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 firstname.lastname@example.org.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 134.
Ninth Circuit Ruled for California Cities and Counties on Questions of Whether Climate Lawsuits Against Energy Companies Belonged in State or Federal Court
In two opinions, the Ninth Circuit Court of Appeals ruled against energy companies that had removed to federal court cases brought by California local governments seeking compensation for climate change impacts. In an appeal by Oakland and San Francisco of a district court’s denial of remand in, and dismissal of, their suits, the Ninth Circuit reversed the federal district court’s determination that federal-question jurisdiction provided a basis for removal. The Ninth Circuit remanded for the district court to determine whether there was an alternative basis for jurisdiction. In the energy companies’ appeal of a district court’s remand order in cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit concluded first that its jurisdiction to review was limited to whether the cases were properly removed under the federal-officer removal statute and then that the companies had not proved that federal-officer removal could be invoked.
In the Oakland and San Francisco decision, the Ninth Circuit held that the cities’ state-law claim for public nuisance did not arise under federal law because no exception to the “well-pleaded complaint rule” applied. First, the Ninth Circuit found that the cities’ nuisance claim did not raise “a substantial federal question.” The court noted that the companies had contended that the nuisance claim implicated “federal interests” such as energy policy, national security, and foreign policy, but the court said this was not sufficient to establish federal-question jurisdiction even though the question of whether the companies should be held liable and be compelled to abate harms was “no doubt an important policy question.” Second, the Ninth Circuit rejected the companies’ argument that the Clean Air Act completely preempted the cities’ public nuisance claim. The Ninth Circuit also rejected the companies’ argument that the cities waived their arguments in favor of remand by amending their complaint to add a federal common law claim; the Ninth Circuit said the cities’ reservation of rights was sufficient. The Ninth Circuit also rejected the companies’ contention that improper removal could be excused based on “considerations of finality, efficiency, and economy.” The Ninth Circuit concluded that dismissal for failure to state a claim at the pleading stage did not warrant departure from the general rule that a case must be fit for federal adjudication at the time of removal. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir. May 26, 2020).
In the decision in the cases brought by the County of San Mateo and other counties and cities, the Ninth Circuit rejected the energy companies’ arguments in favor of plenary review of the remand order. First, the Ninth Circuit was not persuaded by the companies’ contention that the district court had remanded based on a merits determination, not based on subject matter jurisdiction. Second, the Ninth Circuit found that under its existing precedent, it had jurisdiction to review the issue of federal-officer removal but not the portions of the remand order that considered seven other bases for removal. The Ninth Circuit concluded that Congress’s enactment of the Removal Clarification Act of 2011 did not abrogate this precedent. The Ninth Circuit also rejected the companies’ argument that it was not bound by its own precedent because the decision was not well reasoned; the court said it remained bound by the precedent “until abrogated by an intervening higher authority.” The Ninth Circuit then conducted a de novo review of the issue of subject matter jurisdiction under the federal-officer removal statute. The appellate court found that the energy companies had not proven by a preponderance of the evidence that they were “acting under” a federal officer in any of the three agreements with the government on which the companies relied for federal-officer removal jurisdiction. The Ninth Circuit therefore affirmed the district court’s determination that there was no federal-officer removal jurisdiction and dismissed the remainder of the appeal for lack of jurisdiction. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. May 26, 2020).
DECISIONS AND SETTLEMENTS
Ninth Circuit Declined to Stay Orders Enjoining Authorization of New Oil and Gas Pipelines Under Nationwide Permit
The Ninth Circuit Court of Appeals denied emergency motions for partial stay pending appeal of the District of Montana’s orders vacating Nationwide Permit (NWP) 12 as it applies to Keystone XL Pipeline and other oil and natural gas pipelines. The Ninth Circuit found that the appellants—the Corps, the pipeline developers, and trade groups—had not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm. In April, the district court ruled that the U.S. Army Corps of Engineers violated the Endangered Species Act when it issued NWP 12; the court enjoined authorization of any dredge and fill activities under NWP 12, which applies to utility projects. On May 11, 2020, the district court modified its injunction to apply only to new oil and gas pipeline construction, which the court said was the type of project likely to pose the greatest threat to listed species. The May 11 order also denied motions for partial stay pending appeal. Northern Plains Resource Council v. U.S. Army Corps of Engineers, Nos. 20-35412 et al. (9th Cir. May 28, 2020).
Eighth Circuit Affirmed Bankruptcy Discharge of Climate Claims Against Coal Company
The Eighth Circuit Court of Appeals upheld a district court judgment that affirmed a bankruptcy court’s determination that California municipalities’ climate change-based common law and statutory nuisance claims against the coal company Peabody Energy Corporation (Peabody) were discharged during Peabody’s bankruptcy proceeding. The Eighth Circuit found that the district court did not abuse its discretion in finding that the bankruptcy plan’s exemptions for governmental claims brought “under any applicable Environmental Law” or “under any … applicable police or regulatory law.” The Eighth Circuit also rejected the municipalities’ argument that their public-nuisance claim asserted on behalf of the people of California was not a claim under bankruptcy law because it only entitled them to equitable relief. In addition, the Eighth Circuit agreed with the bankruptcy court all of the municipalities’ claims were directed at Peabody’s pre-bankruptcy conduct and therefore did not survive the bankruptcy. County of San Mateo v. Peabody Energy Corp. (In re: Peabody Energy Corp.), No. 18-3242 (8th Cir. May 6, 2020).
Ninth Circuit Upheld District Court’s Determination that Oakland Could Not Bar Coal Operations at Terminal
In a split opinion, the Ninth Circuit Court of Appeals affirmed a district court ruling that invalidated a City of Oakland resolution adopted in 2016 that applied a new ordinance barring coal-related operations at bulk material facilities to a rail-to-ship terminal being developed at a former army base. The Ninth Circuit found that the district court had not clearly erred when it found that adoption of the resolution violated a 2013 agreement between the City and the developer of the terminal. The development agreement provided that existing regulations would apply to the facility unless the City determined “based on substantial evidence” that failure to apply new regulations “would place existing or future occupants or users of the Project, adjacent neighbors, or any portion thereof, or all of them, in a condition substantially dangerous to their health or safety.” The district court—which allowed the developer to present evidence that had not been before the City Council—determined that Oakland breached the agreement because the City lacked substantial evidence that the coal operations posed a substantial health or safety danger. On the “pivotal” issue of standard of review, the Ninth Circuit concluded that the case should be reviewed as a breach of contract case, with deference given to the district court’s findings, instead of as an administrative law proceeding in which the court would grant deference to the City’s health and safety findings. The Ninth Circuit then found that the district court’s factual findings regarding the inadequacies in Oakland’s determinations regarding particulate emissions and other harms associated with coal operations were not clearly erroneous. The Ninth Circuit did not address greenhouse gas emissions or global warming, which the district court had briefly discussed and rejected as a legitimate basis for the coal ban. The Ninth Circuit also held that the district court did not abuse its discretion in denying environmental groups’ motion to intervene as of right. The appellate court upheld the district court’s determination that the groups’ contention that the development agreement was invalid was outside the scope of their permissive intervention and also rejected their argument that the agreement’s restriction on new regulations was limited to land-use regulations. The dissenting judge would have reversed because in his view the trial court erred by admitting evidence about the health and safety effects of coal handling that was not submitted to the City. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, Nos. 18-16105 & 16-16141 (9th Cir. May 26, 2020).
Supreme Court Declined to Consider Cases Raising “Point of Obligation” Issue in Renewal Fuels Program
The U.S. Supreme Court denied a petition for writ of certiorari seeking review of the D.C. Circuit’s decisions in three cases that concerned the U.S. Environmental Protection Agency’s (EPA’s) annual determination of obligations in the Renewable Fuel Standard program. American Fuel & Petrochemical Manufacturers and Valero Energy Corporation had sought the Court’s review of the issue of whether EPA was required to consider the appropriate “point of obligation”—the parties to whom the obligations should apply (refineries, blenders, or importers)—on an annual basis. Valero Energy Corp. v. EPA/, No. 19-835 (U.S. May 18, 2020).
Massachusetts Federal Court Provided Rationale for Sending Climate Change-Based Fraud Case Against Exxon Back to State Court
The federal district court for the District of Massachusetts issued a decision explaining the rationale for its March 18, 2020 order remanding Massachusetts’s fraud case against Exxon Mobil Corporation (Exxon) to state court. In its lawsuit, Massachusetts asserts causes of action under the Massachusetts Consumer Protection Act based on allegations that Exxon knew for decades that greenhouse gas emissions from fossil fuels were contributing to climate change, that Exxon downplayed the risks of climate change, and that Exxon deceived investors and consumers with misrepresentations concerning the company’s products and its management of climate change risks. The district court found that Massachusetts’s well-pleaded complaint pleaded only state law claims, “which are not completely preempted by federal law and do not harbor an embedded federal question.” In doing so, the court rejected Exxon’s contention that federal common law governed and completely preempted state law claims; the court found that the complaint’s allegations were “far afield of any ‘uniquely federal interests.’” The court also rejected Exxon’s arguments that the federal-officer removal statute or the Class Action Fairness Act provided a basis for jurisdiction. Massachusetts v. Exxon Mobil Corp., No. 1:19-cv-12430 (D. Mass. May 28, 2020).
Federal Court Allowed Addition of Climate Change Documents to Administrative Record in NEPA Challenge to Fuel-Reduction Project
The federal district court for the Eastern District of California allowed plaintiffs challenging a fuel-reduction project in Shasta-Trinity National Forest to supplement the administrative record in support of a claim that the U.S. Forest Service should have considered greenhouse gas emissions in assessing whether to prepare a supplemental environmental impact statement pursuant to the National Environmental Policy Act (NEPA). The two documents that the court allowed to be added to the record were a “Forest Carbon” chapter in a 2016 update to the Forest Service’s Resource Planning Act Assessment and a 2016 Forest Service document that described how to account for climate change when conducting a NEPA analysis. Because the documents did not exist at the time the Forest Service issued its record of decision in 2013, the court denied the plaintiffs’ request to add the documents to the record for their claim that the Forest Service failed to take a hard look. Conservation Congress v. U.S. Forest Service, No. 2:13-cv-00934 (E.D. Cal. May 28, 2020).
EPA Ordered to Produce Computer Model Used for Greenhouse Gas Vehicle Standards by June 7
After the Second Circuit issued the mandate to implement its April 1 ruling that EPA was required to disclose a component of a computer model used by EPA to evaluate greenhouse gas vehicle standards, the federal district court for the Southern District of New York ordered EPA to produce the model to Natural Resources Defense Council and Environmental Defense Fund by June 7, 2020. The environmental organizations sought unsuccessfully to expedite issuance of the mandate to give them more time to review the model in order to make a decision regarding whether to file a petition for administrative reconsideration of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule promulgated by EPA and the National Highway Traffic Safety Administration in late April. (Litigation challenging the SAFE Vehicles Rules is discussed below.) Although the Second Circuit did not expedite the mandate, the district court granted their request that EPA be given 10 days after issuance of mandate to produce the model. Natural Resources Defense Council v. EPA, No. 1:18-cv-11227 (S.D.N.Y. May 28, 2020).
Montana Federal Court Said Issuance of EA and FONSI for Lifting of Moratorium on Coal Program Remedied NEPA Violations
The federal district court for the District of Montana found that the U.S. Department of the Interior, the Secretary of the Interior, and the U.S. Bureau of Land Management (BLM) had complied with the court’s previous order requiring them to initiate the NEPA process in connection with the Trump administration’s lifting of the moratorium on the federal coal leasing program. Secretary of the Interior Sally Jewell instituted the moratorium in January 2016 and directed BLM to prepare a programmatic environmental impact statement for the federal coal program that addressed climate change, among other issues. After the court’s previous order, BLM in February 2020 issued a final environmental assessment (EA) and finding of no significant impact (FONSI); the court noted that the EA’s analysis was based on analysis of the impacts of resuming coal lease processing 24 months earlier and that the FONSI “relies heavily on the fact that the [moratorium] disrupted a 40-year framework for coal leasing, and the finite nature of the [moratorium], together with the NEPA review of individual leases limited the effects” of lifting the moratorium. The court rejected the plaintiffs’ contention that the final EA and FONSI did not remedy the NEPA violations identified by the court. Although the court declined to engage in a substantive review of the EA and FONSI “without a new complaint and administrative record to review,” it said the plaintiffs “remain free to challenge the sufficiency of the NEPA analysis.” Citizens for Clean Energy v. U.S. Department of the Interior, No. CV-17-30 (D. Mont. May 22, 2020).
Federal Court Said States Had Standing to Challenge Endangered Species Act Regulations; Organizational Plaintiffs Did Not
The federal district court for the Northern District of California ruled that state plaintiffs had adequately alleged facts to invoke federal jurisdiction in their lawsuit challenging amendments of the Endangered Species Act regulations. The court found that the states had alleged injury-in-fact, causation, and redressability and that their claims were both constitutionally and prudentially ripe. The states’ challenges to the regulations include that the amendments violate the Endangered Species Act’s plain language and purpose, including by limiting designation of unoccupied critical habitat where climate change poses threats to habitat. In two other cases challenging the amendments, the court found that the organizational plaintiffs had not demonstrated injury-in-fact to their members or that they suffered direct injury. California v. Bernhardt, No. 4:19-cv-06013 (N.D. Cal. May 18, 2020); Animal Legal Defense Fund v. Bernhardt, No. 4:19-cv-06812 (N.D. Cal. May 18, 2020); Center for Biological Diversity v. Bernhardt, No. 4:19-cv-05206 (N.D. Cal. May 18, 2020).
Florida Court Dismissed Suit Seeking to Compel Climate Action Under Florida Constitution and Common Law
At the end of a videoconference hearing on June 1, 2020, a judge in Florida Circuit Court announced that he would dismiss a lawsuit filed in 2018 by youth plaintiffs alleging that the State of Florida and state officials and agencies violated their fundamental rights to a stable climate system under Florida common law and the Florida constitution. The judge reportedly concluded that the plaintiffs sought relief that it would not be appropriate for a court to provide, but he stated that “I don’t want anyone to think I am diminishing what your clients’ concerns are. I think they’re legitimate.” The judge also said he would write his ruling so that it would be ripe for appeal. Reynolds v. Florida, No. 37 2018 CA 000819 (Fla. Cir. Ct. June 1, 2020).
Climate Scientist Must Pay Attorney’s Fees After Bringing Defamation Suit Regarding Publication of Article
The D.C. Superior Court granted defendants’ motions for attorney’s fees and costs in a defamation lawsuit brought by a climate scientist in connection with the publication of an article written by one of the defendants that evaluated an article published by the plaintiff. The other defendant was the publisher of the journal in which the article appeared. The plaintiff voluntarily dismissed his action approximately five months after filing it and two days after a hearing on the defendants’ special motion to dismiss pursuant to the D.C. Anti-SLAPP (Strategic Litigation Against Public Participation) Act. The court found that the defendants were entitled to attorney’s fees because the D.C. Anti-SLAPP Act covered the plaintiff’s claims, a jury could not reasonably find that the claims were supported, and the plaintiff’s attempts to obtain corrections in the article before filing suit did not constitute special circumstance that made a fees award unjust. Jacobson v. Clack, No. 2017 CA 006685 B (D.C. Super. Ct. Apr. 20, 2020).
NEW CASES, MOTIONS, AND NOTICES
Proceedings Filed in D.C. Circuit to Challenge Relaxation of Vehicle Standards; Briefing Schedule Set for Challenges to EPA and NHTSA’s Earlier Preemptive Actions
Petitioners that included 23 states, five cities, and 12 environmental and consumer organizations filed petitions for review in the D.C. Circuit Court of Appeals challenging the EPA and National Highway Traffic Safety Administration’s promulgation of the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks, which relaxed greenhouse gas (GHG) emission and fuel economy (CAFE) standards for light-duty vehicles. The states and cities and most of the organizations also sought review of EPA’s 2018 Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles, which the D.C. Circuit previously held was not final agency action. Other petitioners challenging the relaxation of the standards included air quality management districts in California, the National Coalition for Advanced Transportation (a coalition of companies that supports policies to promote electric vehicles and technologies), Advanced Energy Economy (a trade association supporting technologies including energy efficiency, demand response, renewable energy, and other technologies), and a number of utilities.
Several days earlier, a trade association which said it represented manufacturers of 99% of cars and light trucks sold in the U.S. filed a motion to intervene in support of EPA and NHTSA in a challenge to the vehicle standards previously filed by the Competitive Enterprise Institute (CEI) and other petitioners. The trade association said the challenge by the CEI petitioners, who wished to freeze the standards at Model Year 2018 levels, conflicted with the association’s “substantial interest … in ensuring that increases in the stringency of the GHG and CAFE standards are implemented in a reasonable and steadily increasing manner.” On May 29, 20 states, two cities, and several air quality management districts in California sought leave to intervene in support of the respondents in CEI’s proceeding to oppose any arguments that the agencies should have adopted weaker standards. The public interest organization petitioners filed a similar motion on June 1. All of the documents in these consolidated proceedings are posted on the page for Competitive Enterprise Institute v. NHTSA, No. 20-1145 (D.C. Cir.). California v. Wheeler, No. 20-1167 (D.C. Cir., filed May 27, 2020); Natural Resources Defense Council, Inc. v. Wheeler, No. 20-1168 (D.C. Cir., filed May 27, 2020); Environmental Defense Fund v. Owens, No. 20-1169 (D.C. Cir., filed May 27, 2020); South Coast Air Quality Management District v. National Highway Traffic Safety Administration, No. 20-1173 (D.C. Cir., filed May 28, 2020); National Coalition for Advanced Transportation v. EPA, No. 20-1174 (D.C. Cir., filed May 28, 2020); Advanced Energy Economy v. Wheeler, No. 20-1176 (D.C. Cir., filed May 28, 2020); Calpine Corp. v. EPA, No. 20-1177 (D.C. Cir., filed May 28, 2020).
In related proceedings that challenged EPA and NHTSA’s earlier regulatory actions preempting state regulation of greenhouse gas emissions from vehicles, the D.C. Circuit issued an order setting a briefing schedule. The petitioners’ opening briefs are due June 26, several weeks earlier than the petitioners’ requested but two weeks later than the briefs would have been due under the schedule endorsed by the respondents. Briefing will be complete on October 27, 2020. The D.C. Circuit also referred the petitioners’ motion to complete the administrative record to the merits panel and directed the parties to address the issues presented in the motion in their briefs. The motion seeks to have EPA’s record include public comments and supporting documents that were submitted after the comment deadline. Union of Concerned Scientists v. National Highway Traffic Safety Administration, Nos. 19-1230 et al. (D.C. Cir. May 20, 2020).
Lawsuits Challenged FERC Approvals for Jordan Cove LNG Export Terminal
Environmental groups, tribes, and landowners filed petitions for review in the D.C. Circuit Court of Appeals challenging Federal Energy Regulatory Commission (FERC) orders authorizing the Jordan Cove liquefied natural gas (LNG) export terminal, associated facilities, and a natural gas pipeline system in Oregon. Issues raised before FERC included the projects’ impacts on greenhouse gas emissions and climate change, including whether FERC used outdated global warming potentials; whether FERC adequately considered indirect, cumulative, and connected greenhouse gas emissions; whether FERC appropriately assessed the significance of the projects’ emissions; whether FERC should have required measures to mitigate greenhouse gas emissions; and how FERC should consider the projects’ contribution to climate change in the Natural Gas Act public interest analysis. The projects’ developers filed their own petition challenging the FERC approvals. The documents for these consolidated proceedings are posted on the case page for Evans v. Federal Energy Regulatory Commission, No. 20-1161 (D.C. Cir., filed May 22, 2020). Jordan Cove Energy Project L.P. v. Federal Energy Regulatory Commission, No. 20-1170 (D.C. Cir., filed May 27, 2020); Rogue Riverkeeper v. Federal Energy Regulatory Commission, No. 20-1171 (D.C. Cir., filed May 27, 2020); Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians v. Federal Energy Regulatory Commission, No. 20-1172 (D.C. Cir., filed May 27, 2020); Natural Resources Defense Council, Inc. v. Federal Energy Regulatory Commission, No. 20-1180 (D.C. Cir., filed May 28, 2020).
Lawsuits Filed to Challenge EPA’s Lifting of Leak Repair and Maintenance Requirements for HFC Refrigerants
Eleven states, two cities, and Natural Resources Defense Council filed petitions seeking review of EPA’s final rule titled “Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program’s Extension to Substitutes.” The final rule revised 2016 regulations that extended refrigerant management regulations for refrigerants containing ozone-depleting substances to substitute refrigerants such as hydrofluorocarbons, which are greenhouse gases. The revised regulations limit leak repair and appliance maintenance requirements to ozone-depleting substances. Two consolidated cases challenging the 2016 regulations have been held in abeyance since April 2017. Natural Resources Defense Council, Inc. v. Wheeler, No. 20-1150 (D.C. Cir., filed May 11, 2020); New York v. Wheeler, No. 20-1151 (D.C. Cir., filed May 11, 2020).
California, Other Parties Said Foreign Affairs Doctrine Did Not Preempt Cap-and-Trade Linkages
California and other defendants filed cross-motions seeking summary judgment against the United States on the U.S.’s claim that California’s linkage of its greenhouse gas cap-and-trade program with Quebec’s is preempted under the Foreign Affairs Doctrine. The defendants asserted that the U.S. had not established any conflict with U.S. foreign policy. In addition, the defendants argued that the scope of field preemption under the Foreign Affairs Doctrine was very narrow and did not apply here and that the U.S.’s “obstacle preemption” argument, even if properly raised, would fail because the U.S. could not establish that the linkage with Quebec’s program interfered with congressional delegation of authority to the President. Western Climate Initiative, Inc. (a nonprofit organization that provides administrative and technical services to any jurisdiction with a cap-and-trade program) and related defendants also contended that the Foreign Affairs Doctrine could not be applied to them. Other parties filed briefs opposing the application of the Foreign Affairs Doctrine to preempt the linkage between the cap-and-trade programs, including intervenor-defendant International Emissions Trading Association, as well as professors of foreign relations law, 14 states (led by Oregon), and the Nature Conservancy. United States v. California, No. 2:19-cv-02142 (E.D. Cal. May 18, 2020).
Environmental Groups Asked Court to Compel NEPA Review for Permanent Water Diversion Contracts
Center for Biological Diversity and two other organizations filed a lawsuit in the federal district court for the Eastern District of California asserting that the conversion of Central Valley Project “renewal contracts” into “permanent repayment contracts” was a major federal action that required compliance with NEPA. The plaintiffs alleged that completed and pending conversions would obligate the U.S. Bureau of Reclamation to deliver more than two million acre-feet of water each year by diverting water from rivers and the Sacramento-San Joaquin Delta, resulting in many significant adverse impacts on the watershed. The plaintiffs said a NEPA alternatives analysis “would allow meaningful consideration of the trade-offs between water deliveries and environmental harm as well as opportunities to reduce deliveries over time,” including, for example, “to limit the term of the contract so as reduce quantities over time to reflect worsening conditions caused by climate change.” Center for Biological Diversity v. U.S. Bureau of Reclamation, No. 1:20-cv-00706 (E.D. Cal., filed May 20, 2020).
Exxon Sought to Move New Jersey Shareholder Derivative Litigation to Texas
Exxon Mobil Corporation (Exxon) moved to transfer a consolidated shareholder derivative action in the federal district court for the District of New Jersey to the Northern District of Texas, where a putative federal securities class action filed in 2016 and a consolidated federal derivative action filed in 2019 are pending. Exxon told the District of New Jersey that the cases in Texas raised “substantially the same allegations and same causes of action against the same defendants,” including allegations that Exxon officers made misleading statements about Exxon’s use of “proxy costs of carbon.” Exxon requested, in the alternative, that the District of New Jersey stay proceedings until the first-filed Texas suits were resolved. The plaintiffs opposed transfer, arguing that their derivative complaint was the only one to plead that demand for litigation was wrongfully refused and that they should not be penalized for allowing Exxon time to consider and respond to their litigation demands. They also argued that private (e.g., their forum preference) and public factors (New Jersey’s interest in litigation regarding a well-known company incorporated within its jurisdiction) weighed heavily against transfer. In addition, the plaintiffs argued that a stay was not warranted. In re Exxon Mobil Corp. Derivative Litigation, No. 2:19-cv-16380 (D.N.J.).
CARB Filed FOIA Lawsuit Seeking Records Underlying Federal Preemption Determinations for Zero-Emission Vehicle Standards
The California Air Resources Board (CARB) filed a Freedom of Information Act (FOIA) lawsuit seeking to compel production by EPA and NHTSA of records concerning the analysis supporting the federal agencies’ preemption of state authority to establish vehicle emission standards. In particular, CARB alleged that it sought records “supporting the conclusion that preempting CARB’s zero-emission vehicle (ZEV) regulations would not impact emissions of criteria pollutants or otherwise hinder California from meeting its responsibilities under the Clean Air Act.” CARB asserted that EPA and NHTSA failed to make determinations on CARB’s December 10, 2019 FOIA requests. California Air Resources Board v. EPA, No. 1:20-cv-01293 (D.D.C., filed May 15, 2020).
Lawsuit Asserted That NEPA Analysis for National Forest Project Failed to Adequately Consider Climate Change Impacts
Local government entities, along with a local resident and environmental groups, filed a lawsuit in federal court in Indiana challenging the U.S. Forest Service’s approval of a vegetation management and restoration project in the Hoosier National Forest. The complaint asserted claims under the National Environmental Protection Act, the National Forest Management Act, and the Administrative Procedure Act. The plaintiffs alleged that the Forest Service violated NEPA by, among other things, failing to engage in a complete analysis of the project’s impacts, including the release of carbon into the atmosphere when trees are cut and the forest floor is burned. The complaint described Hoosier National Forest as “a regionally significant carbon ‘sink,’” where stored carbon had increased by roughly 34% since the early 1990s. The plaintiffs contended that “significant scientific controversy and uncertainty” were associated with the Forest Service’s “reliance on long-term offsetting of carbon emissions in light of the scientific consensus established in the [Intergovernmental Panel on Climate Change’s] 2018 report, which highlighted the urgency of reducing carbon emissions in the short term.” The plaintiffs faulted the Forest Service for failing to cite the 2018 report in its analysis of climate change. Monroe County Board of Commissioners v. U.S. Forest Service, No. 4:20-cv-00106 (S.D. Ind., filed May 13, 2020).
Environmental Groups Said Corps of Engineers Failed to Consider Climate Change Impacts of Work in Middle Mississippi River
In a lawsuit filed in federal district court in the Southern District of Illinois, environmental groups asserted that the U.S. Army Corps of Engineers was violating NEPA by conducting activities intended to maintain a nine-foot deep navigation channel in the 195-mile Middle Mississippi River Reach of the Mississippi River without completing an adequate environmental review. Among other shortcomings, the complaint alleged that the final supplemental environmental impact statement (SEIS) issued in 2017 failed to evaluate the impacts of climate change in conjunction with the Corps’ activities on the Middle Mississippi River’s side channels despite “overwhelming science confirming that climate change is having an extremely significant impact on the Middle Mississippi River and its vital side channels.” The complaint also alleged that the SEIS failed to evaluate impacts to birds and waterfowl, including by failing to account for the cumulative effects of climate change. The plaintiffs contended that the SEIS should have assessed whether the activities conducted by the Corps would make the Middle Mississippi River and species that rely on it less resilient to climate change. They also said the review should have addressed the implications of the Middle Mississippi’s susceptibility to increased extreme weather due to climate change. In addition, the complaint asserted claims under the Water Resources Development Act, the Fish and Wildlife Coordination Act, and the 1927 Rivers and Harbors Act. National Wildlife Federation v. U.S. Army Corps of Engineers, No. 3:20-cv-00443 (S.D. Ill., filed May 13, 2020).
Citizen Suit Asserted that West Elk Coal Mine Required Air Permits
Four environmental groups filed a Clean Air Act citizen suit against the operators of the West Elk coal mine in Colorado for failing to obtain air permits. The plaintiffs identified the citizen suit as related to a case filed in 2019 in which the plaintiffs successfully challenged an Office of Surface Mining Reclamation and Enforcement (OSM) approval for expansion of the mine. The plaintiffs noted that the court had remanded the earlier case to OSM for consideration of a flaring option for controlling the mine’s emissions of methane and other volatile organic compounds (VOCs) and to assess how the mine’s methane emissions contribute to climate change. The plaintiffs said the new case involved the permitting of VOC and methane emissions. WildEarth Guardians v. Mountain Coal Co., No. 1:20-cv-01342 (D. Colo., filed May 12, 2020).
Plaintiffs Said Environmental Review for California Water Transfer Program Was Insufficient
California water resource management and conservation organizations filed a lawsuit challenging the environmental review and approval of a 2019-2024 water transfer program for the sale of water by sellers upstream of the Sacramento-San Joaquin Delta to buyers south of the Delta. The plaintiffs alleged the project would likely have “devastating impacts to the Delta,” reducing freshwater flows and worsening existing problems of inadequate water supplies, instream flow deficits, water quality impairments, and degraded aquatic habitats. The plaintiffs alleged that an EIS prepared after the court previously vacated a similar water transfer program was still deficient. Among the alleged deficiencies in the new EIS was a failure to include sufficient information about climate change. The complaint alleged that the project would exacerbate climate change’s impacts on groundwater resources. The plaintiffs asserted claims under NEPA, the California Environmental Quality Act, and the public trust doctrine. AquAlliance v. U.S. Bureau of Reclamation, No. 2:20-cv-00959 (E.D. Cal., filed May 11, 2020).
Conservation Law Foundation Appealed Court’s Stay of Climate Adaptation Case
On April 17, 2020, Conservation Law Foundation (CLF) filed notice that it was appealing the decision of the federal district court for the District of Massachusetts that stayed CLF’s climate adaptation lawsuit against ExxonMobil Corporation. The district court concluded that it should defer to the primary jurisdiction of EPA regarding the steps Exxon should take to protect its petroleum storage and distribution terminal from flooding and severe storms caused by climate change. Conservation Law Foundation v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass.), No. 20-1456 (1st Cir.).
Groups Challenged Decision Not to List River Herring as Threatened
Four environmental and conservation groups filed a lawsuit in federal court in the District of Columbia challenging the National Marine Fisheries Service’s (NMFS’s) decision not to list alewife or blueback herring as threatened species under the Endangered Species Act. The complaint alleged that the populations of these fish, collectively known as “river herring,” had “declined precipitously from their historic levels, and both species face significant threats to their survival from climate change. The plaintiffs further alleged that NMFS’s decision contained “multiple errors of law, including a discounting of the threats to river herring posed by climate change and a reliance on an unsupported theory that river herring will rapidly ‘recolonize’ rivers if the extant populations in those rivers have been wiped out.” Natural Resources Defense Council, Inc. v. Oliver, No. 1:20-cv-01150 (D.D.C., filed May 4, 2020).
Groups Asked Court to Compel Final Decision on Threatened Listing for Humboldt Marten
Center for Biological Diversity and Environmental Protection Information Center filed a lawsuit in the federal district court for the Northern District of California to compel the U.S. Fish and Wildlife Service (FWS) to issue a final determination on the proposed listing of the coastal distinct population segment of Pacific marten (the “Humboldt marten”) as a threatened species. The complaint alleged that the Humboldt marten, a member of the weasel family, was “at high risk of extinction due to loss and fragmentation of its forest habitat by logging and fire,” and that climate change was expected to increase the severity and frequency of fire events. FWS previously determined in 2015 that listing was not warranted, a finding that the court remanded to FWS in 2017. In October 2018, FWS proposed to list the species as threatened, which the plaintiffs asserted triggered a requirement for issuance of a final determination within one year. Center for Biological Diversity v. Bernhardt, No. 4:20-cv-03037 (N.D. Cal., filed May 4, 2020).
Nonprofit Group Alleged That Exxon Marketing Violated D.C. Consumer Protection Law
A non-profit organization filed a lawsuit in D.C. Superior Court alleging that Exxon Mobil Corporation violated the D.C. Consumer Protection Procedures Act by representing “that it engages in cleaner forms of energy at a significant level, when in fact, its core business remains entrenched in the production and delivery of fossil fuels.” The plaintiff asked the court to issue an injunction halting Exxon’s allegedly false marketing and advertising. Beyond Pesticides v. Exxon Mobil Corp., No. 2020 CA 002532 B (D.C. Super. Ct., filed May 15, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Youth Defended Their Climate Change Petition Before the UN Committee on the Rights of the Child
On September 23, 2019, sixteen children filed a petition alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the United Nations Convention on the Rights of the Child (“the Convention”) by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. The children ask the United Nations Committee on the Rights of the Child (“the Committee”) to declare that respondents violated their rights by perpetuating climate change, and to recommend actions for respondents to address climate change mitigation and adaptation. Petitioners claim that climate change has led to violations of their rights under the Convention, including the rights to life, health, and the prioritization of the child’s best interest, as well as the cultural rights of petitioners from indigenous communities. The children request that the Committee make findings including that climate change is a children’s rights crisis, and that each respondent has caused and is perpetuating climate change by knowingly acting in disregard of available scientific evidence. They also ask the Committee to recommend that the respondents review, and where necessary, amend their laws and policies to ensure that mitigation and adaptation efforts are accelerated; initiate cooperative international action to establish binding and enforceable climate measures; and ensure children’s right to be heard in all efforts to mitigate or adapt to the climate crisis. The Committee must determine if the petition is actionable before making findings or recommendations.
Brazil, France and Germany responded to the petition, arguing that it was not admissible on three grounds: 1) the Committee lacks jurisdiction; 2) the petition is manifestly ill-founded or unsubstantiated; and 3) petitioners have not exhausted domestic remedies. On May 4, 2020, the petitioners filed a reply asserting that the petition is admissible. They argue: 1) that the Committee has jurisdiction because the children are “directly and foreseeably injured by greenhouse gas emissions originating in Respondents’ territory;” 2) the claims are manifestly well-founded because the children are suffering direct and personal harms now and will continue to in the foreseeable future; and 3) that pursuing domestic remedies would be futile. Sacchi, et al. v. Argentina, et al. (UN Committee on the Rights of the Child).
Youth Group Challenged Coal Project in Australia
On May 13, 2020, the environmental group Youth Verdict lodged an objection to the proposed Galilee Coal Project in the Queensland Land Court. According to news reports, the plaintiffs allege that by contributing to climate change the mine will infringe on their right to life, the protection of children, and the right to culture as protected by the Queensland Human Rights Act. The Galilee Coal Project has received federal and state approval but needs to be assessed by the Queensland Land Court before the final state environmental authority can be issued. Youth Verdict v. Waratah Coal (Queensland Land Court).
Swiss Supreme Court Denied Senior Women’s Climate Case Appeal
In October 2016, a group of senior women filed suit against the Swiss Government, alleging that the government had failed to uphold obligations under the Swiss Constitution and European Convention on Human Rights (ECHR) by not steering Switzerland onto an emissions reduction trajectory consistent with the goal of keeping global temperatures below 2ºC above pre-industrial levels. The petition was dismissed by the Department of Environment, Transport, Energy, and Communications (DETEC) in April 2017. Petitioners appealed to the Swiss Federal Administrative Court, which dismissed the case in November 2018 on the basis that Swiss women over 75 years of age are not the only population affected by climate change impacts. In January 2019 the judgment was appealed to the Swiss Supreme Court. On May 20, 2020, the Supreme Court denied the appeal. According to the petitioners, the court found that that the protection of fundamental rights requested could not be claimed until the Paris Agreement’s long-term temperature goal is exceeded. Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, 1C_37/2019 (Swiss Supreme Court).
Inter-American Commission on Human Rights Held Hearing on Climate Change Impacts
On May 22, 2020, the Inter-American Commission on Human Rights heard presentations from representatives of a number of civil society organizations about the impacts of climate change on the human rights of indigenous peoples, women, children, and rural communities. The organizations stated that human rights impacts can occur during the emission of greenhouse gases, due to the effects of extreme climate events, and in the response to climate change. The request for hearing was filed by Fundación Pachamama (Ecuador), Dejusticia (Colombia), EarthRights International (regional), AIDA (regional), FUNDEPS (Argentina), FIMA (Chile), DPLF (regional), IDL (Peru), CELS (Argentina), Engajamundo (Brazil), AHCC (Honduras), Conectas (Brazil), FARN (Argentina), CEMDA (México), and La Ruta del Clima (Costa Rica).
According to the organizations, they urged the Commission to recognize the climate crisis as a priority that threatens human rights and ecosystems; advance petitions and precautionary measures related to climate change and its response measures; urge states to protect and guarantee the rights of “environmental and land defenders;” call on states to aim for more ambitious climate action through the 2020 nationally determined contributions; and emphasize the responsibility of businesses to respect human rights in the context of climate change. The organizations further requested that the Commission urge states in the region to take action to stop activities that aggravate climate change and threaten the effective enjoyment of human rights; promote energy transition models that guarantee economic, social, cultural, and environmental rights, especially of indigenous peoples, children and youth, women, and rural communities; take specific measures to guarantee access to information related to the impacts of climate change and its response measures; and promote gender equality. Hearing on Climate Change Before the Inter-American Commission on Human Rights (Inter-American Commission on Human Rights).
Estonian Youth Group Challenged An Oil Plant Permit
In May 2020, the Tartu Administrative Court accepted a complaint by Fridays for Future Estonia, an organization of young Estonian climate activists, seeking to nullify a permit issued to the state-owned energy group Eesti Energia for the construction of a new shale oil plant. According to news reports, Fridays for Future alleges that the Narva-Jõesuu town government issued the construction permit without adequately assessing its climate impacts and the commitments made under the Paris Agreement, as well as the European Union’s objective to achieve climate neutrality by 2050.
The court ordered the town to respond to the complaint within 21 days. Two Eesti Energia subsidiaries were named as third parties, and the Ministry of the Environment was named as an administrative body. All three must also present their position within 21 days. Although the court allowed the complaint, it denied a preliminary injunction to halt construction of the plant as not currently justified because the plaintiff’s claims relate to impacts that would occur during the plant’s operation, rather than construction. Fridays for Future Estonia v. Eesti Energia (Tartu Administrative Court).