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 # 132.
FEATURED CASE
Fourth Circuit Affirmed Remand of Baltimore’s Climate Change Case Against Fossil Fuel Companies; Companies Sought Supreme Court Review and Argued for Limited Relevance in Other Pending Appeals
On March 6, 2020, the Fourth Circuit Court of Appeals declined to reverse a remand order that returned the City of Baltimore’s climate change case against fossil fuel companies to state court. The district court had rejected all eight of the defendants’ grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to the issue of whether the defendants properly removed the case under the federal officer removal statute. The Fourth Circuit cited decades-old Fourth Circuit precedent limiting the scope of review of remand orders to grounds specifically exempted from the statutory bar on appellate review, including federal-officer removal. The court rejected the defendants’ argument that a Supreme Court decision on the scope of interlocutory review had abrogated this precedent. The Fourth Circuit also concluded that the Removal Clarification Act of 2011 did not authorize “plenary review” of remand orders. Regarding the application of federal-officer removal in this case, the Fourth Circuit found that none of the three contractual relationships on which the defendants based removal were sufficient to justify such removal, either because the relationships failed to satisfy the requirement that the defendants were “acting under” a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims. The first contractual relationship consisted of fuel supply agreements between one defendant and the Navy Exchange Service Command; the court said these agreements contained provisions “typical of any commercial agreement” and did not satisfy the “acting under” requirement. The second contractual relationship was oil and gas leases administered under the Outer Continental Shelf Lands Act; the court found that these agreements did not satisfy the “acting under” requirement and, moreover, that the defendants “did not plausibly assert that the charged conduct was carried out ‘for or relating to’ the alleged official authority, given the ‘wide array of conduct’ for which they were sued,” including alleged “concealment and misrepresentation of the products’ known dangers—and simultaneous promotion of their unrestrained use.” The third contractual relationship was a 1944 agreement between one defendant’s predecessor and the Navy for joint operation of a strategic petroleum reserve; the Fourth Circuit concluded this agreement did not satisfy the “acting under” requirement and that its relationship to Baltimore’s claims was too attenuated. Mayor & City of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. Mar. 6, 2020).
On March 31, 2020, the defendants filed a certiorari petition in the Supreme Court, seeking review of the question of whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.” Baltimore’s response to the petition is due on April 30. BP p.l.c. v. Mayor & City of Baltimore, No. 19-1189 (U.S. Mar. 31, 2020).
The state and local governmental plaintiffs in other climate change lawsuits against fossil fuel companies notified other circuit courts of appeal of the Fourth Circuit’s decision. Rhode Island contended in a letter to the First Circuit that the decision “rejects the exact arguments raised … as to the proper scope of … appeal” of the remand order in its case as well as the defendants’ “tenuous justification for federal officer removal.” Oakland and San Francisco told the Ninth Circuit that the Fourth Circuit had rejected the only basis for federal-officer removal that the defendants-appellees offered in their case, while other California local governments told the Ninth Circuit that the Fourth Circuit had rejected the defendants-appellants’ arguments regarding both the scope of appellate jurisdiction and the application of federal-officer removal. In the Tenth Circuit, Colorado local government plaintiffs similarly told the court that the Fourth Circuit’s decision supported affirmation of the remand order in their case. In response to these filings, defendant Chevron Corporation distinguished the Fourth Circuit’s opinion, arguing that the Fourth Circuit viewed itself as bound by precedent regarding the scope of its appellate jurisdiction (which Chevron contended was not the situation in the other appeals). Chevron also asserted that the Fourth Circuit based its determination that federal-officer removal was inapplicable on an incorrect conclusion regarding the focus of Baltimore’s claims. With respect to Oakland and San Francisco’s appeal, Chevron also said the Ninth Circuit could review all grounds for removal since the appeal was from a final judgment, not just the remand order; Chevron also reasserted the defendants’ contention that Oakland and San Francisco’s amendment of their complaint after the denial of their motion to remand mooted their appeal of the denial.
Other developments in these appeals included the First Circuit’s allowance of a motion to file a late amicus brief. The party seeking to file the brief—Energy Policy Advocates—said it had obtained information through public records requests regarding state court bias and Rhode Island’s political and financial motivations for filing the lawsuit. Rhode Island urged the court to disregard the amicus brief, arguing that it was “filled with inflammatory, baseless speculation” that was not relevant to the substance of the appeal.
In the Tenth Circuit appeal of the remand order in the case brought by Colorado local government plaintiffs, oral argument was scheduled for May 6, 2020, but the Tenth Circuit has indicated that oral arguments scheduled for May will be argued telephonically, submitted on the briefs, or reset for in-person argument at a later date due to the COVID-19 pandemic. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.); County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir.); City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir.).
DECISIONS AND SETTLEMENTS
Second Circuit Ruled That EPA Must Disclose Component of Model Used to Evaluate Greenhouse Gas Vehicle Standards
Reversing a district court decision, the Second Circuit Court of Appeals held that the deliberative process privilege and Exemption 5 of the Freedom of Information Act did not apply to a “core model” component of OMEGA, a computer model used by the U.S. Environmental Protection Agency (EPA) to evaluate greenhouse gas vehicle standards. Exemption 5 shields from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The Second Circuit found that the model was not deliberative because the record showed “that to the extent the full OMEGA model reflects any subjective agency views, it does so in the input files, not the core model.” The appellate court found that release of the core model would not “contain or expose the types of internal agency communications that courts typically recognize as posing a risk to the candor of agency discussion such as advice, opinions, or recommendations.” Natural Resources Defense Council v. EPA, No. 19-2896 (2d Cir. Apr. 1, 2020).
Massachusetts Federal Court Stayed Climate Adaptation Citizen Suit Against Exxon
Citing the doctrine of primary jurisdiction, the federal district court for the District of Massachusetts stayed a citizen suit asserting that ExxonMobil Corporation (Exxon) and related defendants violated the National Pollutant Discharge Elimination System (NPDES) permit for their 110-acre petroleum storage and distribution terminal in Everett, Massachusetts, including by failing to consider flooding and severe storms caused by climate change in their maintenance of the terminal. The plaintiff also asserted that the permit violations posed an imminent and substantial endangerment to human health and the environment in violation of the Resource Conservation and Recovery Act. The terminal has a NPDES permit issued by EPA that expired in 2014 but which EPA has administratively continued so that its terms remain in effect; EPA regional counsel informed the court that the agency is working in good faith to renew the permit by 2022. The court found that the precedent against applying primary jurisdiction in citizen suits was “not overwhelming,” and that, in any event, this case was not a “typical” citizen suit, both because it involved “ambiguous, narrative permit conditions” and would require the court to determine to what extent weather patterns were changing in the Boston area, an inquiry implicating scientific and policy issues. Although the court acknowledged that the doctrine of primary jurisdiction should be applied “sparingly” in citizen suits, it concluded that this case “involves a rare set of circumstances in which deferring to the primary jurisdiction of the EPA is justified and appropriate.” Considering the factors for applying primary jurisdiction, the court first said that “determining permit conditions” was “at the heart of the EPA’s authority” under the Clean Water Act. Second, the court noted again that the question of how Exxon should consider “predictable weather patterns” raised “scientific and policy issues that the EPA is better equipped to decide than the court.” Third, the court noted that EPA’s issuance of the renewed permit would “generate a fuller administrative record” to which the court could refer to interpret the permit and could moot the plaintiff’s request for injunctive relief. Fourth, the court said allowing EPA the opportunity to issue the permit would further regulatory uniformity. The court also concluded that the potential for delay did not outweigh other factors; the court noted that resolving the case on the merits could require as much time as EPA had estimated for the permit’s renewal. The court therefore stayed the case, directing the parties to confer within 30 days of issuance of a new permit regarding whether the stay should be lifted and, if so, how the case should proceed. The court further directed that if a new permit was not issued by November 1, 2021, the parties should confer and report to the court on the status of the permitting process and on whether the stay should be lifted. Conservation Law Foundation v. ExxonMobil Corp., No. 16-11950 (D. Mass. Mar. 21, 2020).
Massachusetts Federal Court Granted Remand Motion in Massachusetts Attorney General’s Climate Consumer Protection Action
During a telephonic hearing on March 17, 2020, the federal district court for the District of Massachusetts granted the Massachusetts attorney general’s motion to remand her office’s consumer protection action against Exxon Mobil Corporation alleging a failure to disclose climate risks and misleading marketing of products. The court reportedly said that this was “not a case where the issue is in any substantial doubt.” The judge indicated he would issue a written opinion at a later date. The court denied Exxon’s request that it stay the order pending appeal. Massachusetts v. Exxon Mobil Corp., No. 1:19-cv-12430 (D. Mass. Mar. 17, 2020).
Federal Court Rejected U.S.’s Treaty and Compact Clause Claims in Challenge to Linkage Between California and Quebec Cap-and-Trade Programs
The federal district court for the Eastern District of California ruled that an agreement between California and Quebec concerning the linking of their greenhouse gas cap-and-trade programs did not violate either the Treaty Clause or the Compact Clause of the U.S. Constitution. The U.S.’s claims under the foreign affairs doctrine and the foreign Commerce Clause are still pending. Regarding the Treaty Clause, the court concluded that “[b]y any metric, the Agreement between California and Quebec falls short of … consequential agreements” that the Supreme Court has identified as agreements that qualify as treaties such as “treaties of alliance for purposes of peace and war,” “mutual government,” the “cession of sovereignty,” and “general commercial privileges.” Regarding the Compact Clause, the court noted that the Supreme Court had limited the clause’s bar on compacts between a state and another state or foreign power to “agreements that encroach upon federal sovereignty.” In this case, the court found that the California-Quebec agreement did not contain indicia of a compact because (1) it “does not require reciprocal action to take effect”; (2) “does not impose a regional limitation”; (3) does not adopt a joint organization or body that exercises regulatory authority; and (4) does not include an “enforceable prohibition on unilateral modification or termination.” The court also concluded that the agreement did not increase California’s power so that it encroached on U.S. supremacy. In addition, it rejected the argument that the Clean Air Act’s explicit authorization of agreements and compacts between states implicitly precludes agreements between states and foreign powers. United States v. California, No. 2:19-cv-02142 (E.D. Cal. Mar. 12, 2020).
Federal Court Upheld Repeal of Obama-Era Rule for Hydraulic Fracturing on Federal and Tribal Lands
The federal district court for the Northern District of California ruled that the Trump administration’s repeal of a rule promulgated by the Obama administration in 2015 regulating hydraulic fracturing on federal and tribal lands did not violate the Administrative Procedure Act, the National Environmental Policy Act (NEPA), or the Endangered Species Act (ESA). As a threshold matter, the court found that California had standing for all its claims and that Citizen Group Plaintiffs had standing for claims under the ESA and NEPA but not under the APA. On the merits, the court concluded that the change in policy was not arbitrary and capricious under the APA, finding that the U.S. Bureau of Land Management’s (BLM) “reasoned explanation” of the change “did enough to clear the low bar of arbitrary and capricious review.” The court was not persuaded by California’s critiques of the reversal, which included two main arguments: that BLM’s determination that the 2015 rule was duplicative of state and tribal regulation was negated by BLM’s earlier conclusions and that BLM ignored forgone benefits of the Obama-era rule in its cost-benefit analysis. The court declined to address the issue of whether BLM had authority to issue the 2015 rule. The court also agreed with the defendants that NEPA did not apply since the 2015 rule was never in effect and the “environmental status quo” therefore was not altered. (California’s NEPA claim was based in part on the defendants’ failure to consider potential significant adverse environmental impacts, including climate change harms.) Regarding the ESA, the court found that there was a “rational connection” between BLM’s “final position” that the repeal would have no effect on threatened species on BLM lands and the facts in the record. California v. Bureau of Land Management, No. 4:18-cv-00521, and Sierra Club v. Zinke, No. 18-cv-00524 (N.D. Cal. Mar. 27, 2020).
Challenges to Federal Determinations on California Water Diversion Projects Transferred from Northern to Eastern District
The federal district court for the Northern District of California transferred to the Eastern District of California two cases challenging federal adoption in 2019 of biological opinions for long-term operations of two major water diversion projects in California—the Central Valley Project and the State Water Project. One case was brought by six environmental organizations and the other by California agencies and the attorney general. The plaintiffs alleged, among other things, that the federal agencies—the U.S. Fish and Wildlife Service and the National Marine Fisheries Service—failed to consider the projects’ impacts in the context of climate change when the agencies determined that the projects would not jeopardize the continued existence of threatened and endangered fish species or destroy or adversely modify the species’ critical habitat. The court concluded that the Eastern District’s local interests in the case (e.g., the presence of the reservoirs and critical habitat in the Eastern District) and considerations of judicial economy (another case concerning the projects was pending in the Eastern District) made transfer appropriate. Pacific Coast Federation of Fishermen’s Associations v. Ross, No. 3:19-cv-07897 (N.D. Cal. Mar. 20, 2020); California Natural Resources Agency v. Ross, No. 3:20-cv-01299 (N.D. Cal., filed Feb. 20, 2020; transferred Mar. 20, 2020).
Federal Court Declined to Bar CEQ from Closing Comment Period on Proposed NEPA Regulations
In an environmental organization’s Freedom of Information Act (FOIA) lawsuit against the Council on Environmental Quality (CEQ), a Virginia federal court denied the organization’s motion for a preliminary injunction enjoining CEQ from closing the comment period on proposed amendments to the NEPA regulations. The FOIA request at issue in the case was for records related to the advance notice of proposed rulemaking for the NEPA regulations. The court concluded both that FOIA did not grant it the injunctive power to take such action since doing so would disrupt the statutory scheme of the Administrative Procedure Act. Southern Environmental Law Center v. Council on Environmental Quality, No. 3:18-cv-00113 (W.D. Va. order Mar. 9, 2020; opinion Mar. 18, 2020).
Federal Court Upheld Climate Change-Related Portions of New EA and FONSI for Coal Mine Expansion but Vacated EA on Other Grounds
The federal district court for the District of Montana largely rejected arguments that federal approval in 2018 of the expansion of an underground coal mine in south-central Montana violated NEPA and the Endangered Species Act. The court previously enjoined approval of the expansion for failure to quantify the costs of greenhouse gas emissions associated with the action. The court concluded, however, that the Office of Surface Mining Reclamation and Enforcement (OSMRE) subsequently provided sufficient support for its conclusion in its 2018 environmental assessment (EA) that the Social Cost of Carbon was “too uncertain and indeterminate to aid … decision-making.” The court also rejected the plaintiffs’ argument that OSMRE failed to consider certain significance factors in the statement of reasons for its Finding of No Significant Impact, including factors related to climate change. In particular, the court found that the statement of reasons adequately considered the impact of greenhouse gas emissions on public health; that experts who commented on the Social Cost of Carbon and climate change did not raise a “substantial dispute” that would render the expansion “highly controversial”; that the presence of “some” uncertainty regarding long-term cumulative effects of greenhouse gases did not compel preparation of an environmental impact statement; and that a statement in the EA about greenhouse gases causing climate change did not raise “substantial questions” about the project’s cumulative effects. The court did conclude, however, that a failure to analyze the risk of train derailments violated NEPA. The court therefore vacated the 2018 EA and remanded to OSMRE. 350 Montana v. Bernhardt, No. 9:19-cv-00012 (D. Mont. Mar. 9, 2020).
Maine High Court Upheld Approval for Transmission Line from Québec
The Maine Supreme Judicial Court affirmed the Maine Public Utilities Commission’s (PUC’s) issuance of a certificate of public convenience and necessity for the New England Clean Energy Connect project, a transmission line proposed to run from the Maine-Québec border to Lewiston, Maine. The court rejected arguments that the PUC misconstrued and misapplied statutory requirements that it make specific findings regarding the “public need” for the project. As part of the public need analysis, the court found the PUC had appropriately considered state renewable energy generation goals, which included reduction in greenhouse gas emissions. The PUC found that the project would result in reduced greenhouse gas emissions, a finding supported by the record. NextEra Energy Resources, LLC v. Maine Public Utilities Commission, No. PUC-19-182 (Me. Mar. 17, 2020).
Minnesota High Court Will Review Determination That MEPA Applied to Agreements Regarding Out-of-State Power Plant
The Minnesota Supreme Court granted a petition to review a Minnesota Court of Appeals decision that found that the Minnesota Public Utilities Commission should have complied with the Minnesota Environmental Protection Act (MEPA) when it approved agreements associated with construction of a new natural gas power plant in Wisconsin. In re Minnesota Power’s Petition for Approval of the EnergyForward Resource Package, Nos. A19-0688, A19-0704 (Minn. Mar. 17, 2020).
NEW CASES, MOTIONS, AND NOTICES
Lawsuits Filed to Challenge Approvals for Three LNG Facilities in Texas
Three lawsuits were filed—one in the Fifth Circuit and two in the D.C. Circuit—challenging federal authorizations for three liquefied natural gas (LNG) terminals in the Rio Grande Valley in Texas. The Fifth Circuit proceeding challenges the U.S. Army Corps of Engineers’ issuance of a Section 404 permit, which the petitioners said they will argue failed to avoid or mitigate negative impacts to wetlands. The other two proceedings challenge Federal Energy Regulatory Commission (FERC) approvals of two other LNG facilities. Those proceedings challenge the NEPA reviews for the projects as well as FERC’s conclusions under the Natural Gas Act that the projects are in the public interest. Shrimpers and Fishermen of the RGV v. U.S. Army Corps of Engineers, No. 20-60249 (5th Cir., filed Mar. 27, 2020); Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1094 (D.C. Cir., filed Mar. 27, 2020); Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1093 (D.C. Cir., filed Mar. 27, 2020).
Amici and Federal Government Filed Briefs on Rehearing Request in Juliana
Ten briefs were filed by amici curiae in support of the plaintiffs in Juliana v. United States who are seeking rehearing en banc of the Ninth Circuit’s ruling that they lacked standing to pursue their climate change-based constitutional claims against the federal government. The amici included:
- 17 of the experts who had prepared expert opinions, which they said went “to the salient issues in this case, including the ability of the federal government to redress the youth plaintiffs’ injuries”;
academic centers focused on issues of race, racial justice, and environmental justice, who said they supported rehearing because they were “deeply concerned that the majority’s decision will make it more difficult for individuals and groups to safeguard their civil rights in the courts”;
two League of Women Voters organizations and the National Children’s Campaign, which contended that the majority opinion “contravenes longstanding precedent and abdicates the judiciary’s duty to safeguard fundamental rights, particularly those of children without voting power”;
two former Surgeons General, who argued that where the health and lives of children are at stake courts should intervene since children have no remedy at the “ballot box”;
members of Congress, who asserted that the courts had the power and the duty to remedy the plaintiffs’ constitutional injuries;
international organizations and lawyers, who described foreign jurisprudence that supported the redressability of the plaintiffs’ claims and judicial ability to review climate policies;
law professors who argued both that “the panel’s majority incorrectly invoked the political question doctrine in determining whether youth plaintiffs possess standing” and that there were “well-established judicially discoverable and manageable constitutional standards” to evaluate and remedy the plaintiffs’ claims;
children’s rights advocates, who contended that the majority overlooked precedent recognizing “a special judicial role in protecting children where children are explicitly excluded from influencing policies detrimental to them”;
environmental groups that argued that the majority improperly “infused political question principles into redressability analysis” and “failed to recognize that partial redressability is sufficient to establish standing,” which could create obstacles for the groups to obtain relief in the future; and
public health experts, who described the risks climate change poses to children’s health. - On March 24, the federal defendants filed their opposition to the rehearing petition. They argued that the panel had properly concluded that the plaintiffs sought no relief that the courts had the power to grant and that the plaintiffs failed to establish that the relief sought would “substantially redress” their injuries. The defendants also contended that there was no legal question of exceptional importance that warranted rehearing. Juliana v. United States, No. 18-36082 (9th Cir.).
Lawsuit Challenged New Denial of Request for Status Review of Yellowstone Bison
Three organizations filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision not to initiate a status review of the distinct population segment (DPS) of Yellowstone bison pursuant to the Endangered Species Act. The organizations alleged that the FWS failed to address deficiencies previously identified by the court in a 2016 decision not to initiate review. The plaintiffs asserted that the decision was arbitrary and capricious because the FWS, among other shortcomings, failed “to adequately analyze the foreseeable risk to the DPS of Yellowstone bison due to climate change.” Buffalo Field Campaign v. Skipwith, No. 1:20-cv-00798 (D.D.C., filed Mar. 23, 2020).
Lawsuit Sought Final Listing Determination on Marsh Bird Threatened by Sea Level Rise
Two organizations filed a lawsuit to compel the U.S. Fish and Wildlife Service to make a final determination on the proposed listing of the eastern black rail, a “a small, elusive marsh bird with speckled black plumage, a rufous nape, and scarlet eyes” found in the eastern United States, Mexico, Central America, and the Caribbean. The plaintiffs alleged that the bird “stands on the brink of extinction” due to the loss, degradation, and fragmentation of its habitat but also due to increasing threats from sea level rise, which affects water depth, a “key habitat component” for the rail, which selects for its habitat “high ground areas of coastal marshes with shallow water (less than 6 centimeters) and infrequent tidal inundation or flooding.” Center for Biological Diversity v. Bernhardt, No. 2:20-cv-00943 (E.D. La., filed Mar. 19, 2020).
Plaintiffs Challenged Fish and Wildlife Service’s Failure to Take Final Action on Wolverine After 2016 Court Decision
A lawsuit filed in the federal district court for the District of Montana asked the court to issue a final listing determination on the distinct population segment of the North American wolverine. In 2016, the court found that the U.S. Fish and Wildlife Service had erred by dismissing the threats of climate change and small population size when it withdrew a proposal to list the wolverine DPS in the lower 48 states as threatened. The plaintiffs asserted that by failing to take final action since the court’s 2016 decision, the FWS had violated the Endangered Species Act statutory deadlines. Center for Biological Diversity v. Bernhardt, No. 9:20-cv-00038 (D. Mont., filed Mar. 18, 2020).
Lawsuit in Arizona Federal Court Asserted That Biological Opinions Failed to Consider Climate Change in Analysis of Military Base’s Impacts
Two plaintiffs filed a lawsuit in federal court in Arizona seeking to set aside that concluded that groundwater pumping by a U.S. Army base in southeastern Arizona was not likely to jeopardize any endangered species that rely on the San Pedro River or destroy or adversely modify critical habitat. The complaint included nine causes of action under the Endangered Species Act, including one for failing to address the impacts species would face from climate change and failing entirely to analyze climate change in connection with the base’s operations. Another cause of action asserted that consultation under the Endangered Species Act should have been reinitiated, due in part to new information showing that climate change “has had a more rapid and severe impact in the Southwest than anticipated.” Center for Biological Diversity v. Bernhardt, No. 4:20-cv-00106 (D. Ariz., filed Mar. 13, 2020).
Honolulu Sued Fossil Fuel Companies in State Court
The City and County of Honolulu filed a lawsuit in Hawai’i state court alleging that the actions of fossil fuel company defendants directly and proximately caused “a substantial portion of the climate crisis-related impacts in the City,” including sea level rise, extreme weather, ocean warming and acidification, impacts on freshwater supplies, loss of habitat for endemic species, and “the cascading social, economic, and other consequences of those environmental changes.” The City alleged that these consequences would include injury to and destruction of critical City-owned or -operated facilities and would require the City to incur costs for adaptation and resiliency, while also reducing tax revenue due to impacts on the tourism- and ocean-based economy. The alleged wrongful conduct by the defendants included “concealing the dangers of, promoting false and misleading information about, and engaging in massive campaigns to promote increasing use of their fossil fuel products,” which the complaint alleged had “contributed substantially to the buildup of CO2 in the atmosphere that drives global warming.” Honolulu asserted claims of public nuisance, private nuisance, strict liability for failure to warn, negligent failure to warn, and trespass. The City seeks compensatory damages; equitable relief, including abatement of the nuisance; punitive damages; disgorgement of profits; attorneys’ fees; and costs of suit. City & County of Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (Haw. Cir. Ct., filed Mar. 9, 2020).
Coal Company, Refinery Operator, and Marine Terminal Challenged Richmond Ordinance Banning Coal and Petcoke Operations
The owner and operator of a marine terminal in the City of Richmond filed a lawsuit challenging a City ordinance that prohibited transloading and export of coal and petroleum coke (petcoke). A coal company with contracts to ship coal from the terminal filed a separate lawsuit challenging the ordinance, as did the owner of a refinery that produces petcoke. The plaintiffs alleged that the City and its mayor viewed the objective of the ordinance as to reduce global climate change. The complaints asserted causes of action under the Commerce Clause, the Takings Clause, the Due Process Clause, the Equal Protection Clause, the Impairments Clause, the Interstate Commerce Commission Termination Act, the Hazardous Materials Transportation Act, the Shipping Act of 1984, and the California Constitution. Levin Richmond Terminal Corp. v. City of Richmond, No. 3:20-cv-01609 (N.D. Cal., filed Mar. 4, 2020); Wolverine Fuels Sales, LLC v. City of Richmond, No. 3:20-cv-01614 (N.D. Cal., filed Mar. 4, 2020); Phillips 66 Co. v. City of Richmond, No. 4:20-cv-1643 (N.D. Cal., filed Mar. 6, 2020).
Youth Plaintiffs Filed Climate Lawsuit Against Montana Asserting Violations of State Constitutional Rights
Sixteen young people filed a lawsuit in Montana state court asserting climate change-based claims under the Montana constitution against the State of Montana, its governor, and state agencies. In particular, the case challenges the constitutionality of Montana’s fossil fuel-based State Energy Policy and the “Climate Change Exception” in the Montana Environmental Policy Act. The plaintiffs allege that anthropogenic greenhouse gas emissions were “already triggering a host of adverse consequences in Montana, including dangerously increasing temperatures, changing precipitation patterns, increasing droughts and extreme weather events, increasing the frequency and severity of wildfires, increasing glacial melt, and causing numerous adverse health risks, especially to children,” and that defendants had continued “to act affirmatively to exacerbate the climate crisis” despite their awareness that the plaintiffs were living under “dangerous climatic conditions that create an unreasonable risk of harm.” The plaintiffs seek a declaration that their right to a clean and healthful environment includes a right a stable climate system, as well as declarations that the State Energy Policy and the Climate Change Exception violate the Public Trust Doctrine and constitutional provisions that protect the right to a clean and healthful environment; the right to seek safety, health, and happiness; and the right to individual dignity and equal protection. They also seek injunctive relief in the form of orders directing the defendants to prepare an accounting of Montana’s greenhouse gas emissions and to develop and implement a remedial plan to reduce emissions “consistent with the best available science and reductions necessary to protect Youth Plaintiffs’ constitutional rights from further infringement … , and to reduce the cumulative risk of harm to those rights.” Held v. State, No. __ (Mont. Dist. Ct., filed Mar. 13, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
New Zealand Court Allowed Novel Common Law Claim Against GHG Emitters
On March 6, 2020 a New Zealand court rejected two claims brought against major greenhouse gas emitters alleging that the defendants’ actions constituted public nuisance and negligence, but allowed a novel common law claim to proceed.
Plaintiff (Michael John Smith) asserts that he is of Ngāpuhi and Ngāti Kahu descent and that he is the climate change spokesman for the Iwi Chairs’ Forum. He claims customary interests in lands and other resources situated in or around Mahinepua in Northland, and asserts that various sites of customary, cultural, historical, nutritional and spiritual significance to him are close to the coast, on low-lying land or are in the sea. Smith brought suit against several defendants that operate facilities that emit greenhouse gas emissions, including dairy farms, a power station, and an oil refinery. Smith alleges that the defendants’ contributions to climate change constitute a public nuisance, negligence, and breach of a duty cognizable at law to cease contributing to climate change.
The High Court of New Zealand Auckland Registry dismissed the first two claims, but not the third. The court concluded that Smith could not demonstrate public nuisance because the damage claimed was neither particular to him, nor the direct consequence of the defendants’ actions. The court further reasoned that showing a public nuisance was difficult given that the defendants are complying with all relevant statutory and regulatory requirements. The court determined that Smith’s negligence claim must fail because he has not shown that the defendants owed him a duty of care, concluding that the damage claimed was not reasonably foreseeable or proximately caused by their actions.
The court declined to strike the third cause of action, which alleged that the defendants have a duty to cease contributing to climate change. The court found that there were “significant hurdles” for Smith in persuading the court that this new duty should be recognized, but determined that the relevant issues should be explored at a trial. The court explained that “[i]t may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions.” The court warned, however, that it would likely be unable to provide the injunctive relief that Smith seeks, which would require a “bespoke emission reduction scheme.” Smith v. Fronterra Co-Operative Group Limited, [2020] NZHC 419 (High Court of New Zealand, Auckland).
South Korean Youth Alleged Climate Policy Violates Rights
On March 12, 2020 thirty youth activists filed a complaint in the South Korean Constitutional Court alleging that the nation’s climate change law violates their fundamental rights, including the right to live and a clean environment, according to news reports. South Korea’s Framework Act on Low Carbon, Green Growth, which was amended in December 2019, commits to reducing annual nationwide greenhouse gases to 536 million tons by 2030, a 24.% cut from 2017. The plaintiffs argue that this target is insufficient to keep global warming below 2 degrees Celsius. Kim Yukin, et al. v. South Korea (Constitutional Court of South Korea).
Greenpeace Filed Complaint Against Polish Utility, Seeking GHG Reductions
On March 11, 2020 Greenpeace Poland filed a lawsuit against PGE GiEK, a subsidiary of state-owned utility PGE Polska Grupa Energetyczna, at the Regional Court in Łódź. According to Greenpeace, the complaint relies on article 323 of the Environmental Protection Law and requests that that PGE GiEK halt any fossil fuel investments and achieve net zero greenhouse gas emissions from its existing coal plants by 2030. Article 323 provides, in part, that “[e]very person who is directly threatened by damage or has suffered damage as a result of illegal impact on the environment may demand that the entity responsible for this threat or violation should restore the state complying with law and take preventive measures.” Greenpeace asserts that PGE Polska Grupa Energetyczna is the largest utility in Poland, and derives about 90% of its electricity from coal. Greenpeace Poland v. PGE GiEK (Regional Court in Łódź).
