 Biological Opinion in Challenge to Authorization Under Nationwide Permit
The federal district court for the District of Montana granted plaintiffs’ motion to supplement the administrative record in a lawsuit challenging U.S Army Corps of Engineers (Corps) approval of the Keystone XL pipeline project under the reissued Nationwide Permit 12 (NWP 12) for pipeline and utility projects. The plaintiffs assert, among other arguments, that the environmental review for NWP 12 failed consider climate impacts. The court noted that the administrative record currently documented the Corps’ decision to reissue NWP 12 in 2017. The court said it would consider eight additional documents concerning applications and authorizations specifically for the Keystone XL pipeline under the reissued NWP 12 “for the limited purpose of understanding whether the Corps considered all relevant factors and complied with the [Administrative Procedure Act]’s requirement that an agency’s decision be neither arbitrary or capricious.” The court also agreed to consider a 2012 biological opinion for a prior version of NWP 12 for the limited purpose of considering whether the Corps failed to conduct programmatic consultation in connection with reissuance of NWP 12 in violation of the Endangered Species Act. The court said it would not use any of the documents “to judge the wisdom of the Corps’ actions or to question the Corps’ scientific analyses or conclusions.” Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044 (D. Mont. Jan. 8, 2020).
EPA Produced Documents Responding to FOIA Request Regarding Basis for Administrator’s Assertions About Climate Change Impacts
On January 23, 2020, Sierra Club issued a press release saying that documents produced by EPA in response to a Freedom of Information Act (FOIA) lawsuit seeking documents supporting EPA Administrator Andrew Wheeler’s assertions about climate change in a television interview revealed “that there was no factual basis” for Wheeler’s statement that “most of the threats from climate change are 50 to 75 years out.” In a joint status report filed with the district court for the District of Columbia, EPA indicated that it had completed its search for records responsive to Sierra Club’s request for records on which Wheeler relied. The parties said they were conferring as to how EPA would respond to the second part of Sierra Club’s request, which was for “records produced, commissioned, or otherwise obtained by EPA that support the conclusion that ‘most of the threats from climate change are 50 to 75 years out[.]’” The parties proposed to update the court in a joint status report on February 21. Sierra Club v. EPA, No. 1:19-cv-03018 (D.D.C.).
Federal Court Denied Motions to Dismiss Challenges to 2019 Presidential Permit for Keystone XL
The federal district court for the District of Montana denied motions to dismiss and for a preliminary injunction in litigation challenging a presidential permit issued in 2019 for a cross-border segment of the Keystone XL pipeline. The court found that the plaintiffs pled plausible claims under the Commerce Clause and Property Clause that President Trump exceeded his legal authority when he issued the permit, as well as claims that the 2019 permit violated a 2004 executive order that established a permitting process for cross-border pipelines. The court found that the plaintiffs had not demonstrated that a preliminary injunction was required to maintain the status quo but said the plaintiffs could renew their request at a later time if the pipeline developer’s activities interfered with the status quo. In a separate order, the court directed the parties to file supplemental briefs on eight issues related to the scope of authorized activities under the permit, separation of powers, and the developer’s authority to construct the pipeline without a permit if the president lacks authority to issue the cross-border permit. After the developer filed a status report on January 14, 2020 indicating that it planned to commence construction of the cross-border segment in April 2020 and would need to engage in pre-construction activities beginning in February 2020, the plaintiffs filed a renewed motion for a preliminary injunction. Briefing on that motion is scheduled to be completed on February 18, and the developer indicated it would not begin pre-construction activities before February 24. Briefing on summary judgment motions is to be completed by March 23, with a hearing scheduled for March 25 on any pending motions. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. Dec. 20, 2019).
Washington Supreme Court Invalidated Regulation of Indirect Greenhouse Gas Emissions
The Washington Supreme Court concluded that the Washington Clean Air Act did not grant the Department of Ecology authority to regulate indirect greenhouse gas emissions of businesses and utilities whose products ultimately generate such emissions. The court therefore invalidated regulations promulgated by Ecology to the extent the rules regulated “nonemitters” (i.e., petroleum product producers and importers and natural gas distributors) but allowed the regulations’ continued application to “actual emitters.” Ecology projected that the emissions from combustion of products sold by these “nonemitters” or “indirect emitters” accounted for approximately 74% of the emissions covered by the regulations. Association of Washington Business v. Washington State Department of Ecology, No. 95885-8 (Wash. Jan. 16, 2020).
California Appellate Court Rejected Challenges to CEQA Review for Master-Planned Community
The California Court of Appeal upheld approvals for a large master-planned community in Sacramento County that included residential and commercial uses and a university campus. The petitioners contended that the university was not likely to be built, and that the environmental impact report (EIR) prepared under the California Environmental Quality Act (CEQA) was therefore insufficient because it failed to analyze the project without the university and thereby understated impacts, including climate change impacts. The appellate court found that the EIR adequately discussed greenhouse gas impacts, noting that a mitigation measure required that any revised use of the land meet a specified per-capita greenhouse gas emissions threshold. The court also rejected a claim that Sacramento County was required to consider the project’s consistency with the sustainable communities strategy prepared by the Sacramento Area Council of Government pursuant to SB 375 to reduce vehicle miles traveled and related greenhouse gases. Environmental Council of Sacramento v. County of Sacramento, No. C076888 (Cal. Ct. App. Jan. 30, 2020).
California Court of Appeal Affirmed Dismissal of CEQA Greenhouse Gas Challenge to 34-Story Building in Los Angeles
The California Court of Appeal ruled that a petitioner failed to exhaust administrative remedies because it had not asserted during administrative proceedings its specific claim that the CEQA review for a 34-story building in Los Angeles did not properly assess the project’s compliance with greenhouse gas emission targets for 2030 and 2050 established by executive orders. The court said the petitioner’s comments on the draft and final EIRs concerning the analysis of greenhouse gas emissions were not sufficient to exhaust administrative remedies. The appellate court therefore affirmed the denial of the mandate petition with regard to greenhouse gas emissions. Golden State Environmental Justice Alliance v. City of Los Angeles, No. B294231 (Cal. Ct. App. Jan. 28, 2020).
Oregon Court Reinstated Clean Energy Ballot Initiatives
An Oregon Circuit Court set aside the Oregon Secretary of State’s decision to reject two clean energy ballot initiatives and allowed the measures to be processed and circulated for the November 2020 election. The court found that the measures—which would require Oregon to produce 100% of its electricity using renewable energy and carbon free sources by 2045 and in doing so to meet minimum labor standards and ensure that all customers and communities benefit equally—did not violate the Oregon Constitution’s “single-subject” requirement for initiative petitions. The court reportedly said the labor and equity provisions could be encompassed within a single subject with the clean energy mandates. Richardson v. Clarno, No. 20CV01920 (Or. Cir. Ct. Jan. 16, 2020).
NEW CASES, MOTIONS, AND NOTICES
Ninth Circuit Heard Oral Argument in California Local Government Cases; Fossil Fuel Companies Said Juliana Decision Supported Their Position
The Ninth Circuit Court of Appeals heard oral arguments on February 5, 2020 in the appeals in California local governments’ climate change cases against fossil fuel companies. In one set of appeals, the companies seek reversal of an order remanding the cases to state court. In the other appeal, San Francisco and Oakland appeal the dismissal of their lawsuits, as well as the denial of their motion to remand. Judges Ikuta, Christen, and Lee comprise the panel considering the appeals. On January 15, the court granted a motion by the United States to participate in the oral argument as amicus curiae in support of affirmance of the dismissal of San Francisco and Oakland’s case.
On January 29, Chevron Corporation submitted letters to the First, Fourth, and Ninth Circuit Courts of Appeal asserting that the Ninth Circuit’s decision in Juliana v. United States supported the companies’ argument that the climate change claims asserted by local and state governments against the companies “have their source in federal law and therefore belong in federal court.”
Other developments in the local government cases against fossil fuel companies included the completion of briefing in fossil fuel companies’ Tenth Circuit appeal of the remand of Boulder and San Miguel Counties and the City of Boulder’s lawsuit. The defendants filed their reply brief on January 22, 2020, reiterating their arguments that the Tenth Circuit should review the entire remand order, not just the district court’s determination that removal was not proper under the federal-officer removal statute, and that there were multiple valid grounds for removal. Fossil fuel companies also filed their reply brief in their appeal of the remand order in Rhode Island’s case. 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.); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir.); Mayor & City of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir.); Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
Montana and Wyoming Asked Supreme Court to Consider Claims That Washington Impermissibly Blocked Access for Coal Shipments
Montana and Wyoming filed a motion for leave to file a bill of complaint in the U.S. Supreme Court asserting that the State of Washington had denied access to its ports for shipments of Montana and Wyoming’s coal in violation of the dormant Commerce Clause and the Foreign Commerce Clause. Montana and Wyoming alleged that the Washington’s denial of a Section 401 certification for the Millennium Bulk Terminal was based on Washington officials’ “discriminatory favoritism of Washington products over Montana and Wyoming coal”; the Washington governor’s political opposition to coal; and “perceived extra-territorial environmental impacts of coal combustion in foreign markets.” The two states argued that the “seriousness and dignity” of their claims warranted exercise of the Court’s original jurisdiction and that they had no other forum in which to pursue their claims. Montana v. Washington, No. 22O152 (U.S., filed Jan. 24, 2020).
Briefing in Challenges to Regulations for Existing Power Plants to Be Complete by End of July
On February 3, 2020, the D.C. Circuit Court of Appeals set the briefing schedule for cases challenging EPA’s repeal of the Obama administration’s Clean Power Plan and the promulgation of the Affordable Clean Energy rule to regulate greenhouse gas emissions from existing coal-fired power plants. Petitioners’ opening briefs are due March 27, respondents’ brief is due May 26, briefs for respondent-intervenors are due June 25, and reply briefs are due July 9, with final briefs to be filed on July 30. American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir.).
Plaintiffs Alleged Inadequate Consideration of Climate Change in Challenge to Permit for Petrochemical Plant
Four environmental organizations filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Army Corps of Engineers’ issue of a Section 404 permit under the Clean Water Act for a new petrochemical plant on the Mississippi River in Louisiana. The plaintiffs asserted that the Corps violated the National Environmental Policy Act by relying on “deeply flawed and inadequate” environmental assessment to conclude that the project would not have a significant environmental effect. They alleged that the project—which would produce plastic chemicals and resins—would, among other impacts, emit 13.6 million tons per year of greenhouse gas emissions, “the equivalent annual emissions of three coal-fired power plants.” The complaint further alleged that this figure “does not account for emissions from the power transmitted to the facility or for emissions from the entire lifecycle of plastics production.” The plaintiffs contended that the project’s greenhouse gas emissions would “contribute to the climate crisis and exacerbate Louisiana’s susceptibility to flooding, land loss, and storm surges” and that the destruction of wetlands for the project “would remove some of the natural buffers against these impacts.” The plaintiffs also asserted that the Corps violated the Clean Water Act and the Rivers and Harbors Act by overlooking “major consequences” of the facility in finding the project to be in the public interest and by failing to adopt the least environmentally damaging alternative. The complaint also asserted claims under the National Historic Preservation Act and the Administrative Procedure Act. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 1:20-cv-00103 (D.D.C., filed Jan. 15, 2020).
Lawsuits Challenged Supplemental EIS for Hydraulic Fracturing on Federal Lands in California
California and environmental groups filed lawsuits in the federal district court for the Central District of California challenging the supplemental environmental impact statement (SEIS) prepared by the U.S. Bureau of Land Management (BLM) for a resource management plan allowing hydraulic fracturing on 400,000 acres of public lands and 1.2 million acres of federal mineral estate in California. BLM prepared the SEIS to address issues identified by the court in earlier cases. In both complaints, the plaintiffs alleged that the SEIS’s consideration of climate change impacts was inadequate. California alleged that the SEIS failed to consider conflicts with state plans and policies, including California’s efforts to reduce greenhouse gas emissions and fossil fuel consumption. The environmental groups alleged that the SEIS relied on “arbitrary and unsupported” predictions of the number of wells that would be fracked and underestimated climate and other impacts. California v. Stout, No. 2:20-cv-00504 (C.D. Cal., filed Jan. 17, 2020); Center for Biological Diversity v. U.S. Bureau of Land Management, No. 2:20-cv-00371 (C.D. Cal., filed Jan. 14, 2020).
Berkeley Moved to Dismiss Restaurant Association’s Challenge to Its Natural Gas Ordinance; Lawsuit Filed in State Court to Challenge City of Santa Rosa Natural Gas Ban for New Homes
The City of Berkeley moved to dismiss a lawsuit challenging the City’s ordinance that instituted a progressive ban on natural gas connections in new buildings. The City argued that there was no subject matter jurisdiction, that the California Restaurant Association lacked standing to bring the suit, that the suit was unripe, and that state law claims were barred by the doctrine of primary jurisdiction. In addition, Berkeley argued that the complaint failed to state a claim that the Energy Policy and Conservation Act preempted the ordinance. Berkeley also contended that the case should be dismissed because state law did not preempt the ordinance and the ordinance did not conflict with state energy efficiency standards. California Restaurant Association v. City of Berkeley, No. 4:19-cv-07668 (N.D. Cal. Jan. 13, 2020).
It was reported in January that a developer had filed a lawsuit in California Superior Court challenging the City of Santa Rosa’s law requiring appliances in new homes of three stories or less to use electricity rather than natural gas. The law reportedly alleged that the City failed to comply with CEQA in enacting the ban, which must also be approved by state regulators. The developer previously filed a lawsuit challenging a natural gas ban in the Town of Windsor. Gallaher v. City of Santa Rosa, No. SCV265711 (Cal. Super. Ct., filed Dec. 17, 2020).
New Lawsuit Challenging Oil and Gas Leases in Western States Alleged “Fundamental Disconnect” Between Climate Crisis and Federal Leasing Program; Plaintiffs in Earlier Case Said BLM’s New Greenhouse Gas Analysis Was Arbitrary and Capricious
WildEarth Guardians and Physicians for Social Responsibility filed a complaint in the federal district court for the District of Columbia challenging BLM’s approval of 2,067 oil and gas leases covering almost two million acres of public lands across five states—Colorado, Montana, New Mexico, Utah, and Wyoming. The plaintiffs alleged that BLM violated the National Environmental Policy Act by failing to consider “the direct, indirect, and cumulative impacts of oil and gas leasing on our climate.” They contended that BLM’s process for reviewing the leases was at odds with the court’s decision in another caseinvolving BLM’s authorization of 282 leases and that the case showed the “fundamental disconnect between the ongoing climate crisis and the federal oil and gas leasing program.” WildEarth Guardians v. Bernhardt, No. 1:20-cv-00056 (D.D.C., filed Jan. 9, 2020).
In the earlier case challenging BLM’s authorization of 282 leases, the plaintiffs filed a motion for summary judgment after remand, arguing that BLM “threw together an error-riddled Supplemental Environmental Assessment” (Supplemental EA) in response to the court’s finding of deficiencies in its original analysis of greenhouse gas emissions. The plaintiffs asked the court to find BLM’s re-approval of the leases arbitrary and capricious. They said BLM should have considered total, cumulative emissions, as opposed to annual emission rates; that BLM underestimated direct and indirect emission rates “through mathematical sleight of hand”; that BLM failed to assess reasonably foreseeable future emissions from regional and national BLM actions; and that “BLM’s carbon budget analysis was inconsistent, irrational, and arbitrary.” In addition, the plaintiffs argued that BLM’s rationale for finding the leases’ greenhouse gas emissions to be insignificant was inconsistent with statements in the Supplemental EA and that the finding of no significant impact failed to assess whether the leases were related to other actions with cumulatively significant impacts. WildEarth Guardians v. Bernhardt, No. 1:16-cv-01724 (D.D.C. Jan. 6, 2020).
Lawsuit Sought Critical Habitat Designation for Green Sea Turtles Whose Habitat Is Threatened by Sea Level Rise and Other Factors
Three conservation groups filed a lawsuit in the federal district court for the District of Columbia seeking to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to designate critical habitat for distinct population segments of the green sea turtle. The complaint alleged that turtles are protected under the Endangered Species Act “because they are threatened by habitat loss from coastal development, beach armoring, and sea level rise; disorientation of hatchlings by beachfront lighting; marine pollution; watercraft strikes; and as bycatch in fishing operations.” The plaintiffs contended that the turtle would remain at risk until the Services fulfilled their statutory obligation to designate critical habitat. Center for Biological Diversity v. Bernhardt, No. 1:20-cv-00036 (D.D.C., filed Jan. 8, 2020).
Nonprofit Group and Its Board Member Sought to Unseal Records in Attorney General’s Suit Against Exxon
In January 2020, the nonprofit Energy Policy Advocates and an individual board member of the group asked the New York Supreme Court to permit them to intervene in the New York attorney general’s unsuccessful case against Exxon Mobil Corporation for the purpose of moving to unseal judicial documents that the proposed intervenors said were “important to a vital public policy debate over policy and the increasing employment of state attorneys general at the request of private interests and to assist private ends.” The proposed intervenors’ papers described Energy Policy Advocates as a tax-exempt nonprofit “which conducts and publishes its public policy research using the federal Freedom of Information Act and similar state laws” and the individual as a radio and internet journalist who is a board member of the organization. An attorney whose communications with the attorney general’s office the proposed intervenors seek to unseal moved to appear as amicus curiae to oppose intervention. The proposed intervenors had argued that “[t]he public deserves to see documentation of the effort by a tort lawyer to help his tort campaign against by enlisting the New York Office of Attorney General, successfully, if in pursuit of terribly unsuccessful prosecution at a cost, clearly, of millions of taxpayer dollars.” The attorney general opposed intervention. People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct.).
Lawsuit Said County Should Have Required More Greenhouse Gas Mitigation Measures for Approved Development
The Center for Biological Diversity filed a lawsuit in California Superior Court challenging Kern County’s approvals of a project that would include 12,000 dwelling units, up to 5.1 million square feet of commercial land uses, and a development footprint of 4,643 acres. The petition asserted that the County failed to adequately analyze or mitigate the project’s greenhouse gas impacts. The petitioner contended that the County should have required the project to be “zero net energy” and should have required distributed or rooftop solar installations. Center for Biological Diversity v. County of Kern, No. BCV-20-100080 (Cal. Super. Ct., filed Jan. 10, 2020).
Lawsuit Filed Challenging Solar Power Facility in California
A California community services district and a neighborhood group filed a lawsuit challenging San Bernardino County authorizations for a solar power generating facility across 3,500 acres. The petitioner-plaintiffs alleged that the EIR for the project failed to adequately analyze and mitigate the project’s environmental impacts, including long-term greenhouse gas emissions and the project’s “greenhouse gas impacts including on the desert ecosystem carbon sequestration processes.” They asserted the project was inconsistent with California’s long-term efforts to mitigate greenhouse gas emissions. Newberry Community Services District v. County of San Bernardino, No. CIV DS 2000745 (Cal. Super. Ct., filed Jan. 9, 2020).
HERE ARE RECENT ADDITIONs TO THE NON-U.S. CLIMATE LITIGATION CHART.
Supreme Court of Mexico Rejected Ethanol Fuel Content Hike, Citing Precautionary Principle and Right to a Healthy Environment
On January 22, 2020, the Supreme Court of Mexico invalidated an agency action that would have allowed higher ethanol content in gasoline. The Court concluded that the precautionary principle and the right to a healthy environment require consideration of ethanol’s environmental risks, including its contributions to greenhouse gas emissions.
In 2017 Mexico’s Energy Regulatory Commission modified a fuel rule to allow a maximum of 10% ethanol in gasoline sales, up from 5.8%. The modified rule would have applied nationwide, with exceptions for Mexico’s three largest cities, where air pollution is of particular concern. The Supreme Court invalidated the measure, citing the potential for higher levels of pollution with a greater maximum ethanol content, including the potential for increased greenhouse gas emissions. The Court recognized that the measure could lower the cost of fuel but determined that economic considerations must be balanced against the right to a healthy environment and Mexico’s commitment to reduce greenhouse gas emissions as a signatory of the Paris Agreement. The Court concluded that a measure carrying significant environmental risks must be evaluated using the best scientific information available and should not be enacted without public participation. In reaching this conclusion, the Court cited the right to consultation in environmental matters as well as the precautionary principle. Ruling on Modification to Ethanol Fuel Rule, 610/2019 (Supreme Court of Mexico).
French Local Authorities and Nonprofits Sued Oil Major for Failure to Account for, Mitigate Greenhouse Gas Emissions
On January 28, 2020, French organizations Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires along with more than a dozen French local governments filed a complaint in the Nanterre District Court against oil major Total. According to the plaintiffs, their complaint relies on the French Law of Vigilance, which requires a company to produce a “plan of vigilance” that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment, and public health that could result directly or indirectly from the operations of the company and of the companies it controls.
The plaintiffs seek a court order forcing Total to issue a new vigilance plan that analyzes the risks related to global warming beyond 1.5 degrees Celsius as well as Total’s contributions to those risks, and that aligns its activities with a greenhouse gas emissions reduction pathway compatible with limiting warming to 1.5 degrees Celsius. Notre Affaire Notre Affaire à Tous and Others v. Total(Nanterre District Court).
Norwegian Appellate Court Found Right to Healthy Environment Requires Consideration of Greenhouse Gas, But Declined to Block Oil and Gas Leases
In October 2016, Greenpeace Nordic and Nature and Youth sought a declaratory judgment from the Oslo District Court that Norway’s Ministry of Petroleum and Energy violated the Norwegian Constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. Their complaint relied on article 112 of the Norwegian Constitution, which establishes a “right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.” The Oslo District Court ruled in favor of the Norwegian Government on January 4, 2018, reasoning that, “[e]missions of CO2 abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112.”
On January 22, 2020, following an appeal by the plaintiffs, the Borgarting Court of Appeal affirmed the District Court’s decision ruling that the oil and gas licenses are valid. According to a press release issued by the Court, it parted company with the District Court in holding that article 112 of the Norwegian Constitution applies to the environmental damages alleged — including emissions of greenhouse gases from the combustion of oil and gas after export — and in concluding further that emissions resulting from the relevant decision cannot be considered in isolation. However, the Court of Appeal held that the threshold for a violation of article 112 is high, and courts should exercise restraint in reviewing decisions by the political branches. The Court held that the appellants could not show a violation of article 112 in this instance, particularly because it is uncertain whether and to what extent to the licenses will lead to increased greenhouse gas emissions. Greenpeace Nordic Association and Nature and Youth v. Ministry of Petroleum and Energy, 18-060499ASD-BORG/03 (Borgarting Court of Appeal).
U.S. Tribes Filed UN Human Rights Complaint on Climate-Forced Displacement
On January 16, 2020, five U.S. Indian tribes submitted a complaint to the United Nations alleging that the U.S. government has violated their human rights in failing to address climate displacement. The complaint calls on several Special Rapporteurs to intervene and investigate, and to recommend that the U.S. government and the states of Alaska and Louisiana take steps to address displacement caused by climate change.
The Alaska Institute for Justice submitted the complaint on behalf of five tribes located in Louisiana and Alaska: Point-au-Chien Indian Tribe, Grand Caillou/Dulac Band of Biloxi-Citimacha-Cochtow Tribe, the Atakapa-Ishak Chawasha Tribe of the Grand Bayou Indian Village, and the Native Village of Kivalina. The complaint is directed to the Special Rapporteurs on the Human Rights of Internally Displaced Persons and the Rights of Indigenous Peoples, among others. The complainants assert that they are being forcibly displaced from their ancestral lands as a result of climate change, and that the U.S. government has failed to protect them despite knowing for decades that climate change threatens coastal communities. They further contend that the U.S. government’s inaction has gone beyond basic negligence where the government has failed to engage, consult, acknowledge and promote the self-determination of the tribes as they develop adaptation strategies, including resettlement. The complaint also alleges that by failing to federally recognize the named Louisiana tribes, the U.S. government is further hamstringing efforts to mitigate and adapt to the effects of climate change.
The complaint asks the Special Rapporteurs to recommend that the U.S. government recognize the self-determination and inherent sovereignty of all the tribes; grant federal recognition to those that have not yet received it; and take certain steps to protect the tribes’ land and cultural heritage, among other things. The complaint further asks the Special Rapporteurs to recommend that the Louisiana state government allocate funding to the named Louisiana tribes to respond to the humanitarian crisis caused by climate change; require the oil and gas industry to give advanced notice of their intent to conduct operations that may pose a risk to tribal cultural heritage, land, and waters; and hold oil and gas corporations responsible for damages caused to the Louisiana coast, among other things. The complaint also seeks a recommendation that the Alaska state government allocate funding to implement the tribal-led relocation process for Kivalina, and that all three governments develop relocation institutional frameworks.
The complainants’ claims arise out of the Guiding Principles on Internal Displacement, the Pinheiro Principles on Housing and Property Restitution, and the Peninsula Principles on human rights that must be enforced when people are forcibly displaced because of climate change. The complaint also cites the right to self-determination of all peoples, the Charter of the UN, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Vienna Declaration and Programme of Action, and Article 3 of the Declaration on the Rights of Indigenous Peoples. Rights of Indigenous People in Addressing Climate-Forced Displacement (UN Special Rapporteurs).
UN Human Rights Committee Ruled Countries May Not Return Climate Migrants if Climate Impacts Worsen
On January 7, 2020, the UN Human Rights Committee affirmed New Zealand’s decision to deport a Kiribati resident, despite his claims that sea level rise in Kiribati posed a real risk to his right to life. In doing so, however, the Committee indicated that if climate impacts worsen in the future, countries may not return climate migrants to their home states where their right to life is threatened.
In 2013, Ioene Teitiota, a Kiribati citizen, sought asylum in New Zealand, asserting that the effects of climate change and sea level rise forced him to migrate. The Immigration and Protection Tribunal denied his claim in a decision affirmed by the New Zealand High Court and the Supreme Court of New Zealand. On September 15, 2015, Teitiota filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Social and Political Rights. He argued that sea level rise in Kiribati caused by climate change has created a scarcity of habitable space, resulting in violent land disputes, and environmental degradation including saltwater contamination of the freshwater supply. The Committee ruled that the communication was admissible because Teitiota had sufficiently substantiated his claim that when he was removed to Kiribati he faced an imminent risk of being arbitrarily deprived of his life due to the effects of sea level rise. The Committee reasoned that the requirement of imminence attaches to the decision to remove the individual, and not to the anticipated harm in the receiving state, although the latter is relevant in assessing the real risk faced by the individual.
The Committee dismissed the communication on the merits, however, explaining that it could only reverse a States Party’s determination that was clearly arbitrary or amounted to a manifest error or a denial of justice. The Committee reasoned that the risk of an arbitrary deprivation of life must be personal, rather than rooted in the general conditions of the receiving state, except in the most extreme cases. The Committee recognized that environmental degradation and climate change constitute serious threats to the ability of present and future generations to enjoy the right to life, but upheld New Zealand’s determination that Teitiota had not provided evidence that he faced any real chance of being harmed in a land dispute, would be unable to grow food or access potable water, or otherwise faced life-threatening conditions.
The Committee did find, however, that “given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.” Accepting Teitiota’s claim that sea level rise is likely to render Kiribati uninhabitable, the Committee explained that given the 10-15 year timeframe, there was sufficient time for intervening acts by the government of Kiribati to protect its citizens.
Two Committee members dissented. One attacked the majority’s reliance on the lack of evidence that Teitiota’s family lacked potable water, explaining that “potable” does not equate to “safe drinking water.” The second argued that the Committee placed an unreasonable burden of proof on Teitiota to establish a real risk of danger of arbitrary deprivation of life. UN Human Rights Committee Views Adopted on Teitiota Communication, CCPR/C/127/D/2728/2016 (UN Human Rights Committee).
Swiss Court Ruled that Imminent Danger of Climate Crisis Justified Protesters’ Actions
A Swiss court ruled in favor of a dozen climate activists who occupied a Credit Suisse branch to protest the bank’s fossil fuel investments. The judge concluded that because of the imminent danger of the climate crisis, the protesters’ actions were necessary and proportional.
In November 2018, twelve climate activists wearing white sports clothes and wigs staged a tennis match at a Lausanne branch of Credit Suisse to protest the bank’s fossil fuel investments and pressure tennis star Roger Federer to end his sponsorship arrangement with the institution. According to news reports, the protesters were charged with trespassing and fined 21,600 Swiss Francs ($22,000). On appeal, Judge Philippe Colelough concluded that the activists had acted proportionately and waived the fine, which will now be paid by the state, according to press reports.
“Because of the insufficient measures taken to date in Switzerland, whether they be economic or political, the average warming will not diminish nor even stabilize, it will increase,” the judge explained. “In view of this, the tribunal considers that the imminence of danger is established…. The act for which they were incriminated was a necessary and proportional means to achieve the goal they sought.” Credit Suisse Protesters Trial (Lausanne District Court).
Peruvian Youth Filed Action Against Government Demanding Action on Climate Change, Amazon Rainforest
On December 16, 2019, a group of Peruvian youth filed suit against Peru, alleging that the government has taken insufficient action to address climate change.
Seven plaintiffs, represented by their parents, filed a complaint against the Peruvian state for its alleged failure to adequately halt deforestation in the Amazon rainforest by adopting concrete and effective measures under the National Policy on the Environment and the National Policy on Forests and Forest Wildlife. The complaint focuses on deforestation in five Amazonian regions: Loreto, Ucayali, Madre de Dios, Amazonas and San Martin. The plaintiffs argue that the situation is worse for Peruvians born between 2005 and 2011, whose futures are severely compromised due to the climate crisis. They assert that their fundamental right to enjoy a healthy environment has been violated, along with their rights to life, water, and health.
The plaintiffs’ claims arise under article 2.22 of the Peruvian constitution; article 12.2 of the International Pact of Economic, Social and Cultural Rights; article 11 of the Additional Protocol of the American Convention on Human Rights; article 3 of the Code of Children and Adolescents; article I of Law no. 28611, General Law of the Environment; and article 15 of the Interamerican Democratic Charter.
The complaint seeks an order directing the President, the Ministry of Environment, the Ministry of Agriculture and Irrigation, and the Ministry of Finance to create concrete goals and objectives to reduce net deforestation in the Peruvian Amazon to zero by 2025; an order directing the regional governments of Loreto, Ucayali, Madre de Dios, Amazonas and San Martin to develop regional action plans to reduce net deforestation to zero by 2025, including climate change adaptation and mitigation measures; an order requiring the Ministry of Agriculture and Irrigation to suspend granting deforestation permits on public lands in the five regions at issue until the national and regional plans have been created; recognition of the Peruvian Amazon as an entity subject to the rights of protection, conservation, maintenance and restoration; and a declaration that the situation of environmental conservation in the Peruvian Amazon is unconstitutional. Álvarez and others v. Peru (Superior Court of Lima).