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 # 136.
Methane Waste Prevention Rule Cases: California Federal Court Vacated BLM Repeal of 2016 Rule, Wyoming Federal Court Restarted Challenge to 2016 Rule
A federal court in California vacated the U.S. Bureau of Land Management’s (BLM’s) 2018 rule repealing most of the 2016 Waste Prevention Rule, finding that the process that resulted in the 2018 rule was “wholly inadequate.” First, the court found that BLM ignored the Mineral Leasing Act’s statutory mandate by adding an “economic limitation” to the interpretation of “waste” and through a “blanket delegation” to state and tribal authority. Second, the court found that BLM did not comply with the Administrative Procedure Act, finding fault with all of BLM’s grounds for the rescission. The court found that BLM did not provide adequate justification for reversing its position that the 2016 rule’s requirements were “economical, cost-effective, and reasonable”; impermissibly relied on President Trump’s Executive Order 13783 in a manner that was inconsistent with statutory mandates; arbitrarily and capriciously used a new “interim domestic” social cost of methane to analyze costs and benefits; arbitrarily ignored the Waste Prevention Rule’s benefits; arbitrarily overstated the administrative burden and failed to explain the “dramatic recalculation” of administrative costs; and arbitrarily and capriciously calculated compliance costs. Third, the court found that BLM did not satisfy its “hard look” obligation under NEPA with respect to impacts on public health (including impacts on tribal communities), impacts on climate, and cumulative climate impacts of BLM’s fossil fuel program. The court further found that BLM erred by not preparing an environmental impact statement. The court stayed its vacatur of the 2018 rule and re-implementation of the 2016 rule for 90 days to allow the parties to determine next steps. Five days later, four states (North Dakota, Texas, Wyoming, and Montana) moved to lift a stay on litigation challenging the 2016 rule in the federal district court for the District of Wyoming. The Wyoming court granted the motion the following day and ordered the parties to propose an expedited merits briefing schedule premised on completion of briefing by September 4, 2020. California v. Bernhardt, No. 4:18-cv-05712 (N.D. Cal. July 15, 2020); Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. July 21, 2020).
DECISIONS AND SETTLEMENTS
Public Nuisance Cases: Tenth Circuit Affirmed Remand Order in Colorado Localities’ Climate Suits Against Oil and Gas Companies; Ninth Circuit Denied Rehearing of Decision Affirming Remand Order; First Circuit Scheduled Oral Argument on Appeal of Remand Order in Rhode Island Case
The Tenth Circuit Court of Appeals affirmed a district court order remanding to Colorado state court a lawsuit brought by Boulder County and two other local governments seeking to hold oil and gas companies liable for climate change-related damages allegedly caused by the companies. The Tenth Circuit determined that its appellate jurisdiction was limited to the issue of federal officer removal. It therefore did not address the five other grounds for removal on which the companies relied in their appeal. The Tenth Circuit also found that ExxonMobil Corporation, one of the companies, failed to establish grounds for federal officer removal. The Tenth Circuit is the third federal appeals court to affirm the remand of a climate change lawsuit brought by local governments (the others are the Fourth and Ninth Circuits). Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir. July 7, 2020).
In the California local government cases, the Ninth Circuit denied the defendants-appellants’ petition for rehearing en banc in County of San Mateo v. Chevron Corp., which affirmed the district court’s remand order. A petition for panel rehearing and/or rehearing en banc is still pending in City of Oakland v. BP p.l.c. The United States, as well as the U.S. Chamber of Commerce and 20 states, filed amicus briefs in support of the petition for rehearing. The U.S. argued that whether “arising under federal common law” is a basis for removal and whether the case is governed by federal or state law are issues of “exceptional importance.” The U.S. said the Ninth Circuit’s failure to recognize “arising under federal common law” as a basis for removal conflicted with Ninth Circuit precedent. The U.S. also said rehearing should be granted because the Ninth Circuit “took a wrong turn” when it determined that improper removal could not be excused by the plaintiffs’ subsequent amendment of their complaint to include a federal claim. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.); County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. Aug. 4, 2020).
In Rhode Island’s case against fossil fuel companies, which is currently proceeding in state court, the First Circuit scheduled oral argument for September 11, 2020 in the defendants’ appeal of the remand order. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
Ninth Circuit Denied Rehearing of Ruling that Oakland Prohibition on Coal Operations at Terminal Violated Development Agreement
The Ninth Circuit Court of Appeals denied petitions for panel rehearing and rehearing en banc of the court’s decision affirming that the City of Oakland could not bar coal-related operations at a terminal being developed at a former Army base due to an agreement between the City and terminal’s developer that existing regulations would apply to the facility. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 18-16105 (9th Cir. Aug. 3, 2020).
Ninth Circuit Said 2012 EIS Properly Served as NEPA Analysis for 2017 Lease Sales in National Petroleum Reserve-Alaska
The Ninth Circuit Court of Appeals affirmed summary judgment in favor of the defendants in a case challenging compliance with the National Environmental Policy Act (NEPA) prior to BLM’s 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska. The Ninth Circuit deferred to BLM’s “reasonable position” that a 2012 environmental impact statement (EIS) that evaluated the management of all BLM-managed lands in the Reserve encompassed future lease sales; the court therefore rejected claims that BLM violated NEPA or its regulations by failing to prepare a NEPA analysis prior to the 2017 lease sale. The Ninth Circuit further concluded that the claim that BLM failed to take a hard look at the 2017 lease sale’s impacts was time-barred under the Naval Petroleum Reserves Production Act’s statute of limitations. The Ninth Circuit said the BLM’s only remaining hard look obligation was to analyze new circumstances and new information, but the court said the plaintiffs had waived any supplementation claim.
In a separate unpublished memorandum in a related case, the Ninth Circuit affirmed the district court’s dismissal of environmental organizations’ claim that BLM failed to take a hard look at the potential greenhouse gas emissions from the lease sales and failed to adequately analyze alternatives. The Ninth Circuit rejected the organizations’ argument that the 2012 EIS could not serve as NEPA analysis for the lease sales at issue because it did not assess climate change impacts. As in the other case, the Ninth Circuit further concluded that any hard look challenge to the 2012 EIS was time-barred; the court also found that the organizations failed to preserve any NEPA supplementation claim. Northern Alaska Environmental Center v. U.S. Department of the Interior, No. 19-35008 (9th Cir. July 9, 2020); Natural Resources Defense Council v. Bernhardt, No. 19-35006 (9th Cir. July 9, 2020).
Ninth Circuit Largely Agreed with District Court’s Assessment of Problems with Yellowstone Grizzly Delisting Rule
The Ninth Circuit Court of Appeals largely affirmed a district court order that remanded to the U.S. Fish and Wildlife Service (FWS) a rule delisting the Greater Yellowstone Ecosystem distinct population segment of grizzly bears under the Endangered Species Act. The Ninth Circuit agreed with the district court that the FWS’s commitment to ensuring the long-term genetic diversity of the Yellowstone grizzly was not adequate and that the FWS must commit to “recalibration” in the event of changes to the method of estimating the Yellowstone grizzly population. The lawsuits challenging the delisting rule had alleged threats to the Yellowstone grizzly bears due to climate change impacts on food sources and habitat. Crow Indian Tribe v. United States, No. 18-36030 (9th Cir. July 8, 2020).
Federal Court Transferred Challenge to Louisiana’s Criminal Statute Barring Unauthorized Entry of Pipelines, Dismissed Claims Against State Attorney General
In a case challenging the facial and as-applied constitutionality of Louisiana’s law prohibiting entry of critical infrastructure including pipelines, the federal district court for the Middle District of Louisiana denied motions to dismiss claims against a district attorney and sheriff in St. Martin Parish, where some of the plaintiffs were arrested while protesting construction of the Bayou Bridge Pipeline. The court dismissed claims against the Louisiana attorney general, finding that he was not a proper defendant under Ex Parte Young. Although the court concluded that venue over a constitutional challenge to a state statute was appropriate in the state’s capitol, the court granted a motion to transfer the case to the Western District of Louisiana, finding that transfer was more convenient for the parties and witnesses and in the interest of justice. White Hat v. Landry, No. 3:19-cv-00322 (M.D. La. July 30, 2020).
Montana Federal Magistrate Denied Motion to Transfer Coal Mine Expansion Lawsuit to D.C., Found that Standing Allegations Were Inadequate for Some Plaintiffs
A magistrate judge in the federal district court for the District of Montana recommended that the court grant in part and deny in part a Montana coal mine owner’s motion to dismiss a NEPA challenge to federal approval of the mine’s expansion. The mine, known as the Rosebud Mine, is a 25,949-acre surface coal mine, and expansion would increase the mine’s size by approximately 6,500 acres. The magistrate found that two of the organizations had adequately alleged standing but that the standing allegations of three other organizations were insufficient. The magistrate recommended that the three organizations be allowed to amend the complaint with additional allegations. In a separate order, the magistrate denied the mine owner’s motion to transfer the action to the federal district court in the District of Columbia, where the owner is challenging the exclusion of 74 acres from the mine expansion approval. Among other factors weighing against transfer, the magistrate found that there was not substantial overlap between the two cases because the issues in this case—which included impacts on surface waters and greenhouse gas emissions—were broader than the NEPA issues raised in the mine owner’s lawsuit. The court also found that the case implicated both local concerns (harm to waters, endangered species, and the local economy) and national interests (climate change), making the “local interests” factor neutral. Montana Environmental Information Center v. Bernhardt, No. 1:19-cv-00130 (D. Mont. order and findings and recommendations on motion to dismiss and order denying motion to transfer July 29, 2020).
Federal Court Rejected U.S.’s Remaining Claim in Challenge to California’s Cap-and-Trade Program
The federal district court for the Eastern District of California ruled that California’s cap-and-trade program for greenhouse gas emissions was not preempted under the Foreign Affairs Doctrine. First, the court found that the United States failed to identify “a clear and express foreign policy that directly conflicts” with the cap-and-trade program. Second, although the court found that California’s regulations and an agreement linking its cap-and-trade program with Quebec’s program had a “broad purpose” that extends beyond the area of traditional state responsibility, the court concluded that the U.S. failed to show that the cap-and-trade program impermissibly intrudes on the federal government’s foreign affairs power. The court therefore granted the defendants’ motions for summary judgment on the Foreign Affairs Doctrine claim. Since the U.S.’s other claims under the Treaty and Compact Clauses had already been dismissed, the court entered judgment in favor of the defendants. United States v. California, No. 2:19-cv-02142 (E.D. Cal. July 17, 2020).
In Challenge to Berkeley Natural Gas Ordinance, Federal Court Said Restaurant Association Needed to Improve Complaint
The federal district court for the Northern District of California granted in part the City of Berkeley’s motion to dismiss a challenge to its ban on natural gas infrastructure in new buildings. The court granted the motion on ripeness and standing grounds, but granted the California Restaurant Association leave to file an amended complaint by August 14, 2020 to add allegations to address the grounds for dismissal. The court also indicated during a hearing that the California Restaurant Association should do “a better job” of laying out its federal preemption argument. The court denied Berkeley’s motion to dismiss on the remaining grounds but said Berkeley could raise them again in response to the amended complaint. California Restaurant Association v. City of Berkeley, No. 4:19-cv-07668 (N.D. Cal. July 14, 2020).
Federal Defendants Agreed to Issue Final Endangered Species Act Listing Determination on Wolverine in Lower 48 States
Conservation groups and federal defendants agreed to a dismissal of a lawsuit seeking to compel a final listing determination on the distinct population segment (DPS) of the North American wolverine in the lower 48 states. The federal defendants agreed to submit a final listing determination to the Federal Register by August 31, 2020. The federal district court for the District of Montana ruled in 2016 that the U.S. Fish and Wildlife Service erred by dismissing the threats of climate change and small population size when it withdrew a proposal to list the wolverine DPS as threatened. Center for Biological Diversity v. Bernhardt, No. 9:20-cv-00038 (D. Mont. July 2, 2020).
California Court Set Aside Some Conditions in Landfill Permit but Said Climate Change Impacts and Other Factors Justified Other Conditions
A California Superior Court upheld climate change-related conditions in a permit for a landfill in Los Angeles County in a lawsuit brought by the landfill’s owner-operator. Conditions that were intended to reduce or address climate change impacts included limitations on solid waste tonnage, a time limit on landfill operations, and a requirement for periodic reviews to determine whether more stringent conditions should be imposed. The court found that some conditions, including waste reduction and diversion program fees, should be set aside, though the court indicated it was possible that the County could make required findings to support the waste reduction and diversion program fees and other mitigation fees under the Mitigation Fee Act. Chiquita Canyon, LLC v. County of Los Angeles, No. BS 171262 (Cal. Super. Ct. July 2, 2020).
NEW CASES, MOTIONS, AND NOTICES
Challenges to Amended NEPA Regulations Raised Climate Change Concerns
Environmental groups filed lawsuits in three federal district courts challenging the Council on Environmental Quality’s (CEQ’s) amendments to the NEPA regulations. All three complaints raised concerns regarding how the amendments would impede consideration of climate change impacts.
- In a suit filed in the District of Alaska, the plaintiffs asserted that CEQ should have prepared an environmental assessment or environmental impact statement under the existing regulations to evaluate the amendments’ impacts, including environmental justice impacts and impacts on efforts to limit greenhouse gas emissions and to evaluate how a changing climate affects proposed projects. The Alaska plaintiffs also asserted that CEQ failed to comply with NEPA and/or the Administrative Procedure Act by failing to review environmental justice impacts, by violating standards that apply to agency decision-making, by promulgating rules that are contrary to the plain language and purpose of NEPA, and by invalidly attempting to amend statutory thresholds for judicial review. Alaska Community Action on Toxics v. Council on Environmental Quality, No. 3:20-cv-5199 (N.D. Cal., filed July 29, 2020).
- In a suit filed in the Western District of Virginia, the plaintiffs asserted 10 claims for relief under the Administrative Procedure Act. The claims included that CEQ arbitrarily and capriciously reversed policy positions, including requirements for consideration of indirect and cumulative impacts. The plaintiffs also asserted that CEQ failed to respond to relevant and significant comments, including comments that eliminating consideration of climate change would lead to wasteful spending and poor decision-making. They also alleged that CEQ failed to consider alternative approaches that would adequately protect the climate, failed to demonstrate that the amended rules were consistent with NEPA, and made changes that were outside CEQ’s authority. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va., filed July 29, 2020).
- In a suit filed in the Southern District of New York, plaintiffs alleged that the amendments would cause “real, foreseeable harms to people, communities, and the natural environment” and would cause agencies “to disregard, rather than disclose and consider, carbon pollution that threatens the integrity of our climate.” The complaint described some of the “[c]ountless unnecessary environmental harms” that plaintiffs alleged had been “identified, disclosed, and often avoided, simply because NEPA requires federal agencies to think before they act.” The plaintiffs characterized the amendments as an attempt “to revise a statute that Congress has been unwilling to repeal and rewrite” and asserted that defects in the rule rendered it illegal under the standards of the Administrative Procedure Act. Among the defects alleged in the complaint were the elimination of the requirement to consider cumulative impacts and indirect effects (which the plaintiffs alleged would make it “extremely difficult” to consider a project’s effects, including climate change impacts, on environmental justice communities) and a failure to consider and adequately address public comments (including comments that eliminating the requirement to analyze indirect and cumulative effects would prevent assessment of the impacts of federal actions on climate change). Environmental Justice Health Alliance v. Council on Environmental Quality, No. (S.D.N.Y., filed Aug. 6, 2020).
Petitioners Argued that License Renewals for Nuclear Plant Failed to Account for Changing Climate Conditions
Petitioners challenging the U.S. Nuclear Regulatory Commission’s (NRC’s) license renewals for the Turkey Point nuclear generating station in Florida filed their initial brief. The renewals extend Turkey Point’s operating time into the 2050s. The petitioners’ arguments include that the “freshening plan” for protecting groundwater was not effective in drier and hotter conditions and that changing climate conditions would worsen the situation. The petitioners also contended that NRC failed to model anticipated climate conditions in its analysis of groundwater impacts even though it had modeled climate impacts in an earlier environmental impact statement for different reactor units. Friends of the Earth v. U.S. Nuclear Regulatory Commission, No. 20-1026 (D.C. Cir. July 27, 2020).
D.C. Circuit to Hear Argument on October 8 on Repeal and Replacement of Clean Power Plan
Briefing was completed in the litigation challenging EPA’s repeal of the Clean Power Plan and the promulgation of the Affordable Clean Energy Rule in its place. The D.C. Circuit scheduled oral argument for October 8, 2020. American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir.).
Conservation Law Foundation Argued that First Circuit Could Hear Appeal of Order Staying Climate Adaptation Case Against ExxonMobil
On July 10, 2020, Conservation Law Foundation (CLF) filed a brief arguing that the First Circuit had appellate jurisdiction over CLF’s appeal of a district court order staying CLF’s citizen suit alleging that an ExxonMobil Corporation terminal in Massachusetts was not prepared for climate change risks in violation of the its Clean Water Act permit and the Resource Conservation and Recovery Act. CLF said the stay order was an appealable “final decision” under the effectively-out-of-court rule and also under the collateral order doctrine. Alternatively, CLF argued the First Circuit should construe its appeal as a petition for writ of mandamus and exercise its discretion to review the stay order. On July 28, the First Circuit issued an order directing that the appeal proceed to merits briefing, with the issues of finality and any other jurisdictional issues to be considered by the merits panel. Conservation Law Foundation v. Exxon Mobil Corp., No. 20-1456 (1st Cir. July 10, 2020).
Rhode Island Weighed in to Support Adjudication of Claims in Climate Change Adaptation Suit Against Shell
On August 13, 2020, a federal district court in Rhode Island will hear oral argument on the motion to dismiss the citizen suit brought against Shell Oil Products US and other defendants (Shell) regarding the defendants’ alleged failure to prepare a terminal in Providence for the impacts of climate change. At the court’s invitation, Rhode Island submitted an amicus brief asserting that doctrines of primary jurisdiction and abstention generally were not appropriate in citizen suits and that neither doctrine provided a basis for the court to stay this case or decline to adjudicate the claims. Conservation Law Foundation v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. July 30, 2020).
Conservation Groups Filed Challenge to Mining Access Road Through National Park in Alaska
Conservation groups filed a lawsuit challenging federal approvals for a 211-mile road through the southern Brooks Range and Gates of the Arctic National Park and Preserve that would provide access to a mining district and be funded by the Alaska Industrial Development and Export Authority. The plaintiffs asserted claims under the Alaska National Interest Lands Conservation Act, NEPA (including failure to adequately analyze impacts on greenhouse gas emissions), the Clean Water Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act. Northern Alaska Environmental Center v. Bernhardt, No. 3:20-cv-00187 (D. Alaska, filed Aug. 4, 2020).
Exxon Said New York State Court’s Rejection of Attorney General’s Fraud Claims Required Dismissal of Securities Fraud Action in Texas Federal Court
Exxon Mobil Corporation (Exxon) and Exxon officials filed a motion for reconsideration of a 2018 decision by a federal court in Texas that partially denied their motion to dismiss a securities fraud class action based on allegations of materially false and misleading statements concerning climate change risks. The defendants argued that the plaintiff’s theory was premised on the New York Attorney General’s allegations in its unsuccessful fraud action against Exxon under New York law. The defendants argued that the New York State’s December 2019 decision “unmasked” the Attorney General’s allegations as “entirely meritless” and that the plaintiff’s allegations in this case therefore could not meet the plausibility standard. The defendants also argued that the New York decision precluded the plaintiff’s claims under res judicata principles and that the preclusive effect defeated class certification. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111 (N.D. Tex. July 31, 2020).
Exxon to Seek Dismissal of Massachusetts Lawsuit Under Anti-SLAPP Law
Exxon Mobil Corporation filed a notice in a Massachusetts state court indicating that it would seek to dismiss the Massachusetts Attorney General’s lawsuit asserting that Exxon’s failure to disclose climate change risks deceived investors and consumers. Exxon will seek to dismiss the suit under the Massachusetts anti-SLAPP (Strategic Litigation Against Public Participation) law. Commonwealth v. Exxon Mobil Corp., No. 1984CV03333 (Mass. Super. Ct. July 30, 2020).
Fossil Fuel Defendants Removed Three More Climate Cases to Federal Court
Fossil fuel companies and other defendants removed climate change-based consumer protection cases brought by Minnesota, Washington, D.C., and an environmental group to federal court. In D.C.’s case and in Minnesota’s case (which also involves a broader set of claims, including strict liability and negligent failure to warn claims), the defendants asserted multiple grounds for removal: that the cases raise disputed and substantial federal questions, that the claims necessarily arise under federal common law, that the claims arise out of federal enclaves, that federal-officer removal applies, that jurisdiction is proper under the Outer Continental Shelf Lands Act, that the case is removable under the Class Action Fairness Act, and that diversity citizenship creates removal jurisdiction. In the case brought by the nonprofit group Beyond Pesticides, Exxon Mobil Corporation identified diversity jurisdiction and the Class Action Fairness Act as the grounds for removal. Minnesota v. American Petroleum Institute, No. 0:20-cv-01636 (D. Minn. July 27, 2020); District of Columbia v. Exxon Mobil Corp., No. 1:20-cv-01932 (D.D.C. July 17, 2020); Beyond Pesticides v. Exxon Mobil Corp., No. 1:20-cv-01815 (D.D.C. July 6, 2020).
Group Sought Disclosure of Documents Regarding Relationships Between State Attorneys General and Outside Parties in Connection with Potential Climate Litigation
In June and July 2020, the nonprofit corporation Energy Policy Advocates filed suits in Massachusetts, Minnesota, and New Mexico under those states’ public records disclosure laws seeking to compel disclosure of documents related to relationships between state attorneys general and outside parties in the context of potential climate change-related litigation. The Minnesota suit concerned requests for documents related to what the plaintiff called a “highly unusual arrangement” between the State Energy & Environmental Impact Center and the Minnesota Attorney General where the Center funds special attorneys general to advance “progressive clean energy, climate change, and environmental legal positions.” The New Mexico lawsuit concerned requests for correspondence and agreements with attorney general offices in other states. In Massachusetts, the plaintiff seek communications between the Office of Attorney General and outside lawyers. Energy Policy Advocates v. Office of the Attorney General, No. __ (Mass. Super. Ct., filed July 8, 2020); Energy Policy Advocates v. Ellison, No. 62-CV-20-3985 (Minn. Dist. Ct., filed July 8, 2020); Energy Policy Advocates v. Balderas, No. D-202-CV-2020-03587 (N.M. Dist. Ct., filed June 15, 2020).
Lawsuit Filed to Compel Action on Petition to Delist Arctic Ringed Seal
North Slope Borough (the local government for the northern portion of Alaska), the Iñupiat Community of the Arctic Slope, and the Arctic Slope Regional Corporation filed a lawsuit to compel action on their petition to delist the Arctic ringed seal under the Endangered Species Act. The plaintiffs alleged that available scientific information since the listing of the Arctic ringed seal as threatened in December 2012 confirmed that the seals’ population remained high and that the population remained healthy while sea ice coverage for several decades. The plaintiffs asserted that new information and analyses demonstrated that the scientific basis for the threatened listing was erroneous. North Slope Borough v. Ross, No. 3:20-cv-00181 (D. Alaska, filed July 24, 2020).
Plaintiff Said Forest Service Should Have Conducted Supplemental Review Due to New Climate Change Information
A conservation group filed a lawsuit in the federal district court for the District of Montana asserting that the U.S. Forest Service violated NEPA by failing to prepare supplemental NEPA analysis in light of new scientific information regarding climate change. The plaintiffs alleged that the Forest Service approved a watershed project and a forest health project based on an environmental impact statement for a 1987 forest plan. Cottonwood Environmental Law Center v. Marten, No. 2:20-cv-00031 (D. Mont., filed July 21, 2020).
Plaintiffs Challenged Environmental Assessment for Revocation of Moratorium on Federal Coal Leasing
The federal district court for the District of Montana allowed plaintiffs to supplement their complaints in lawsuits challenging the U.S. Department of the Interior’s failure to comply with NEPA when it lifted the moratorium on the federal coal leasing program. The plaintiffs sought to challenge the environmental assessment (EA) prepared by the defendants after the court ruled that lifting the moratorium was an action subject to NEPA. The plaintiffs alleged several flaws in the EA, including ignoring cumulative impacts and arbitrarily refusing to use the social cost of carbon or another metric to assess greenhouse gas impacts. The plaintiffs also contended that the absence of consideration in the EA and finding of no significant impact of the long-term public benefits of addressing climate change and other impacts violated the Mineral Leasing Act. Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-30 (D. Mont. July 23, 2020).
Groups Challenged Federal Lands Right-of-Way for Keystone XL
Environmental and conservation groups filed a lawsuit in federal court in Montana challenging BLM’s granting of a right-of-way and temporary use permit for Keystone XL to cross federal land in Montana. The court previously dismissed a claim against BLM without prejudice because BLM had yet to act. In the new complaint, the plaintiffs alleged that the revised documents that BLM relied on still violated NEPA, the Endangered Species Act, and Administrative Procedure Act because the federal defendants made only a “cursory attempt to rectify the problems identified by the court” in its review of the cross-border permit issued by the Department of State. The plaintiffs alleged, among other things, that BLM based its decision, including a conclusion that climate impacts were minimal, on faulty environmental analyses, and that BLM therefore “failed to rationally assess whether granting a right-of-way for Keystone XL was consistent with the Bureau’s multiple-use mandate.” Bold Alliance v. U.S. Department of the Interior, No. 4:20-cv-00059 (D. Mont., filed July 14, 2020).
Plaintiffs Cite Cumulative Greenhouse Gas Impacts in Arguing for Preliminary Injunction to Stop Arkansas Highway Project
A motion for a preliminary injunction to halt construction of a “gargantuan” highway project in central Arkansas included an argument that the defendants failed to consider the project’s cumulative effects on greenhouse gas emissions when combined with past, present, and reasonably foreseeable emissions of greenhouse gases in the region. The plaintiffs argued that the defendants unreasonably, arbitrarily, and capriciously limited the universe of actions against which it measured cumulative impacts. Little Rock Downtown Neighborhood Association, Inc. v. Federal Highway Administration, No. (E.D. Ark. July 10, 2020).
Plaintiffs Said BLM Failed to Consider Oil and Gas Leases’ Cumulative Climate Impacts
Four organizations filed a lawsuit challenging BLM’s authorization and issuance of oil and gas leases on 30 parcels covering nearly 41,000 acres of land in the San Juan Basin in New Mexico. The organizations asserted violations of NEPA, the Administrative Procedure Act, and the Federal Land Policy and Management Act. The plaintiffs alleged a failure to take a hard look at environmental impacts, including cumulative greenhouse gas emissions and cumulative climate change impacts. Diné Citizens Against Ruining Our Environment v. U.S. Bureau of Land Management, No. 1:20-cv-00673 (D.N.M., filed July 9, 2020).
Lawsuit Alleged Failure to Consider Wind Farm’s Life Cycle Greenhouse Gas Impacts
A lawsuit filed in the federal district court for the Eastern District of California asserted that the U.S. Bureau of Indian Affairs failed to fully address harms to the Campo Band of Diegueño Mission Indians and the surrounding community when it authorized a lease for development, construction, operation, and maintenance of renewable energy generation facilities, including 60 wind turbines. The complaint—which alleged violations of NEPA, the Migratory Bird Treaty Act, and the Bald Eagle and Golden Eagle Protection Act—alleged that the environmental impact statement “paints a rosy picture” of global warming impacts but that its analysis failed to calculate the project’s entire life cycle greenhouse gas emissions, including all life cycle emissions from construction activities. Backcountry Against Dumps v. U.S. Bureau of Indian Affairs, No. 2:20-cv-01380 (E.D. Cal., filed July 8, 2020).
Lawsuit Charged that Interior Department Rule Would Imperil Protective Coastal Barriers
National Audubon Society filed a lawsuit in federal court in New York challenging a U.S. Department of the Interior final rule that allegedly “vastly expands potential sand mining projects in delicate coastal barriers protected by the 1982 Coastal Barrier Resources Act.” The complaint alleged that coastal barriers, “when intact, safeguard the nation’s geology, ecology, and economy,” protecting communities from the impacts of coastal storms. The complaint further alleged that “[c]limate change will make coastal barriers even more important,” with coastal barriers expected to mitigate $108 billion of sea level rise and flooding damages over the next 50 years. The plaintiffs asserted claims under NEPA and the Administrative Procedure Act. National Audubon Society v. Bernhardt, No. 1:20-cv-05065 (S.D.N.Y., filed July 2, 2020).
Lawsuit Filed to Compel Designation of Critical Habitat for Canada Lynx in the United States
A lawsuit filed in the federal district court for the District of Montana sought to compel the U.S. Fish and Wildlife Service (FWS) to comply with the court’s September 2016 order remanding a critical habitat rule for the Canada lynx, a species whose population in the United States is threatened by climate change. The 2016 order found that the critical habitat rule violated the Endangered Species Act, although it rejected the argument that the FWS was required to designate unoccupied habitat that could serve as climate change refugia in the future. WildEarth Guardians v. Skipwith, No. 9:20-cv-00097 (D. Mont., filed July 1, 2020).
Gas Utility, Union, and Renewable Natural Gas Company Challenged California Plan to Phase Out Natural Gas
A gas distribution utility, the union representing its workers, and a company that provides renewable natural gas for the transportation market filed a lawsuit in California state court alleging that the California Energy Commission (CEC) had disregarded state law by deciding “to substantially eliminate” use of natural gas in the state. The plaintiffs alleged that the CEC violated the California Natural Gas Act when it issued a 2019 Integrated Energy Policy Report (IEPR) with an appendix intended to satisfy its Natural Gas Act obligations. The plaintiffs said the CEC was required to publish a separate Natural Gas Act Report “as a separate document that identifies strategies and options to maximize the benefits of natural gas” for each of 10 statutory criteria. They contended that the “Anti-Natural Gas Policy” embodied in the 2019 IEPR was an “underground regulation” that violate the California Administrative Procedure Act’s rulemaking requirements. Southern California Gas Co. v. California State Energy Resources Conservation and Development Commission, No. __ (Cal. Super. Ct., filed July 31, 2020).
Natural Gas Vehicle Coalition Challenged California’s Zero-Emission Vehicle Requirements for Heavy- and Medium-Duty Vehicles
The California Natural Gas Vehicle Coalition filed a lawsuit in California Superior Court challenging the California Air Resources Board’s (CARB’s) approval of the Advanced Clean Truck Regulation, which would require that manufacturers sell an increasing percentage of medium- and heavy-duty zero-emissions vehicles (ZEVs). The Coalition alleged that CARB violated the California Environmental Quality Act and the California Administrative Procedure Act, including by failing to consider reasonable alternatives such as a plan that would include both ZEVs and low NOx trucks. The petitioners said such a plan would achieve immediate and long-term reductions in greenhouse gas and NOx emissions in the heavy-duty transportation sector. California Natural Gas Vehicle Coalition v. California Air Resources Board, No. __ (Cal. Super. Ct., filed July 30, 2020).
California Cities Filed Suit Contending PG&E Owed Them Taxes Collected as Greenhouse Gas Credits from Electricity Users
Sixteen California cities and Sacramento County sued Pacific Gas & Electric Company (PG&E) in California Superior Court, asserting that that PG&E unlawfully diverted tens of millions of dollars that it collects each year from utility users and that are owed to the local governments under their electricity tax ordinances. The amounts allegedly withheld by PG&E are amounts that its users pay with greenhouse gas credits issued under California’s Global Warming Solutions Act of 2006, pursuant to which the Public Utilities Commission developed three financial assistance programs for electric utility customers affected by increased rates due to the cap-and-trade program. The plaintiffs contended that their electricity tax ordinances apply to total charges for electricity consumed by PG&E users, regardless of whether customers pay by cash or by application of a greenhouse gas credit. The plaintiffs alleged that PG&E’s conduct undermined “the goals of California’s greenhouse gas law to reduce use of carbon-intensive power.” City of Arcata v. Pacific Gas & Electric Co., No. CGC-20-585483 (Cal. Super. Ct., July 21, 2020).
Lawsuit Filed to Compel Colorado Rulemaking on Actions to Achieve Greenhouse Gas Goals
WildEarth Guardians filed a lawsuit in Colorado state court to compel state defendants to publish a proposed rule setting forth measures to meet statutory greenhouse gas reduction goals. A law enacted in 2019 mandated publication of a notice of proposed rulemaking by July 1, 2020. WildEarth Guardians v. Polis, No. 2020CV32320 (Colo. Dist. Ct., filed July 9, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Supreme Court of Ireland Quashed Government’s Climate Mitigation Plan
The Supreme Court of Ireland quashed the country’s climate plan as too weak. The advocacy group Friends of the Irish Environment (FIE) filed suit in the High Court in 2017, arguing that the Irish government’s approval of the National Mitigation Plan in 2017 violated Ireland’s Climate Action and Low Carbon Development Act 2015 (“the Act”), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life. FIE alleged that the National Mitigation Plan (“the Plan”), which seeks to transition to a low-carbon economy by 2050, is inconsistent with the Act and Ireland’s human rights commitments because it is not designed to achieve substantial short-term emissions reductions.
On September 19, 2019, the High Court rejected FIE’s claims, reasoning that the government appropriately exercised policy making discretion afforded by the Act, and explaining that the current Plan is only an initial step in achieving targets for transitioning to a low-carbon, climate resilient, and environmentally sustainable economy by 2050 that will be subject to review and revision. On November 22, 2019, FEI appealed the ruling to the Court of Appeal, and simultaneously submitted an application to leapfrog the traditional appeal route and go directly to the Supreme Court. On February 13, 2020 the Supreme Court agreed to hear the case, determining that exceptional circumstances warranted direct appeal. The Court explained that, “[t]he applicant and the respondents accept that there exists a degree of urgency in respect of the adoption of remedial environmental measures. There is no dispute between the parties as to the science underpinning the Plan and the likely increase in greenhouse emissions over the lifetime of the Plan.”
On July 31, 2020, the Supreme Court reversed the lower court and issued a ruling quashing the Plan. The Court determined that the Plan falls short of the sort of specificity that the Act requires because a reasonable reader of the Plan would not understand how Ireland will achieve its 2050 goals. The Court explained that “a compliant plan must be sufficiently specific as to policy over the whole period to 2050.” The Court, however, determined that FIE lacks standing to bring its claims under the Constitution or ECHR, since it is an organization and not an individual with rights. The Court also concluded that FIE had not made a compelling enough case for identifying an unenumerated right to a healthy environment, separate from the rights expressly conferred by the Irish Constitution, “[w]hile not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case.” Friends of the Irish Environment v. Ireland, Appeal No: 205/19 (Supreme Court of Ireland).
British Appellate Court Refused Permission to Appeal Dismissal of Rail Project Challenge
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. An appellate court refused the claimant permission to appeal on July 31.
Environmental campaigner Christopher Packham filed suit on March 27, 2020 to challenge the 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. The claimant alleged, among other things, that a report on which the Secretary relied 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.
On April 6 the High Court of Justice 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, reasoning 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. On July 31, 2020, the Court of Appeal refused permission to appeal, reasoning that none of the claimant’s claims were arguable. Packham v. Secretary of State for Transport, 2020 WL 04427078 (British Royal Courts of Justice, Court of Appeal)
Australian Bond Holder Sued Government for Climate Disclosure
On July 22, 2020, Equity Generation Lawyers filed a lawsuit in the Federal Court on behalf of Kathleen (Katta) O’Donnell against the Australian government. The lawsuit alleges that Australia’s economy and reputation in international financial markets will be significantly affected by the adequacy of the Australian government’s response to climate change, and that as a result investors who trade in Australian government bonds face material risks from climate change that should be disclosed. The lawsuit further alleges that that government breached its duty of disclosure and misled and deceived investors in failing to disclose such risks.
O’Donnell seeks to represent other holders of and investors in Exchange-traded Australian Government Bonds who have the same interest in the proceeding. She seeks declarations that the Commonwealth has breached the law and an injunction from the Federal Court to prevent further promotion of bonds without informing investors about climate change risks. O’Donnell v. Commonwealth (Australian Federal Court).
Government Filed Response in France’s “Case of the Century”
The French government filed a response to a 2019 complaint alleging that France has taken insufficient action on climate change. In March 2019, Fondation pour la Nature et l’Homme (FNH), Greenpeace France, Notre Affaire à Tous and Oxfam France filed a lawsuit against the French government – which they call the “Case of the Century” – for the state’s alleged inaction on climate change and failure to meet its own goals for reducing greenhouse gas emissions, increasing renewable energy, and limiting energy consumption. Plaintiffs argue that the government has both general and specific legal duties to act on climate change arising out of the French Charter for the Environment, the European Convention for the Protection of Human Rights, and the general principle of law providing the right of every person to live in a preserved climate system. Plaintiffs additionally argue the State has further “specific” obligations to mitigate greenhouse gas emissions under EU and national law as well as specific obligations to take action to prepare for the impacts of climate change on France.
On June 26, 2020 the government responded. According to the plaintiffs, the government asserted that it was taking action to address greenhouse gas emissions, and that the time has not elapsed for it to meet its 2020 goals. Notre Affaire à Tous et al. v. France (Administrative Court of Paris).
Class Action Was Filed in Argentina Challenging Local Governments’ Management of Paraná Delta
On July 2, 2020 a class action was filed in the Argentinian Supreme Court against the governments of the Province of Entre Ríos and the Municipality of Victoria City in Argentina for their alleged failure to protect environmentally sensitive wetlands. The lawsuit, brought by the groups Asociación Civil por la Justicia Ambiental and Foto Ecologista de Paraná, and a class of children, argues that the Paraná Delta has its own rights.
The plaintiffs ask the Court to declare the Paraná Delta a “subject of rights” and an essential ecosystem for mitigating and adapting to climate change; order that the defendants develop and implement an Environmental Territorial Order and Plan to regulate land use in the Paraná Delta, recognizing that the area is at risk due to climate impacts; designate a “guardian” of the rights of the Paraná Delta with the goal of controlling the conservation and sustainable use of the wetlands; and ensure public participation in future decisions consistent with the Escazú Agreement. The complaint relies primarily on the Argentinian constitution, the Convention on the Rights of the Child, the UNFCCC, the Paris Agreement, General Environmental Law No. 25.675 and Environmental Law to Control Burning Activities No. 23.919. The complaint also references laws in other countries recognizing the rights of nature, rivers, and other non-human entities. Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al. (Supreme Court of Argentina).
German Youth Filed Legal Challenge Against Germany’s Federal Climate Protection Act
In February 2020, a group of German youth filed a legal challenge to Germany’s Federal Climate Protection Act (“Bundesklimaschutzgesetz” or “KSG”), arguing that the KSG’s target of reducing GHGs 55% by 2030 from 1990 levels was insufficient. The complainants further allege that the KSG therefore violates their human rights as protected by the Basic Law, Germany’s constitution.
The complaint alleges that the KSG’s 2030 target does not take into account Germany’s and the EU’s obligation under the Paris Agreement to limit global temperature rise to “well below 2 degrees Celsius.” The complainants argue that in order to “do its part” to achieve the Paris Agreement targets, Germany would need to reduce GHGs by 70% from 1990 levels by 2030. Their claims principally arise out of the principle of human dignity allegedly enshrined in Article 1 of the Basic Law; Article 2 of the Basic Law, which protects the right to life and physical integrity; and Article 20a of the Basic Law, which protects the natural foundations of life in responsibility for future generations. Complainants argue that by requiring insufficient GHG cuts and allowing for the transfer of emission allocations, the KSG allows climate impacts that violate these human rights.
The complaint asks the Federal Constitutional Court to declare that the legislature has violated the Basic Law by requiring only a 55% reduction in GHGs by 2030; declare that the legislature is required to issue new reduction quotas to ensure that Germany’s emissions are kept as low as possible, taking into account the principle of proportionality; and prohibit the transfer of emissions allocations in the new regulatory regime. Neubauer, et al. v. Germany (Federal Constitutional Court of German).