By Margaret Barry and Hillary Aidun
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at email@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 133.
D.C. Circuit Said EPA Decision to Expand Partial Vacatur of HFC Prohibition Required Notice and Comment
In a split decision, the D.C. Circuit Court of Appeals vacated the U.S. Environmental Protection Agency’s (EPA’s) 2018 rule in which EPA decided to expand the D.C. Circuit’s partial vacatur in Mexichem Fluor, Inc. v. EPA of a 2015 rule barring replacement of ozone-depleting substances with hydrofluorocarbons (HFCs), which are powerful greenhouse gases. In Mexichem, the D.C. Circuit vacated the 2015 rule to the extent that it prohibited continued use of HFCs by companies that previously switched to HFCs from an ozone-depleting substance. EPA’s 2018 rule also suspended the prohibition for companies currently using ozone-depleting substances. In ruling on the challenge to the 2018 rule, the D.C. Circuit concluded that the rule was not merely a rule that interpreted Mexichem’s partial vacatur but a legislative rule that “altered the decision’s legal effect” and required notice-and-comment rulemaking. As a threshold matter, the court found that Natural Resources Defense Council (NRDC) and one of the state petitioners (New York) each had standing based on potential injuries from climate change which were caused in part by HFC emissions and which would be redressed by restrictions on such emissions. In addition, the court found that NRDC satisfied requirements for representational standing. The court also rejected the contention that the 2018 rule was not final action. The court noted that the parties agreed that the 2018 rule was the consummation of EPA’s decision-making process, but that EPA and the intervenors argued that it was Mexichem—not the 2018 rule—that determined any legal rights or obligations or effected legal consequences. The D.C. Circuit disagreed, finding that the 2018 rule changed the rights and obligations of companies that continued to use ozone-depleting substances compared to the status quo created by Mexichem. Similarly, in determining that the 2018 rule was legislative and not interpretive, the majority found that the 2018 rule had “independent effect beyond that compelled by Mexichem” and therefore reflected EPA’s “intent to exercise its delegated legislative power.” The dissenting judge would have found that the 2018 rule was an interpretive rule because it “did no more than articulate the EPA’s view of what was required by Mexichem in the ‘near term’ and pending further rulemaking.” Natural Resources Defense Council v. Wheeler, No. 18-1172 (D.C. Cir. Apr. 7, 2020).
DECISIONS AND SETTLEMENTS
Citing Shortcomings in NEPA Analysis of Cumulative Climate and Groundwater Impacts, Montana Federal Court Vacated Oil and Gas Leases
The federal district court for the District of Montana vacated 287 oil and gas leases issued by the U.S. Bureau of Land Management (BLM) in December 2017 and March 2018 because the environmental assessments for the lease sales failed to meet National Environmental Policy Act (NEPA) requirements, including by failing to take a hard look at cumulative climate change impacts. The court said BLM should have catalogued past, present, and reasonably foreseeable actions and analyzed their combined environmental impact but that in this case the four environmental assessments for each of the planning areas did not discuss the other areas even though the EAs covered land sold in the same lease sale. Noting this failure to catalogue even other federal agency projects, the court rejected BLM’s arguments that compliance with NEPA’s cumulative impacts requirements was “impossible.” In addition, the court said neither the “tiering” of the EAs to the resource management plans for the planning areas nor the placing of an individual lease sale’s greenhouse gas emissions in context with statewide and national emissions satisfied cumulative impact requirements. Although the court acknowledged that climate change “certainly poses unique challenges in the cumulative impact analysis,” the court said the “large-scale nature of environmental issues like climate change show why cumulative impacts analysis proves vital to the overall NEPA analysis.” The court stated: “[I]f BLM ever hopes to determine the true impact of its projects on climate change, it can do so only by looking at projects in combination with each other, not simply in the context of state and nation-wide emissions.” In addition to the shortcomings in the cumulative climate impacts analysis, the court found that BLM did not take a hard look at groundwater impacts and failed to provide an adequate explanation for its decision not to consider alternatives suggested by one of the plaintiffs that included groundwater protection measures. WildEarth Guardians v. U.S. Bureau of Land Management, No. 4:18-cv-00073 (D. Mont. May 1, 2020).
Forest Product Companies to Pay $800,000 in Attorney’s Fees and Costs after Dismissal of RICO and Other Claims Against Greenpeace
The federal district court for the Northern District of California ordered a forest product company and affiliated companies to pay Greenpeace defendants more than $800,000 in attorney’s fees and costs after the defendants brought a successful anti-SLAPP (Strategic Litigation Against Public Participation) motion against the companies’ claims that the defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and were liable under state law, including for defamation and tortious interference with prospective and contractual business relations. The forest product company had alleged that Greenpeace’s campaign labeling the company a “Forest Destroyer” and a major contributor to climate change was “malicious, false, misleading, and without any reasonable factual basis.” In 2019, the court dismissed almost all of the companies’ claims, except for a single defamation claim and a related claim under California’s Unfair Competition Law arising from allegations related to a single set of statements. Resolute Forest Products, Inc. v. Greenpeace International, No. 17-cv-02824 (N.D. Cal. Apr. 22, 2020).
Montana Federal Court Vacated Nationwide Permit Due to Corps of Engineers Failure to Initiate Consultation Under Endangered Species Act
In a lawsuit challenging both the reissuance of Nationwide Permit (NWP) 12—which authorizes discharges of dredged or fill material associated with utility lines—and also the NWP 12’s application to the Keystone XL Pipeline, the federal district court for the District of Montana vacated NWP 12 pending completion of the consultation process under the Endangered Species Act. The court found that there was “resounding evidence” in the record that authorized discharges may affect endangered and threatened species and critical habitat and that the U.S. Army Corps of Engineers could not circumvent consultation requirements by relying either on project-level review or on a General Condition in NWP 12 that required non-federal permittees to submit a preconstruction notification to the Corps if a permittee believed an activity might affect listed species or critical habitat. The court said that having remanded to the Corps for consultation under the Endangered Species Act, it was not necessary to determine whether the Corps “made a fully informed and well-considered decision” under NEPA and the Clean Water Act. The court therefore did not address the plaintiffs’ arguments under those statutes, including the argument that the Corps should have considered indirect and cumulative effects of authorized projects’ lifecycle greenhouse gas emissions. The court said it anticipated that the Corps would conduct additional environmental analyses based on the consultation findings. On April 27, the defendants moved for a stay pending appeal of the portion of the court’s order that vacated NWP 12 or at least a stay of vacatur to the extent the order related to projects other than the Keystone XL Pipeline. Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-00044 (D. Mont. Apr. 15, 2020).
Washington Court Upheld Denial of Permits for Coal Export Terminal
The Washington Court of Appeals affirmed a Shorelines Hearings Board’s ruling that upheld the denial of permit application for a coal export terminal. The court rejected the terminal developer’s argument that the Board had erred in concluding that consideration of the project as a whole, instead of just its first phase, was clearly erroneous. The court said the developer’s argument was based on “an impermissible attempt to piecemeal its project” under the Shoreline Management Act of 1971. The court also found that denial of the permit application based on State Environmental Policy Act substantive authority was not clearly erroneous. The court agreed with the Board that there was a basis for exercising such authority. In particular, the court found that conclusion that greenhouse gas emissions constituted a significant impact was not clearly erroneous. Millennium Bulk Terminals-Longview, LLC v. State, No. 52215-2-II (Wash. Ct. App. Mar. 17, 2020).
Ninth Circuit Said EIS Was Required for Forest Thinning Project in Oregon
The Ninth Circuit Court of Appeals reversed a federal district court in Oregon and held that the U.S. Forest Service’s (USFS’s) decision not to prepare an environmental impact statement (EIS) for a forest thinning project in Mount Hood National Forest was arbitrary and capricious. The appellate court found that the USFS had failed to “engage with the considerable contrary scientific and expert opinion” identified in public comments on the environmental assessment (EA) concerning forest thinning’s effectiveness in suppressing wildfires. The Ninth Circuit also said the EA did not sufficiently identify and analyze cumulative impacts. The Ninth Circuit concluded that both of these factors raised “substantial questions” about whether the project would have significant effects and that an EIS was therefore required. The Ninth Circuit did not directly address the issue of the project’s effects on climate change, an issue about which the district court concluded the USFS had undertaken a “thorough examination.” Bark v. U.S. Forest Service, No. 19-35665 (9th Cir. Apr. 3, 2020; request for publication granted May 4, 2020).
Texas Federal Court Dismissed Pro Se Plaintiff’s Action That Asserted Link Between EPA Restrictions on Aerosols and Global Warming
The federal district court for the Northern District of Texas dismissed for lack of standing a lawsuit against the EPA in which an individual pro se plaintiff asserted that EPA restrictions since 1990 on aerosols in the atmosphere had caused global warming. The plaintiff said the restrictions should not be enforced until EPA demonstrated that the restrictions were not causing temperature increases. The district court adopted a magistrate judge’s findings, conclusions, and recommendations, finding that the plaintiff’s allegations of generalized harm failed to establish standing. Field v. EPA, No. 2:19-cv-120 (N.D. Tex. Apr. 29, 2020).
States, Electricity Providers Allowed to Intervene in Case Concerning Management of Glen Canyon Dam
In a case seeking greater consideration of climate change impacts in the management of the Glen Canyon Dam, the federal district court for the District of Arizona determined that six states as well as an association of not-for profit entities, including municipalities, that provide electricity must be permitted to intervene as defendants. With respect to the states (Arizona, California, Colorado, Nevada, Utah and Wyoming), the court noted that the disposition of the case could impede their hydropower and water allocation interests and that the states’ interests overlapped with but were “more parochial” than the federal defendants. With respect to the association, the court noted that many of its members had contracts for hydropower from the Glen Canyon Dam or from downstream dams and that the case could affect dams other than those that concerned a similar association that had already intervened. Save the Colorado v. U.S. Department of the Interior, No. 3:19-cv-08285 (D. Ariz. Apr. 23, 2020).
California Federal Court Denied Preliminary Injunction to Stop Logging Project and Biomass Facility in Rim Fire Area
The federal district court for the Eastern District of California denied a motion for a preliminary injunction in a case challenging federal and state reviews and authorizations of a logging project and biomass energy facility on public forestland that burned during the 2013 Rim Fire. The plaintiffs alleged among other things that the defendants the two projects’ cumulative impacts on carbon emissions. Although the court found that the plaintiffs raised “serious questions” as to whether a decision not to review the biomass facility together with the logging project was arbitrary and capricious, the court found that a preliminary injunction was not warranted because the balance of harms did not tilt sharply in the plaintiffs’ favor. Earth Island Institute v. Nash, No. 1:19-cv-01420 (E.D. Cal. Apr. 21, 2020).
Federal Court Rejected NEPA Claims in Challenge to Gulf of Mexico Leases
A federal district court in the District of Columbia ruled that the Bureau of Ocean Energy Management (BOEM) fulfilled its obligations under NEPA in connection with two offshore oil and gas lease sales in the Gulf of Mexico. First, the court found that BOEM considered a “true” no action alternative, rejecting the plaintiffs’ argument that it was improper to assume that future leasing would result in the same effects under the no action alternative. Second, the court was not persuaded that BOEM’s hard look at impacts was undermined by reliance on safety rules that were being partially repealed and that were allegedly enforced inadequately. Third, the court rejected the argument that a supplemental EIS was necessary due to a reduction in royalty rate that the plaintiffs argued would result in higher levels of development and production than were assessed. Gulf Restoration Network v. Bernhardt, No. 1:18-cv-01674 (D.D.C. Apr. 21, 2020).
Montana Federal Court Said WildEarth Guardians Did Not Have “Failure to Act” Claim to Compel Pipeline Inspections
The federal district court for the District of Montana “reluctantly” concluded that it could not compel the Pipeline and Hazardous Materials Safety Administration (PHMSA) to comply with a Mineral Leasing Act directive to cause inspection of all federal pipelines on federal lands at least once annually. The court found that because PHMSA had “taken some steps, limited as they may be,” to address this statutory obligation, the plaintiff could not bring a challenge under the Administrative Procedure Act’s “failure to act” provision in Section 706(1). WildEarth Guardians v. Chao, No. 4:18-cv-00110 (D. Mont. Apr. 15, 2020).
Federal Court Said Biological Opinion for Lobster Fishery Should Have Included an Incidental Take Statement Due to Impacts on Right Whales
The federal district court for the District of Columbia ruled that a 2014 biological opinion for the American lobster fishery was invalid because the National Marine Fisheries Service did not include an incidental take statement despite finding that the fishery had the potential to harm the endangered North American right whale at more than three times the sustainable rate. The court described the “largest modern threats” to the right whale as ship strikes and fishing-gear entanglement, but the complaint alleged that the biological opinion recognized other threats, including ingestion of plastic debris and global climate change. The court did not address the plaintiffs’ other arguments regarding the inadequacies of the biological opinion and said it would accept briefing from the parties on the scope of an injunctive remedy. Center for Biological Diversity v. Ross, No. 1:18-cv-00112 (D.D.C. Apr. 9, 2020).
Federal Court Dismissed States’ Challenge to Trump Deregulatory Executive Order
The federal district court for the District of Columbia concluded that three states—California, Minnesota, and Oregon—did not have Article III standing to challenge President Trump’s Executive Order 13,771, which, among other things, required federal agencies to identify two existing regulations for repeal for every new regulation proposed, to offset the incremental costs of new regulations by eliminating costs associated with two prior regulations, and to adhere to an “annual cap” that prohibited new regulations that in the aggregate exceed an agency’s “total incremental cost allowance.” The court considered four deregulatory actions or delayed regulatory actions that were the focus of the states’ standing arguments—including the repeal of the Federal Highway Administration’s (FHWA’s) Greenhouse Gas (GHG) Performance Measure and the Department of Energy’s delay in issuing new energy efficiency standards for residential cooking products—and found that the states had not demonstrated that the executive order was the cause of any material delay or any deregulatory action. Regarding the repeal of the FHWA’s GHG Performance Measure, the court found that the existing evidence indicated that “substantive policy considerations” were the basis for repeal even though the executive order precipitated the FHWA’s review of its regulations. (The court also said it was “far from clear” that the states had demonstrated that the repeal would cause particularized harm.) Regarding the delay in energy efficiency standards, the court assumed without deciding that the failure to finalize the standards had contributed to climate change and that the states had suffered injuries related to climate change. The court found, however, that “undisputed” evidence demonstrated that the executive order did not cause the delay. California v. Trump, No. 19-cv-960 (D.D.C. Apr. 2, 2020).
California Appellate Court Rejected Challenges to Long-Term Management Plan for Sacramento-San Joaquin Delta
The California Court of Appeal reversed a trial court’s determination that the Sacramento-San Joaquin Delta Reform Act of 2009 required the Delta Stewardship Council to adopt performance measure targets as legally enforceable regulations in the long-term management plan for the Delta to achieve certain objectives of the Act. The court also agreed with the Council that other violations found by the trial court were moot due to the adoption in 2018 of amendments to the Delta Plan. In addition, the court affirmed the trial court’s rejection of certain other challenges to the Plan, including a claim that aspects of the Plan were not based on best available science. A climate change-related argument rejected by the trial court—that sea level rise projections in the Plan were too high and not based on best available science—did not appear to have been before the appellate court. Delta Stewardship Council Cases, Nos. C082944 & C086199 (Cal. Ct. App. Apr. 10, 2020).
Oregon Supreme Court Directed Changes to Ballot Title for Greenhouse Gas Emissions Reductions
The Oregon Supreme Court agreed with a petitioner that the Attorney General should modify the text of a ballot title that, if adopted by voters, would amend an Oregon statute to require that greenhouse gas emissions from industry and fossil fuel sources be reduced by 100% below 1990 levels by 2050. The current statute provides for an aspirational goal of reducing emissions by 75% below 1990 levels by 2050 and does not create additional regulatory authority for state agencies. The ballot title, on the other hand, would require both adoption of rules to achieve the emissions reduction target as well as enforcement of those rules. The Supreme Court said that due to the placement of a comma, the caption and the “yes” result statement could potentially be misread as requiring elimination of fossil fuels by 2050; the court also said the summary and potentially the caption should be modified to clarify that the mandated greenhouse gas phase-out would occur in two steps. Hurst v. Rosenblum, Nos. SC S067329 & S067333 (Or. Apr. 9, 2020).
Kansas Supreme Court Said Utilities Could Not Charge Distributed Energy Residential Customers Higher Rates
The Kansas Supreme Court held that a rate structure that charged residential utility customers more if they had distributed renewable energy sources was unlawfully discriminatory because it violated a Kansas statute enacted in 1980 that barred utilities from considering the use of renewable energy sources by a customer as a basis for establishing higher rates or charges. The court rejected the argument that a more recently enacted statute governing rate structure conflicted with and preempted the 1980 statute. The court described the concerns that led to policies favoring use of renewable energy sources, including oil and gas shortages and global climate change, and said these policies were “chosen by the policy makers in our Legislature and … cemented in Kansas law.” In re Westar Energy, Inc., No. 120,436 (Kan. Apr. 3, 2020).
California Appellate Court Said Approval of Permits to Drill Was Ministerial, Did Not Require CEQA Review
The California Court of Appeal affirmed a trial court’s determination that California Environmental Quality Act (CEQA) review was not required for the issuance of certain permits to drill by the Division of Oil, Gas, & Geothermal Resources (DOGGR) of the California Department of Conservation because DOGGR’s approvals in this case were ministerial in nature. The petitioners had alleged that the agency failed to consider the cumulative impacts of the permits, including the release of greenhouse gases. The appellate court concluded that “[a]lthough some statutory provisions and regulations reflect that, under other circumstances, DOGGR would ordinarily exercise discretion in making well drilling permit decisions, that was not the case here.” In the “limited and narrow circumstances” of this case, the appellate court found that DOGGR had not exercise discretionary judgment or deliberation “but merely determined in a mechanical fashion whether there was conformity with applicable standards set forth in the regulations and … field rules.” Association of Irritated Residents v. California Department of Conservation, Division of Oil, Gas, & Geothermal Resources, No. F078460 (Cal. Ct. App. Apr. 8, 2020).
California Appellate Court Upheld EIR for Refinery Project
The California Court of Appeal rejected challenges to an environmental impact report (EIR) prepared for an oil refinery project in the Los Angeles area. The petitioners had alleged that the EIR failed to disclose the increase in the amount of crude oil that would be refined at the facility and the full scope of impacts, including direct, indirect, and cumulative greenhouse gas emissions. The appellate court ruled for the respondents on all four issues raised by the petitioners on appeal, including whether a proper baseline was used in the EIR, whether the EIR should have disclosed input crude oil composition, and whether the EIR was required to disclose the existing volume of crude oil the refinery processes as a whole or the refinery’s unused capacity. Communities for a Better Environment v. South Coast Air Quality Management District, No. B294732 (Cal. Ct. App. Apr. 7, 2020; modified opinion Apr. 30, 2020).
California Court of Appeal Said Recent Climate Change Information Did Not Necessitate Additional Consideration of Water Supply
The California Court of Appeal rejected the argument that Los Angeles County needed to prepare supplemental analysis under CEQA of the impacts on water resources of the first two phases of the proposed Newhall Ranch development to take into account recent historic drought, record high temperatures, and “accumulating data” on climate change’s regional and global effects. The appellate court found that the County was “well aware of the threat posed by climate change” when it certified EIRs in 2011 and that post-2011 data were “consistent with the range of projections considered in 2011.” Friends of the Santa Clara River v. County of Los Angeles, No. B296547 (Cal. Ct. App. Apr. 3, 2020).
NEW CASES, MOTIONS, AND NOTICES
Supreme Court Granted Baltimore’s Request for More Time to Response to Petition Seeking Review of Remand Order Due to Burdens Imposed by COVID-19
The U.S. Supreme Court granted Baltimore’s request for a 60-day extension of time to file a response to fossil fuel companies’ petition for a writ of certiorari seeking review of the Fourth Circuit’s affirmance of the remand order in Baltimore’s case. Baltimore said it sought the extension due to the “extraordinary circumstances” of the COVID-19 pandemic, which placed an “enormous unanticipated burden” on Baltimore and its counsel. The fossil fuel companies asked the court to grant only a 30-day extension. Their letter to the Court noted that Baltimore was actively litigating the case in state court and that “nearly identical” cases were pending in other state courts. The companies noted that they had filed their petition “expeditiously” and that allowing a 60-day extension instead of a shorter extension would delay consideration of the petition until the next term. The Court granted Baltimore’s request without comment, setting a deadline of June 29, 2020 for the filing of a response. Four amicus briefs were filed in support of the companies’ certiorari petition by the U.S. Chamber of Commerce, the National Association of Manufacturers, the nonprofit organization Energy Policy Advocates, and 13 states. In state court, motions to dismiss for failure to state a claim and for lack of personal jurisdiction were filed in February, and the United States filed a motion for leave to file an amicus brief in support of the motion to dismiss. On April 15, Baltimore filed its opposition to the motion to dismiss, reportedly responding to a First Amendment defense by arguing that “[n]o law authorizes misleading and deceptive marketing of products that the manufacturer or marketer knows to be dangerous; and no law authorizes a multi-decade campaign of deceit to undermine public confidence in climate-related science to prolong or increase the use of the companies’ products at the expense of other, safer alternatives.” BP p.l.c. v. Mayor & City of Baltimore, No. 19-1189 (U.S. Apr. 24, 2020).
Oral Argument Held in Companies’ Appeal of Remand Order in Colorado Localities’ Suit; Localities Argued for Summary Affirmance Based on Fourth Circuit Decision
The Tenth Circuit heard oral argument telephonically on May 6, 2020 in the fossil fuel companies’ appeal of the remand order in the climate change lawsuit brought by the City and County of Boulder and San Miguel County. On April 24, the plaintiffs-appellees moved for summary affirmance of the remand order, arguing that the doctrine of collateral estoppel barred Exxon Mobil Corporation (Exxon) from relitigating the issues of the scope of appellate jurisdiction and the merits of federal-officer removal because the Fourth Circuit decided these issues against Exxon in Baltimore’s lawsuit. The plaintiffs-appellees also argued that although collateral estoppel did not apply against the other defendants—who are not defendants in Baltimore’s lawsuit—the other defendants lack an independent basis for appeal since they did not raise their own federal-officer argument. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 19-1330 (10th Cir.).
Challenge to Amended Vehicle Emission and Fuel Economy Standards Filed in D.C. Circuit; Petitioners Sought More Time for Briefing in Challenge to Earlier Preemption Actions
Competitive Enterprise Institute (CEI) filed a petition for review in the D.C. Circuit challenging EPA and the National Highway Traffic Safety Administration’s final rule amending the greenhouse gas and fuel economy standards for passenger cars and light trucks. In its petition, CEI asserted that the final rule—which the agencies titled the “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule”—was based on inadequate consideration of the amended standards’ adverse traffic safety impacts. The final rule was publishedin the Federal Register on April 30, and additional challenges are expected in the near future. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir., filed May 1, 2020).
In related proceedings challenging EPA and NHTSA actions that preempted state regulations of greenhouse gas emission standards, on May 4 petitioners requested that the D.C. Circuit set a briefing schedule with the opening briefs due on July 21 and briefing completed on November 23. The proposed schedule would move the opening brief deadline approximately two months later than the deadline originally proposed jointly by the parties in early March. In April, the petitioners had requested a schedule that would require opening briefs to be filed in June, but the petitioners’ May request asked for additional time “[i]n light of the lengthy and extraordinary effects of the COVID-19 pandemic” on the petitioners and their counsel, as well as due to new briefing obligations in another case for one lawyer. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir.).
Briefs Filed in Challenges to ACE Rule and Clean Power Plan Repeal
Petitioners and amicus parties in the lawsuits challenging the repeal of the Clean Power Plan and its replacement with the Affordable Clean Energy (ACE) Rule filed briefs in the D.C. Circuit. Arguments in the briefs filed by Public Health and Environmental Petitioners and State and Municipal Petitioners included that EPA had unreasonably determined that the “best system of emission reduction” for power plants could not include shifting generation to less-polluting plants; that the ACE Rule improperly repealed regulations for gas- and oil-fired plants without instituting new regulations; and that EPA unlawfully failed to establish a minimum degree of emission limitation to be incorporated in standards of performance. The initial briefs of Clean Energy Associations and Power Company Petitioners largely focused on arguments against EPA’s limitations on generation-shifting, while petitioner Biogenic CO2 Coalition argued that the ACE Rule improperly prevented power plants from counting the co-firing of biomass as a compliance measure. In addition, Coal Industry Petitioners and another set of petitioners with members that included companies in the petroleum, trucking, forest products, and other industries, as well as individuals and nonprofit organizations, filed briefs arguing that EPA could not regulate carbon dioxide emissions from existing power plants under Section 111. Individuals, companies, and organizations filed 18 amicus briefs in support of the Public Health and Environmental Petitioners, State and Municipal Petitioners, Clean Energy Associations, and Power Company Petitioners. The amicus parties included climate scientists, administrative law professors, members of Congress, the co-leader of the Interagency Working Group that developed the Social Cost of Carbon methodology, the principal staff drafter of the 1970 Clean Air Act Amendments, outdoor gear companies, a coalition of local governments and officials and municipal organizations, Service Employees International Union, medical groups, and faith organizations. All of the briefs are available on the case page. American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir.).
Organizations Challenged FERC Approval of Natural Gas Projects in Massachusetts
Two organizations filed a petition in the D.C. Circuit Court of Appeals for review of the Federal Energy Regulatory Commission’s granting of a certificate authorizing construction and operation of the 261 Upgrade Project, a set of projects in southern Massachusetts to increase transportation capacity on the existing Tennessee Gas Pipeline system. The petition said FERC arbitrarily and capriciously departed from D.C. Circuit precedent regarding how FERC should evaluate greenhouse gas emissions from fossil fuel production and transportation projects. Food & Water Watch v. Federal Energy Regulatory Commission, No. 20-1132 (D.C. Cir., filed Apr. 21, 2020).
EPA Told D.C. Circuit that Final Amendments to Greenhouse Gas New Source Performance Standards Were Anticipated in Summer 2020
On April 24, 2020, the U.S. Department of Justice (DOJ) filed a status report in the proceedings challenging the Obama administration’s new source performance standards for greenhouse gas emissions from new, modified, and reconstructed power plants. The proceedings have been held in abeyance since August 2017 while EPA considers whether and how to amend the regulations. In the status report, DOJ said EPA’s work had been slowed by the COVID-19 pandemic, but that EPA intended and expected to be in a position to take final action on its proposed amendments to in the summer of 2020. North Dakota v. EPA, Nos. 15-1381 et al. (D.C. Cir. Apr. 24, 2020).
States, Nonprofit Groups Challenged Department of Energy Procedures for Appliance Energy Conservation Standards
Thirteen states, New York City, and the District of Columbia filed a petition for review in the Ninth Circuit seeking review of the U.S. Department of Energy’s final rule establishing procedures for new or revised energy conservation standards and test procedures for consumer products and commercial/industrial equipment. Six organizations led by Natural Resources Defense Council filed a separate petition for review in the Ninth Circuit. Natural Resources Defense Council, Inc. v. Brouillette, No. 20-71071 (9th Cir., filed Apr. 14, 2020); California v. U.S. Department of Energy, No. 20-71068 (9th Cir., filed Apr. 14, 2020).
WOTUS Rule Challenges Raised Climate Change Concerns
At least two of the lawsuits filed to challenge EPA’s new definition of “waters of the United States” (WOTUS) raised issues related to climate change. The complaint filed by 17 states, the District of Columbia, and New York City in the Northern District of California asserted that the final rule’s “typical year” requirement—which the rule uses to define when tributaries, lakes, ponds, and impoundments are jurisdictional waters—did not take into account future changes due to climate change to the extent that the definition of typical year was based on “a rolling average of past data.” Similarly, the complaint filed by environmental groups in the District of Massachusetts alleged that the “typical year” would “skew towards historical conditions that may no longer accurately represent today’s climate.” California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal., filed May 1, 2020); Conservation Law Foundation v. EPA, No. 1:20-cv-10820 (D. Mass., filed Apr. 29, 2020).
Lawsuit Filed Challenging Corps Permits for Docking Facility for LNG Transport
Delaware Riverkeeper Network and the Delaware Riverkeeper filed a lawsuit challenging a permit issued by the U.S. Army Corps of Engineers for a docking facility in New Jersey to transport liquefied natural gas (LNG) to docked vessels. The plaintiffs asserted claims under the National Environmental Policy Act, the Clean Air Act, the Administrative Procedure Act, and Corps regulations. Among other things, the plaintiffs alleged that the Corps’ public interest review “was arbitrary and capricious because it did not give sufficient weight and analysis to climate change impacts and safety concerns.” Delaware Riverkeeper Network v. U.S. Army Corps of Engineers, No. 1:20-cv-04824 (D.N.J., filed Apr. 22, 2020).
WildEarth Guardians Asked Court to Compel Final Listing Determinations on Five Species
WildEarth Guardians filed a lawsuit in federal district court in the District of Columbia asserting that the U.S. Fish and Wildlife Service had violated the Endangered Species Act and the Administrative Procedure Act by failing to make final determinations on the organization’s petitions to list five aquatic species that inhabit western rivers and riparian ecosystems. The complaint alleged that climate change was one of the factors threatening the existence of three of the species. WildEarth Guardians v. Bernhardt, No. 1:20-cv-01035 (D.D.C., filed Apr. 21, 2020).
U.S. Sought Summary Judgment on Foreign Affairs Doctrine Claim in Challenge to California-Quebec Greenhouse Gas Agreement
In its lawsuit challenging California’s agreements with Quebec regarding linkages between their greenhouse gas cap-and-trade programs, the United States filed a motion seeking summary judgment motion on its claim that the agreements violated the Foreign Affairs Doctrine. The U.S. argued that the agreements and related arrangements conflicted with and were an obstacle to U.S. foreign policy, including the U.S.’s decision not to participate in the Paris Agreement. The U.S. further contended that even if California’s activities did not conflict with U.S. foreign policy, they concerned an area of foreign affairs over which the federal government had exclusive domain. The United States also sought dismissal of its Foreign Commerce Clause claim, which the U.S. said was largely duplicative of the Foreign Affairs Doctrine claim. United States v. California, No. 2:19-cv-02142 (E.D. Cal. Apr. 20, 2020).
Environmental Groups Said Endangered Species Act Consultation Was Required for Operation of Spillway
Defenders of Wildlife and Healthy Gulf filed a federal lawsuit in the Southern District of Mississippi claiming that the U.S. Army Corps of Engineers and the Mississippi River Commission were failing to comply with the Endangered Species Act (ESA) in connection with its operation of the Bonnet Carré Spillway, a flood-control mechanism on the lower Mississippi River. The plaintiffs alleged that the agencies had never completed formal or informal consultation under the ESA to consider the impact of diversions on nine threatened and endangered species that inhabit the bodies of water into which the spillway diverts water to reduce flooding in New Orleans. The complaint states: “As more extreme storms and varied weather increase the number and intensity of floods in the lower Mississippi River valley region, it is likely that the Spillway will be opened more frequently and for increasingly longer duration in the future. This in turn will increase the frequency and duration that imperiled species and habitats are subjected to Spillway water pollutants and other impacts.” Defenders of Wildlife v. U.S. Army Corps of Engineers, No. 1:20-cv-00142 (S.D. Miss., filed Apr. 15, 2020).
BLM Asked Court for Voluntary Remand to Conduct Additional Analysis for Grand Junction Resource Management Plan
The U.S. Bureau of Land Management (BLM) moved for voluntary remand without vacatur of its decision approving the Grand Junction Resource Management Plan (RMP) so that it could prepare additional analysis under the National Environmental Policy Act. BLM said it intended to prepare supplemental analysis based on review of a 2018 decision in another case—Wilderness Workshop v. BLM—that involved a planning area with resource similarities. The court in the other case found that BLM failed to take a hard look at the RMP’s indirect impacts, and the parties subsequently agreed to partial remand without vacatur. The plaintiffs in the Grand Junction RMP case objected to the “vague and open-ended terms” of the proposed voluntary remand and asked the court to require, among other things, that the additional analysis be prepare in an supplemental environmental impact statement and that its scope include indirect and cumulative emissions. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:19-cv-02869 (D. Colo. Apr. 8, 2020).
Lawsuit Challenged Water Diversion Project in California, Including for Failure to Evaluate Climate Change Impacts
Four organizations filed a lawsuit against the California Department of Water Resources seeking to vacate the agency’s approval of the Long-Term Operation of the State Water Project, which the petitioners alleged “diverts large quantities of fresh water from the Sacramento River and San Joaquin River watersheds and the San Francisco Bay-Delta estuary for export” and “significantly degrades environmental conditions” in the watersheds and estuary. The petition asserted violations of the Delta Reform Act, the California Environmental Quality Act, and the public trust doctrine. The petition alleged, among other issues, that the environmental impact report failed to adequately analyze the implications of climate change on the project’s water deliveries and the project’s cumulative impacts in light of climate change. Sierra Club v. California Department of Water Resources, No. ___ (Cal. Super. Ct., filed Apr. 29, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
British Court Declined to Block Railway Project on Climate Grounds
On April 6, 2020, a British court rejected an attempt to halt a railway project on the ground that the project assessment had not adequately considered greenhouse gas emissions.
Environmental campaigner Christopher Packham filed suit on March 27, 2020 to challenge the U.K. Secretary of State for Transport’s decision to approve the HS2 rail project, a national high-speed railway network to connect London, Birmingham, Manchester, and Leeds. The claimant sought an interim injunction to prevent imminent clearance works in six different woodlands. He brought a number of claims related to a report analyzing “whether and how HS2 should proceed.” The claimant alleged, among other things, that the report failed to properly account for expected greenhouse gas emissions during construction of the project; and failed to address the project’s effects on greenhouse gas emissions during the period leading up to 2050, and not just in 2050 and beyond, in accordance with the Paris Agreement and the Climate Change Act 2008. At an April 3 hearing, the court determined that claimant did not have a realistic prospect of success. On April 6, the court issued written reasons for its decision. The court rejected all claims, including the claim based on greenhouse gas emissions.
The court first explained that the report at issue did adequately consider greenhouse gas emissions by assessing the short-term impacts of construction as well as the longer-term effects of providing a mode of transport that is less carbon-intensive than alternatives, such as aviation. The court also rejected the claimant’s assertion that the report misrepresented a study by the project’s “nominated undertaker” by failing to convey that construction emissions would not be at the “low emissions” end of the possible range. The court reasoned that the study simply gave a range of possible greenhouse gas emissions that the report fairly summarized. The court concluded that the defendants, therefore, did not fail to take into account a relevant factor that they were legally required to consider.
Second, the court dismissed the claimant’s argument that both the report assessing H2S and the decision to approve the project failed to address the importance of greenhouse gas emissions in the period leading up to 2050, which is referred to in the Paris Agreement. The court reasoned that the report did consider the effects of the project before and after 2050 resulting from construction and the first 60 years of operation. The court distinguished Plan B Earth v. Secretary of State, in which the Secretary of State admitted that he had not considered the Paris Agreement in approving the expansion of Heathrow Airport. Packham v. Secretary of State for Transport,  EWHC 289 (Admin) (High Court of Justice, Queen’s Bench Division).
Australian Bushfire Survivors Sued New South Wales Environmental Protection Agency for Climate Action
On April 20, 2020, Bushfire Survivors for Climate Action brought a civil enforcement proceeding to compel the New South Wales Environmental Protection Authority to regulate greenhouse gas emissions. The plaintiffs, represented by the New South Wales Environmental Defenders Office, are Australians who allege that they have been harmed by bushfires made likely or more intense by climate change. According to news reports, the case was brought under the New South Wales Protection of the Environment Operations Act 1997, which requires the Environmental Protection Authority to “develop environmental quality objectives, guidelines and policies to ensure environment protection.” Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority (New South Wales Land and Environment Court).
Dutch Court Will Hold Open Hearings in Climate Case Against Shell
On Monday, April 5th, 2019, the environmental group Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations. The case was filed in the Hague Court of Appeals. The plaintiffs seek a ruling from the court that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Climate Agreement.
This case builds on the landmark Urgenda decision, which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens. Plaintiffs seek to extend this principle to private companies, arguing that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its greenhouse gas emissions.
According to Friends of the Earth, on 1 September and 30 October 2020, all parties will provide their evidence for factual and legal justification. At the same time, the judge will clarify which questions the parties should explore in greater depth during the hearings. There will then be four days of hearings on 1, 3, 15 and 17 December 2020. The hearings will be open to the public. Milieudefensie, et al. v. Royal Dutch Shell, plc. (Hague District Court).
Luxembourg Pension Fund Will Report on Carbon Footprint Following Action by Greenpeace
In September 2019, Greenpeace Luxembourg brought an action in administrative court against the Luxembourgish Minister of Social Security, Roman Schneider. Greenpeace claims that the Minister failed to respond to an August letter asking for information regarding how Luxembourg’s sovereign pension fund planned to align its investments with the objectives of the Paris Agreement, and information on the climate-related financial risks associated with the fund’s investments.
According to Greenpeace, in December 2019 an administrative judge ruled that the claim was admissible because Minister Schneider failed to comply with his legal obligation to respond to the letter, and the information sought was covered by the Law on Access to Environmental Information. However, the judge found no legal basis for requiring the Minister to comply with the Paris Agreement or to have the climate-related information that Greenpeace requested. Greenpeace reports that in March 2020, the president of the sovereign pension fund promised in a letter addressed to Greenpeace Luxembourg that the fund will deliver a sustainability report in the third quarter of 2020, including a detailed analysis of the carbon footprint and the climate-related financial risks of the fund’s investments. Greenpeace Luxembourg v. Schneider (Luxembourg Administrative Court).