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 # 131.
FEATURED CASE
Montana High Court Said Necessity Defense Was Not Available to Climate Change Protestor
The Montana Supreme Court upheld a trial court decision precluding a climate change activist from presenting a common law necessity defense. The activist—who cut a chain to gain access to a pipeline facility and then turned off the flow of oil—was convicted of misdemeanor criminal trespass and felony criminal mischief. The Montana Supreme Court found that the necessity defense was not available to the defendant for his “indirect civil disobedience” (i.e., conduct involving violation of a law that was not itself the object of protest). The Supreme Court also noted that the trial court had found a lack of immediacy in the harm. The Supreme Court also rejected the application of out-of-state authority allowing the necessity defense in a similar context and was not persuaded by the defendant’s contention that the trial court had unfairly raised the necessity issue at trial by questioning the defendant about his “perception of the immediacy of the climate problem.” State v. Higgins, No. DA 18-0233 (Mont. Mar. 3, 2020).
DECISIONS AND SETTLEMENTS
In Colorado Coal Lease Case, Tenth Circuit Vacated Roadless Rule Exception but Upheld Forest Service and BLM Decision to Eliminate Methane Flaring Alternative
The Tenth Circuit Court of Appeals agreed with a district court that the U.S. Forest Service and U.S. Bureau of Land Management (BLM) did not have to conduct a detailed study of a “Methane Flaring Alternative” in an environmental impact statement (EIS) for coal lease modifications. The Tenth Circuit concluded that the agencies had taken a sufficiently hard look at the alternative, given the lack of information available at the time concerning flaring’s feasibility and impacts and given uncertainty regarding whether the Mine Safety and Health Administration would approve methane flaring at an active coal mine. But the appellate court held that in its EIS for a Colorado Roadless Rule exception, the Forest Service arbitrarily and capriciously excluded an alternative that would foreclose coal mining in one area where there were no active mines. The court therefore vacated the entire exception. High Country Conservation Advocates v. U.S. Forest Service, No. 18-1374 (10th Cir. Mar. 2, 2020).
In a related case involving a challenge to the Office of Surface Mining Reclamation and Enforcement’s (OSM’s) environmental review of a mining plan modification for an active coal mine in the roadless area, the federal government moved to dismiss with prejudice its appeal of a District of Colorado order that enjoined a mining plan modification for the mine until further analysis was conducted regarding a methane flaring alternative and other issues. The Tenth Circuit dismissed the appeal on February 27. On December 13, 2019, OSM published a draft environmental assessment and finding of no significant impact (FONSI) in response to the district court’s order. The FONSI concluded that the mining plan modification—which would allow continuation of mining operations for approximately 10 million tons of recoverable coal and include a voluntary methane flaring measure—would not have a significant impact. The comment period closed on December 23. WildEarth Guardians v. Bernhardt, No. 20-1011 (10th Cir. Feb. 27, 2020). Editor’s note: this coal mine is part of the joint venture between Arch Coal and Peabody that the Federal Trade Commission challenged on February 27.
Challenge to EPA and NHTSA’s “One National Program” for Vehicle Emission Standards to Proceed Initially in D.C. Circuit
The federal district court for the District of Columbia stayed the cases challenging the National Highway Traffic Safety Administration (NHTSA) regulation preempting state regulation of greenhouse gas emissions from vehicles. The NHTSA regulation was one component of the final rule promulgated by NHTSA and the U.S. Environmental Protection Agency (EPA) entitled “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program.” The other two components were EPA’s withdrawal of the waiver for California’s greenhouse gas and zero-emission vehicle programs and EPA’s determination that other states could not adopt California’s greenhouse gas standards pursuant to Section 177 of the Clean Air Act. The plaintiffs—states, California air quality management districts, and non-governmental organizations—challenged NHTSA’s preemption rule in district court while also filing protective petitions for review in the D.C. Circuit. The district court issued its order staying their cases after the D.C. Circuit denied the petitioners’ motions to stay the D.C. Circuit proceedings pending the outcome of the district court litigation (and administrative requests for reconsideration). The cases are staying pending resolution of the D.C. Circuit litigation. California v. Chao, Nos. 1:19-cv-02826 et al. (D.D.C. Feb. 11, 2020).
Subsequently, in the D.C. Circuit, petitioners filed a motion seeking to require EPA to complete its administrative record by including public comments and supporting documents submitted after the comment period closed, including a scientific study published after the comment period closed that the petitioners said showed that greenhouse gases emitted from California sources have direct and localized impacts in the state. The petitioners argued that EPA had agreed to consider comments submitted after the comment closing date unless they were received too late “to practicably consider.” The petitioners noted that NHTSA made the identical commitment and included all comments and supporting documents received prior to final action. The petitioners also said EPA had “selectively considered after-arising evidence it deemed favorable.” Union of Concerned Scientists v. National Highway Traffic Safety Administration, Nos. 19-1230 et al. (D.C. Cir. motion to complete record Feb. 27, 2020).
Utah Federal Court Dismissed Challenges to Oil and Gas Leases for Which BLM Was Conducting Additional Environmental Analyses
After BLM suspended oil and gas leases in southeastern Utah that were sold in March and December 2018 so that it could conduct additional environmental analysis, the federal district court for the District of Utah dismissed two consolidated lawsuits challenging the leases. The court found that the plaintiffs’ claims were moot because no leasing operations or ground-disturbing activity would occur during the suspensions and BLM would issue new leasing decisions arising from a different regulatory context. The court further found that the mootness exception for voluntary cessation of activity did not apply because the alleged violations could not reasonably be expected to start up again and events had “completely and irrevocably eradicated the effects of the alleged violations.” Friends of Cedar Mesa v. U.S. Department of the Interior, No. 4:19-cv-00013 (D. Utah. Mar. 2, 2020).
Idaho Federal Court Set Aside Procedures that Limited Public Participation for Oil and Gas Sales in Sage-Grouse Habitat
A federal court in Idaho set aside procedures issued in 2018 by BLM as they applied to oil and gas leasing in Greater Sage-Grouse Habitat Management Areas. The court also set aside certain oil and gas lease sales that BLM approved in 2018. The court held that BLM’s Instruction Memorandum (IM) 2018-034, which included the procedures, was not properly adopted because notice-and-comment rulemaking procedures should have been followed and that IM 2018-034 itself improperly constrained public participation in oil and gas leasing decisions in violation of the Federal Land Policy and Management Act and the National Environmental Policy Act (NEPA). The court therefore found that issuance of IM 2018-034 was arbitrary and capricious. The court’s decision did not address the plaintiffs’ claim that BLM violated NEPA by failing to address likely climate change impacts to the sage-grouse and its habitat.Western Watersheds Project v. Zinke, No. 1:18-cv-00187 (D. Idaho Feb. 27, 2020).
Fisheries Service Agreed to Make Critical Habitat Determinations for Coral Species
Pursuant to a settlement agreement filed in federal district court in the District of Columbia, the National Marine Fisheries Service (NMFS) and other federal defendants agreed to make proposed determinations concerning designation of critical habitat for 12 species of coral listed as threatened and found in U.S. waters. The Center for Biological Diversity, which filed suit in 2019, alleged in its complaint that the coral species face an “extinction crisis due to the threats of climate change, ocean acidification, disease, overfishing, and pollution, among others.” In the settlement agreement, NMFS agreed to make the proposed critical habitat determinations by July 31, 2020. Center for Biological Diversity v. Ross, No. 1:19-cv-02526 (D.D.C. Feb. 27, 2020).
Federal Court Largely Denied Motion to Dismiss Some Defendants from U.S.’s Challenge to California’s Greenhouse Gas Agreement with Canadian Provinces; Summary Judgment Hearing on March 9
The federal district court for the Eastern District of California declined to dismiss the Western Climate Initiative, Inc. (WCI) or its statutorily appointed voting board members from the federal government’s lawsuit challenging the constitutionality of California’s agreement with the governments of Quebec and Ontario related to cap-and-trade programs for reducing greenhouse gas emissions. The court found that the United States adequately alleged that WCI’s actions in implementing the agreement would cause or contribute to the U.S.’s injury. The court further found that the U.S. claims for injunctive relief were properly asserted against the voting board members—the heads of the California Air Resources Board (CARB) and the California Environmental Protection Agency (CalEPA). The court also declined to dismiss the head of CalEPA in his official capacity as secretary of the agency since CalEPA is the parent agency of CARB, which is delegated authority to implement the cap-and-trade program. The court did dismiss two non-voting board members of WCI from the action. In a separate order, the court—citing its interest in not resolving the case in a piecemeal fashion—directed the parties to supplement their summary judgment briefing with explanations of their reasons for not moving for summary judgment on the Foreign Affairs Doctrine and Foreign Commerce Clause claims. The parties’ summary judgment motions address only the U.S.’s Treaty Clause and Compact Clause claims.
Other developments in the case included the court’s denial of the defendants’ application to extend the schedule for briefing cross-motions for summary judgment. Briefing was to be completed on March 2, 2020, and a hearing was scheduled for March 9. Along with Environmental Defense Fund, Natural Resources Defense Council, and International Emissions Trading Association, which intervened in support of the defendants, the following parties moved to file briefs as amici curiae in support of the defendants: 13 professors of foreign relations law; 13 former U.S. diplomats and government officials; the Nature Conservancy; and 14 states. United States v. California, No. 2:19-cv-02142 (E.D. Cal.).
Montana Federal Court Rejected Shareholder’s Bid to Have Utility Include Proposal for Cessation of Coal-Fired Generation in Proxy Materials
The federal district court for the District of Montana ruled that a public utility company could omit from its proxy materials a shareholder proposal requesting that the company cease coal-fired generation of electricity at a power plant and replace it with renewable energy sources and energy storage technologies by the end of 2025. The court agreed with the company that the proposal could be excluded pursuant to the Securities and Exchange Commission’s rules for shareholder proposals because the proposal impermissibly interfered with a matter relating to the company’s “ordinary business operations.” The court concluded that although the proposal raised “sufficiently significant social policy issues,” it would have to focus on “something larger than shutting down a specific plant by a specified target date” in order “to transcend the ordinary business operations” of the utility company. Tosdal v. Northwestern Corp., No. 9:19-cv-00205 (D. Mont. Feb. 25, 2020).
Fish and Wildlife Service Agreed to Schedule for Critical Habitat Determinations for Climate Change-Threatened Hawaiian Species
The Center for Biological Diversity (CBD) and the U.S. Fish and Wildlife Service (FWS) filed a settlement agreement in federal court in Hawaii pursuant to which the FWS will publish a determination concerning the designation of critical habitat for 14 endangered species by February 28, 2023. CBD filed a lawsuit in October 2019, alleging that the 14 species, which were listed as endangered in 2013, faced serious and ongoing threats, including climate change. CBD asserted that the failure to designate critical habitat constituted agency action “unlawfully withheld or unreasonably delayed.” Center for Biological Diversity v. Bernhardt, No. 1:19-cv-00588 (D. Haw. Feb. 25, 2020).
Parties Settled Lawsuit Regarding Delayed Listing Determinations on Eight Climate-Threatened Species
The federal district court for the Northern District of California dismissed an Endangered Species Act lawsuit brought by Center for Biological Diversity and San Francisco Baykeeper to compel listing decisions on eight species after the parties reached an agreement pursuant to which the U.S. Fish and Wildlife Service (FWS) would review the status of two species—the marron bacora (a plant threatened by climate change among other factors) and the Puerto Rico harlequin butterfly (also threatened by climate change). The settlement agreement indicated that the FWS had already taken action on four other species at issue in the case. The settlement agreement required the FWS to review the status of the species and submit 12-month findings for publication by the end of July 2020 for the marron bacora and by the end of August 2020 for the Puerto Rico harlequin butterfly. Center for Biological Diversity v. Bernhardt, No. 4:19-cv-02843 (N.D. Cal. Feb. 18, 2020).
Federal Court Remanded Three Endangered Species Act Issues for Arizona Mine, but Rejected Claim that Climate Change Cumulative Impacts on Groundwater Weren’t Considered
The federal district court for the District of Arizona remanded certain issues back to the U.S. Fish and Wildlife Service for reconsideration in connection with the FWS’s biological opinion pursuant to the Endangered Species Act for the Rosemont Mine in the Coronado National Forest. The court said the FWS unlawfully applied a heightened standard of review in determining that the mine was not likely to result in destruction or adverse modification of jaguar critical habitat, failed to assess the “tipping” point in its jeopardy analysis for the northern Mexican gartersnake, and included an unlawful Incidental Take Statement in the biological opinion. The court rejected other arguments raised by the plaintiff, including the argument that in evaluating jeopardy and adverse modification of critical habitat as to various listed aquatic species, the FWS failed to consider cumulative impacts of groundwater drawdown from private wells alongside effects of the mine and climate change. The court found that the FWS and U.S. Forest Service were aware of and considered these issues. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:17-cv-00475 (D. Ariz. Feb. 10, 2020).
New York Court Denied Nonprofit’s Motion to Intervene in Exxon Suit for Purposes of Unsealing Documents
A New York trial court denied a motion by the nonprofit Energy Policy Advocates and an individual board member to intervene in the New York attorney general’s unsuccessful case against Exxon Mobil Corporation for the purpose of moving to unseal certain judicial documents related to communications between a private attorney and the attorney general’s office prior to the filing of the case. After noting that none of the five documents at issue were entirely sealed and that all were publicly discussed and available with minor redactions, the court found that the limited redactions at issue “do not in any way undermine the important public policy assuring that judicial proceedings be open and transparent.” People v. Exxon Mobil Corp., No. 452044/2018 (N.Y. Sup. Ct. Feb. 27, 2020).
Mistrial Declared for Climate Change Activists on Trial in Oregon
The Oregonian/OregonLive reported that an Oregon state court declared a mistrial in a criminal case against five climate change activists who blocked train tracks used by an energy company by building a garden on the tracks. The six-person jury reported that it was split, with five people voting to acquit the defendants and one voting to convict. The defendants, who were accused of criminal trespass, presented a “choice of evils” or necessity defense. Three of the defendants submitted a notice, offer of proof, and memorandum in support of the defense in January. They contended that “[f]acing the indisputable crisis of global warming and the failure of government at all levels, as well as private industry, to take any appropriate action in response to the crisis, defendants had no reasonable alternative to their acts of non-violent resistance” and that it was reasonable for the defendants to believe that the “imminent harms” of global warming were greater than the potential injury of the “mere transient ‘harm’ to objects and property” caused by trespass. State v. Butler, No. 19-CR-28017, 19-CR-28005, 19-CR-27982, 19-CR-28019, and 19-CR-27988 (Or. Cir. Ct. Feb. 27, 2020).
Washington Appellate Court Said Agency Conducted Adequate Search for Records Related to Greenhouse Gas Analysis for Coal Terminal
The Washington Court of Appeals affirmed dismissal of a Public Records Act lawsuit brought by the developer of a proposed coal export terminal. The appellate court rejected the developer’s argument that the Washington State Department of Ecology failed to conduct an adequate search in response to the developer’s request for “data and assumptions” used to prepare an analysis of the proposed terminal’s greenhouse gas emissions. Millennium Bulk Terminals Longview, LLC v. Washington State Department of Ecology, No. 52270-5-II (Wash. Ct. App. Feb. 25, 2020).
NEW CASES, MOTIONS, AND NOTICES
Juliana Plaintiffs Sought En Banc Rehearing of Ninth Circuit Determination that They Lacked Standing
The plaintiffs in Juliana v. United States sought en banc reconsideration of the Ninth Circuit’s ruling that they did not have standing to pursue their claims against the federal government for alleged violations of their constitutional rights, including a substantive due process right to a “climate system capable of sustaining human life.” The plaintiffs argued that the Ninth Circuit majority made “significant errors of law,” including by finding that declaratory relief was not sufficient to establish the redressability prong of standing. The plaintiffs also argued that the Ninth Circuit majority erroneously rejected partial redress of injury as a basis for standing, incorrectly concluded that Article III courts lacked power to institute a remedial plan to redress the plaintiffs’ injuries, and improperly “created a new redressability test infused with the political question analysis” from Supreme Court precedent. The plaintiffs contended that the Ninth Circuit’s decision therefore met every test for en banc reconsideration since it implicated “profoundly important issues” of catastrophic climate change harms to children; conflicted with Supreme Court, Ninth Circuit, and sister circuit law; and affected the national uniformity of the application of the law of redressability. The plaintiffs asserted that an en banc rehearing was particularly appropriate in this case because it involved children’s constitutional rights. They said that over the past decade, the Ninth Circuit had “consistently granted rehearing in cases where children’s constitutional rights were denied by the 3-judge panel, only denying rehearing in such cases where the 3-judge panel originally upheld the children’s rights or allowed them to pursue their claims in another tribunal.” Juliana v. United States, No. 18-36082 (9th Cir. Mar. 2, 2020).
Biofuel Trade Groups Sought Review of 2020 Volume Requirements for Renewable Fuel Standard Program
A coalition of three national trade associations representing companies and biofuel facilities that produce renewable electricity used as transportation fuel filed a petition for review in the D.C. Circuit Court of Appeals challenging EPA’s final rule setting 2020 volume requirements for renewable fuel production in the Renewable Fuel Standard Program. On March 2, 2020, the coalition filed a motion to consolidate or otherwise coordinate their challenge to the 2020 rule with their pending challenge to the 2019 volume requirements. Alternatively, the coalition requested that the D.C. Circuit hold the challenge to the 2020 rule in abeyance pending a decision on the 2019 rule. RFS Power Coalition v. EPA, No. 20-1046 (D.C. Cir., filed Feb. 21, 2020; motion to consolidate Mar. 2, 2020).
Lawsuits Filed Challenging Department of Energy Decision to Leave Current Efficiency Standards for Incandescent Lamps in Place
Seven organizations led by Natural Resources Defense Council filed a petition in the Second Circuit Court of Appeals seeking review of the U.S. Department of Energy’s (DOE’s) December 2019 final rule concerning energy conservation standards for general service incandescent lamps. DOE finalized a determination that more stringent amended standards would not be economically justified. New York, 13 other states, and New York City and the District of Columbia filed a separate petition challenging the final rule. Natural Resources Defense Council v. U.S. Department of Energy, No. 20-699 (2d Cir., filed Feb. 25, 2020); New York v. U.S. Department of Energy, No. 20-743 (2d Cir., filed Feb. 28, 2020).
Challenge to Gulf Coast LNG Terminal Filed in D.C. Circuit
Environmental and community groups, the City of Port Isabel, and two individuals filed a petition seeking review of Federal Energy Regulatory Commission (FERC) authorizations for a liquefied natural gas (LNG) terminal on the Gulf Coast in Texas and a related new interstate natural gas pipeline system that would transport natural gas to the terminal for processing, liquefaction, and export. Before FERC, the petitioners raised issues regarding the projects’ effect on global greenhouse gases as well as the projects’ impacts on health, safety, and quality of life in nearby communities. Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1045 (D.C. Cir., filed Feb. 20, 2020).
Lawsuits Challenged NEPA Review for Air Cargo Facility in Southern California
Two lawsuits were filed in the Ninth Circuit Court of Appeals challenging the Federal Aviation Administration’s (FAA’s) issuance of a Finding of No Significant Impact and Record of Decision for an air cargo facility in San Bernardino, California. One petition for review was filed by a local environmental justice group, Sierra Club, a union, and two individuals. The other lawsuit was brought by the State of California, which asserted incomments on the draft environmental assessment that the FAA had failed to mention either the presence of a nearby environmental justice community or the significant and unavoidable air quality, climate change, and noise impacts identified in an earlier California Environmental Quality Act (CEQA) review of the project by the San Bernardino International Airport Authority. Center for Community Action & Environmental Justice v. Federal Aviation Administration, No. 20-70272 (9th Cir., filed Jan. 29, 2020); California v. Federal Aviation Administration, No. 20-70464 (9th Cir., filed Feb. 20, 2020).
Department of Interior Notified Court of Completion of Environmental Assessment for Resumption of Coal Leasing; No Significant Impacts Found
Federal defendants notified the federal district court for the District of Montana that they had posted a FONSI and final environmental assessment (EA) on the U.S. Bureau of Land Management website to comply with the court’s April 2019 ruling that the lifting of the Obama administration’s moratorium on coal leasing was a “major federal action” triggering obligations under NEPA. The FONSI stated that “[i]n the Department [of the Interior]’s view,” the order lifting the moratorium “does not have environmental effect because it does not, in itself, authorize sale or issuance of any new coal leases.” The FONSI indicated that the Department of the Interior believed that the order did not alter substantive law but merely altered a choice the Obama administration made that the Department believed was inconsistent with existing law. The FONSI said the Final EA “documented the effects and consequences of lifting the [moratorium] and resuming application processing sooner than anticipated.” Because of the “temporary nature” of the Obama administration moratorium, the FONSI concluded that the effects of lifting the moratorium were “limited to the timing of lease issuances” and that resumption of leasing practices, including compliance with NEPA, therefore “created no significant, unstudied impacts.” Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-00030 (D. Mont. Feb. 27, 2020).
California Challenged Federal Endangered Species Act Determinations for Big Water Projects
California Natural Resources Agency, California Environmental Protection Agency, and California Attorney General Xavier Becerra, as representative for the people of California, filed a lawsuit contending that federal agencies violated the Endangered Species Act and NEPA when they adopted biological opinions finding that the Central Valley Project and State Water Project—the two largest water projects in California—were not likely to jeopardize the continued existence of threatened and endangered fish species or to destroy or adversely modify their critical habitat. The complaint alleged, among other things, that the final EIS included new modeling of climate change scenarios that required further analysis. The plaintiffs asserted that the public and other agencies had not been given an opportunity to comment on the updated modeling. The complaint also alleged that the EIS failed to take the required hard look at the consequences of extreme climate events even though it acknowledged that the frequency and magnitude of such events would increase. California Natural Resources Agency v. Ross, No. 3:20-cv-01299 (N.D. Cal., filed Feb. 20, 2020).
Conservation Groups Sought Protections for Endangered New Mexico Meadow Jumping Mouse
Center for Biological Diversity and Maricopa Audubon Society filed a lawsuit challenging federal defendants’ failures to take actions to protect the endangered New Mexico meadow jumping mouse. The complaint alleged that a 2014 Species Special Assessment Report identified sources of habitat loss for the jumping mouse that included drought and wildfires, both exacerbated by climate change. In correspondence to the plaintiffs, the U.S. Forest Service declined to reinitiate consultation under the Endangered Species Act concerning the impacts of the ongoing implementation of the Land Management Plan (LMP) for the Apache-Sitgreaves National Forest on the jumping mouse. The Forest Service indicated that effects of climate change and other effects were part of the baseline for the LMP, not the result of the LMP. The complaint asserted violations of the Endangered Species Act and the National Forest Management Act. Center for Biological Diversity v. Bernhardt, No. 4:20-cv-00075 (D. Ariz., filed Feb. 20, 2020).
FOIA Plaintiff Asked Court to Bar CEQ from Closing Comment Period on Proposed NEPA Regulations
The Southern Environmental Law Center (SELC) filed a motion in a pending Freedom of Information Act (FOIA) case against the Council on Environmental Quality (CEQ) asking the court to bar CEQ from closing the comment period on its proposed NEPA regulations until CEQ provides documents requested by SELC in 2018. The FOIA request sought records related to the advance notice of proposed rulemaking that CEQ issued in June 2018. In its motion, SELC argued that a preliminary injunction was necessary “to stop CEQ from making unprecedented sweeping changes to the regulations that implement NEPA before it has provided SELC and the public a full and complete opportunity to understand and participate in the rulemaking process.” SELC said the proposed rule was “unprecedented in scope” and would, among other things, “remov[e] the requirement that federal agencies consider long term, widespread impacts like climate change.” Southern Environmental Law Center v. Council on Environmental Quality, No. 3:18-cv-00113 (W.D. Va. Feb. 13, 2020).
Missouri Challenged Environmental Review for Water Diversion Project
The State of Missouri filed a federal court lawsuit charging that the Bureau of Reclamation, the U.S. Army Corps of Engineers, and a North Dakota agency violated NEPA when they authorized the Central ND Project, which would divert water from the Missouri River. Missouri alleged that the Finding of No Significant Impact for the project “stated, without proper analysis,” that the project would not substantively contribute to climate change or affect park lands, farming lands, wetlands, wild and scenic rivers, or ecologically critical areas. Missouri v. U.S. Department of the Interior–Bureau of Reclamation, No. 2:20-cv-04018 (W.D. Mo., filed Feb. 4, 2020).
Environmental Groups Challenged Wisconsin Approval for New Natural Gas Power Plant
Clean Wisconsin and Sierra Club filed a lawsuit challenging the Wisconsin Public Service Commission’s decision approving a Certificate of Public Convenience and Necessity (CPCN) for the Nemadji Trail Energy Center, a proposed 625-megawatt natural gas-powered generating facility. The petitioners alleged that they had standing because they and their members “have an interest in reducing greenhouse gas emissions, are affected by global climate change, and will be further adversely affected if additional sources, such as the gas plant in this case, are allowed to add even more CO2-equivalent to the atmosphere” and also because petitioners’ members included individuals who would be affected by other environmental impacts and who would be responsible for paying the costs of the proposed facility. The petitioners asserted that the Commission made errors of law, fact, procedure, and discretion when it determined that the statutory standards for approving a CPCN were met. The petitioners also asserted that the Commission failed to comply with obligations under Wisconsin’s Energy Priorities Law and the Wisconsin Environmental Protection Act. Clean Wisconsin, Inc. v. Public Service Commission, No. 2020CV000585 (Wis. Cir. Ct., filed Feb. 28, 2020).
Lawsuit Filed Challenging City’s Approval of Lower Manhattan Resiliency Project
Residents of the East Village and the Lower East Side of Manhattan, along with local organizations, filed a lawsuit challenging New York City’s approval of a resiliency plan for the Lower East Side that involved elevating an existing park on the East River by eight feet to serve as a barrier to coastal storms and flooding. The petitioners contended that closing a portion of the park for several years to build the barrier constituted use of parkland for a non-park purpose and that ”recreating a park on top of a seawall is sugar-coating a non-park purpose.” The petitioners asserted that the City therefore violated the public trust doctrine by failing to obtain the New York State legislature’s approval for the non-park use of the land. East River Park Action v. City of New York, No. 151491/2020 (N.Y. Sup. Ct., filed Feb. 6, 2020).
Organizations Challenged Vegetation Treatment Plan to Reduce California Wildfire Risk
Two conservation organizations challenged state approvals of the California Vegetation Treatment Program, which is intended to serve as a component of California’s plan to reduce wildlife risk. The causes of action in the petition were for violations of the California Environmental Quality Act (CEQA) and Section 4483 of the Public Resources Code, which requires special consideration for protection of chaparral and coastal sage scrub plant communities that are threatened by wildfires. The petition alleged that the CEQA review failed to adequately analyze greenhouse gas emission impacts, including failure to analyze “net loss of carbon sequestration with the removal of vegetation and damage to the ability of soils to sequester carbon as a result of vegetation treatment activities.” The petitioners also alleged a “failure to account for plant community extirpation due to projected climate change impacts and how the cumulative impact of their treatments will accelerate those impacts.” California Chaparral Institute v. Board of Forestry & Fire Protection, No. 37-2020-00005203-CU-TT-CTL (Cal. Super. Ct., filed Jan. 28, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
South African Court Remanded Decision for Failure to Consider Climate Impacts on Water
The South African High Court has remanded an administrative decision allowing urban development with instructions to more fully consider climate change impacts. Since May 2011, the Province and City of Cape Town have taken steps to allow urban development in the Philippi Horticultural Area (PHA). The PHA Food and Farming Campaign and its convener, Nazeer Ahmed Sonday, challenged those actions on several grounds, including that development would threaten a local aquifer. On February 18, 2020 a judge of the South African High Court found that the Province and City had made several errors and remanded with instructions to, among other things, reconsider the decision’s effect on existing rights related to the aquifer “in the context of climate change and water scarcity.” Philippi Horticultural Area Food & Farming Campaign, et al. v. MEC for Local Government, Environmental Affairs and Development Planning: Western Cape, et al., 16779/17 (High Court of South Africa).
Greenpeace Alleged Austria’s Tax Breaks for Air Travel Threaten Human Rights
On February 20, 2020 Greenpeace asked Austria’s constitutional court to invalidate two laws that give tax credits for air travel but not rail transportation. According to news reports, the complaint, filed on behalf of 8000 Austrian citizens, argues that Austria’s tax exemption on kerosene fuel for domestic flights and a value-added tax exemption on international flights increase carbon dioxide emissions and contribute to climate change. Greenpeace further alleges that the tax breaks infringe on the right to life and liberty guaranteed by Article 8 of the European Convention on Human Rights. Zoubek, et al. v. Austria (Constitutional Court of Austria).
Canadian Indigenous Leaders Filed Suit Against Government for Failure to Comply with Paris Goals, Alleging Violations of Human and Constitutional Rights
Two houses of the Wet’suwet’en indigenous group filed a legal challenge on February 10, 2020 alleging that the Canadian government’s approach to climate change has violated their constitutional and human rights. The plaintiffs allege that Canada has failed to meet its international commitments to reduce greenhouse gases, including those made at the 1988 International Conference on the Changing Atmosphere and under the 1992 United Nations Framework Convention on Climate Change, the 1998 Kyoto Protocol, the 2009 Copenhagen Accord, the 2010 Cancun Agreement and the 2015 Paris Agreement. Plaintiffs further claim that Canada’s Nationally Determined Contribution under the Paris Agreement—to reduce annual greenhouse gas emissions by 30% below 2005 levels by 2030—is insufficient to meet its commitments to hold global warming below 2 degrees Celsius and pursue efforts to keep warming to 1.5 degrees. Moreover, according to plaintiffs, Canada appears unlikely to meet its Nationally Determined Contribution. Finally, plaintiffs argue that Canada has failed to use discretionary decision-making power under its environmental assessment legislation to withhold approval of greenhouse gas emitting projects—in particular liquefied natural gas exports facilities—to help bring Canada’s trajectory in line with the Paris Agreement targets.
Plaintiffs contend that they have experienced significant warming effects on their territories and expect to experience negative health impacts due to climate change. They further assert that Canada’s historical treatment of indigenous leaders and ongoing racial discrimination exacerbate the psychological and social trauma caused by climate change. Their claims arise principally under Section 91 of the Constitution Act, 1867 (duty to make laws for the peace, order and good); Section 7 of the Charter of Rights and Freedoms (right to life, liberty and security); and Section 15(1) of the Charter of Rights and Freedoms (equality before the law).
Plaintiffs seek declaratory relief; an order requiring the government to amend each of its environmental assessment statutes that apply to extant high greenhouse gas emitting projects to allow project approval to be canceled if Canada will be unable to keep its Paris Agreement commitments or considers climate change to be a national emergency; and an order requiring the government to complete an annual account of its cumulative greenhouse gas emissions in a format that allows comparison to Canada’s carbon budget.Lho’imggin et al. v. Her Majesty the Queen (Federal Court of Canada).
Supreme Court of Ireland Granted Extraordinary Review of Climate Case
The Supreme Court of Ireland has agreed to hear a challenge to the country’s climate policy, allowing the plaintiffs to leapfrog the Court of Appeal. The advocacy group Friends of the Irish Environment (FIE) filed suit in the High Court in 2017, arguing that the Irish government’s approval of the National Mitigation Plan in 2017 violated Ireland’s Climate Action and Low Carbon Development Act 2015 (the Act), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life. FIE alleged that the National Mitigation Plan (the Plan), which seeks to transition to a low-carbon economy by 2050, is inconsistent with the Act and Ireland’s human rights commitments because it is not designed to achieve substantial short-term emissions reductions.
On September 19, 2019, the High Court rejected FIE’s claims, reasoning that the government appropriately exercised policy making discretion afforded by the Act, and explaining that the current Plan is only an initial step in achieving targets for transitioning to a low-carbon, climate resilient, and environmentally sustainable economy by 2050 that will be subject to review and revision. On November 22, 2019, FEI appealed the ruling to the Court of Appeal, and simultaneously submitted an application to leapfrog the traditional appeal route and go directly to the Supreme Court. On February 13, 2020 the Supreme Court agreed to hear the case, determining that exceptional circumstances warranted direct appeal. The Court explained that, “[t]he applicant and the respondents accept that there exists a degree of urgency in respect of the adoption of remedial environmental measures. There is no dispute between the parties as to the science underpinning the Plan and the likely increase in greenhouse emissions over the lifetime of the Plan.” Friends of the Irish Environment v. Ireland, 2017 No. 793 JR (High Court of Ireland).
UK Appellate Court Ruled Government Erred by Approving Heathrow Expansion Without Considering Paris Goals
A UK appellate court ruled that the government acted unlawfully by approving an expansion of Heathrow International Airport without considering the country’s commitment to meeting the Paris Agreement goals.
In August 2018, Friends of the Earth and Plan B Earth, a British nonprofit with the mission to realize the goals of the Paris Agreement on climate change, filed suit against the Secretary of State for Transport Chris Grayling (the Secretary) alleging inadequate consideration of climate change impacts in regards to the expansion of Heathrow International Airport. The plaintiffs argued, among other things, that the Secretary’s national policy statement supporting the expansion of Heathrow Airport (the Airport National Policy Statement or the ANPS) violated the Planning Act 2008 (the 2008 Act) for its failure to consider the climate change implications of its action and its commitment to meeting the Paris Agreement goals. The case went before the High Court of Justice Queen’s Bench Division Administrative Court, which rejected the climate change-related claims. The court did not find that the Secretary had any obligations to consider the Paris Agreement climate targets, the science underlying those climate targets, or a more stringent potential future climate target necessary for meeting the Paris Agreement.
The Court of Appeal granted plaintiffs the permission to appeal, writing that the “[i]mportance of the issues raised in these and the related proceedings is obvious.” On February 27, 2020 the Court of Appeal reversed the lower court. The court concluded that the Government had made a commitment to the Paris Agreement goals a part of “Government policy” by the time the ANPS was prepared. The Secretary, as a result, needed to expressly consider and address the Paris Agreement goals during the ANPS process (but did not need to act in accordance with the Paris Agreement or reach any particular outcome). The court held that by failing to consider the Paris Agreement the Secretary violated the Planning Act and the requirement to undertake a strategic environmental assessment pursuant to EC Council Directive 2001/42/EC. The court therefore concluded that the ANPS is invalid and must be redone. The court further ruled that in completing a new ANPS, the Secretary should consider the non-carbon dioxide climate impacts of aviation and the effects of emissions beyond 2050, both of which had been omitted from the original analysis. The court did not find it necessary to quash the ANPS, but rather determined that the appropriate form of relief was a declaration that the decision to approve the airport expansion was unlawful and the ANPS may not have legal effect unless and until the Secretary undertakes a review of it in accordance with the Planning Act. Plan B Earth et al. v. Secretary of State for Transport, [2020] EWCA Civ 214 (UK Court of Appeal).
French Court Threw Out Case Against Oil Major Total
On January 30, 2020, a French court determined it could not entertain a lawsuit against the energy company Total under the French Law of Vigilance. Under that 2017 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, six nonprofits sent Total a formal demand to revise its vigilance plan for an oil project in Uganda and Tanzania alleging. The demand alleged inadequacies in Total’s analysis of human rights, impacts of conventional pollution, and the project’s potential life cycle greenhouse gas emissions. After Total rejected the allegations following a three-month deadline, the complainants filed a complaint. On January 30, 2020 the Nanterre High Court of Justice ruled that it was not competent to hear the case, which must, instead, be brought before a commercial court. Friends of the Earth et al. v. Total (Nanterre High Court of Justice).
Alberta Court of Appeal Found Canada’s Carbon Pricing Law Unconstitutional
On February 24, 2020 the Court of Appeal of Alberta found Canada’s carbon pricing act unconstitutional. The court reasoned that the act was not a proper exercise of the national government’s authority.
Alberta filed suit in June 2019, arguing that the Greenhouse Gas Pollution Pricing Act, SC 2018, c. 12 (the Act) was unconstitutional because it does not fall within the national concern branch of the Parliament’s peace, order and good government (POGG) power. The Act imposes a price on greenhouse gases by establishing a “fuel charge” on 22 greenhouse gas-emitting fuels, and an out-put based pricing system for industrial emitters.
Ontario, New Brunswick, Saskatchewan, Saskatchewan Power Corporation, and SaskEnergy, Inc, intervened in support of Alberta’s position. They contended that the “matter” of the Act is properly understood to be the regulation of greenhouse gas emissions, and that to give the federal government exclusive authority over such a matter under the national concern doctrine would unduly intrude into the provinces’ jurisdiction to regulate their own natural resources. Canada responded that it had the authority to enact the Act under the national concern doctrine, arguing that the Act’s “matter” was in truth “the establishment of minimal national standards of stringency for GHG emissions pricing to reduce Canada’s nationwide GHG emissions.” British Columbia and three nonprofits intervened to support Canada.
The court ruled for Alberta, concluding that the Act does not fall within the Canadian government’s authority under the national concern doctrine. The court explained that the government cannot use the national concern doctrine to commandeer matters assigned exclusively to the provinces. Ultimately, the court determined that the “matter” of the Act is properly construed as the “regulation of greenhouse gas emissions,” and the Act therefore interferes with provincial jurisdiction over natural resources, property and civil rights, local works and undertakings, and direct taxation. In the Matter of the Greenhouse Gas Pollution Pricing Act, SC 2018, c. 12, 1903-0157-AC (Court of Appeal of Alberta).
