By Margaret Barry and Korey Silverman-Roati
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 138.
FEATURED CASE
Federal Court in Rhode Island Allowed Failure-to-Adapt Claims to Proceed
The federal district court for the District of Rhode Island for the most part denied a motion to dismiss a citizen suit asserting that Shell Oil Products US and other defendants (Shell) failed to prepare a terminal in Providence for the impacts of climate change. Although the court found that the plaintiff, Conservation Law Foundation (CLF), lacked standing to the extent its claims relied on “future harms,” the court concluded that CLF had asserted “certainly impending harm” as to “near-term harms from foreseeable weather events.” In particular, the court found that the complaint “makes clear that a major weather event, magnified by the effects of climate change, could happen at virtually any time, resulting in the catastrophic release of pollutants” due to Shell’s alleged failure to adapt. The court further found that CLF’s members’ alleged injuries to their use and enjoyment of waters and roads in the terminal’s vicinity flowed from the alleged failure to prepare the terminal for the impacts of climate change. For the same reasons, the court found that the case was ripe for adjudication. The court also concluded that the complaint stated claims under the Resource Conservation and Recovery Act (RCRA), except to the extent the claims were based on federal, instead of state, RCRA regulations. The court found that CLF pleaded facts satisfying the “imminent and substantial endangerment” standard on the theory that the alleged failure to prepare the terminal for foreseeable weather events was an imminent endangerment. The court also found that the complaint stated claims under the Clean Water Act related to the terminal’s National Pollutant Discharge Elimination System permit. The court said the plaintiff’s claims required interpretation of the permit, including whether its requirement of “good engineering practices” required preparing the terminal for catastrophic weather. In addition, the court declined to exercise its discretion to abstain or to apply the doctrine of primary jurisdiction. Conservation Law Foundation v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. Sept. 28, 2020).
DECISIONS AND SETTLEMENTS
Wyoming Federal Court Vacated 2016 Waste Prevention Rule
The federal district court for the District of Wyoming vacated the bulk of the Waste Prevention Rule promulgated during the Obama administration, holding that the U.S. Bureau of Land Management (BLM) exceeded its authority and acted arbitrarily and capriciously. The Waste Prevention Rule was intended “to reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities” on federal and tribal lands and to clarify “when produced gas lost through venting, flaring, or leaks is subject to royalties.” In 2019, the Wyoming federal court stayed these proceedings challenging the Waste Prevention Rule while a challenge to the Trump administration’s repeal of the rule was pending in the federal district court for the Northern District of California. After that court vacated the repeal in July 2020, the Wyoming federal court lifted the stay. In its order vacating all but two provisions of the Waste Prevention Rule, the court concluded that “a principal purpose and intent” of the rule was to “curb air emissions” and that the Mineral Leasing Act did not delegate authority to the Secretary of Interior to promulgate rules “justified primarily upon the ancillary benefit of a reduction in air pollution, particularly when considered in light of historical context and the comprehensive regulatory structure under the Clean Air Act.” The court also found that BLM acted arbitrarily and capriciously by failing to consider the rule’s impacts on marginal wells, failing to explain and identify support for the rule’s capture requirements, and failing to separately consider the rule’s domestic costs and benefits. Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo. Oct. 8, 2020).
In Baltimore’s Climate Case Against Fossil Fuel Companies, Supreme Court Agreed to Consider Scope of Appellate Review of Remand Order
On October 2, 2020, the U.S. Supreme Court granted fossil fuel companies’ petition for writ of certiorari seeking review of the Fourth Circuit’s order remanding to state court Baltimore’s climate change case against the companies. Justice Alito did not participate in the consideration or decision of the petition. The question the Supreme Court agreed to consider is whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.” The district court rejected eight grounds for removal, but the Fourth Circuit concluded its appellate jurisdiction was limited to determining whether the companies properly removed the case under the federal-officer removal statute. BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. Oct. 2, 2020).
D.C. Circuit Stayed Compliance Dates for Obama-Era Truck Trailer Fuel Economy Standards
On September 29, 2020, the D.C. Circuit Court of Appeals stayed the compliance dates for fuel economy regulations adopted by the Obama administration to the extent the regulations apply to truck trailers. The court heard oral argument on September 15 in a case challenging not only the fuel economy regulations, which the National Highway Traffic Safety Administration (NHTSA) promulgated, but also greenhouse gas emissions standards promulgated by the U.S. Environmental Protection Agency (EPA) in the same rulemaking. In October 2017, the D.C. Circuit stayed the EPA standards, which would have taken effect in January 2018. The NHTSA regulations would have taken effect in January 2021. In its stay motion, the Truck Trailer Manufacturers Association (TTMA) argued that the court had already determined that its challenge to the EPA standards was likely to be successful and that the NHTSA standards could not function without the EPA standards. TTMA also argued that NHTSA lacked authority to regulate fuel economy of trailers. In addition, TTMA asserted that its members would suffer immediate and irreparable harm in the absence of a stay. Both EPA and NHTSA are still in the process of reconsidering their trailer rules. Truck Trailer Manufacturers Association, Inc. v. EPA, No. 16-1430 (D.C. Cir. Sept. 29, 2020).
Effective Date Administratively Stayed for EPA Amendments to Oil and Gas Standards
On September 17, 2020, the D.C. Circuit Court of Appeals administratively stayed EPA amendments to the 2012 and 2016 new source performance standards (NSPS) for the oil and gas sector. The amendments—which were effective upon their publication in the Federal Register—removed transmission and storage sources from the oil and natural gas source category, rescinded the NSPS for such sources for both volatile organic compounds and methane, and separately rescinded methane requirements for production and processing sources. The amendments were challenged in a petition filed by 20 states, along with Chicago, Denver, and the District of Columbia, and in a second petition filed by 10 environmental groups. The D.C. Circuit issued the administrative stay to allow the court “sufficient opportunity” to consider an emergency motion for stay filed by the environmental groups. After the amendments were stayed, the state and city petitioners filed their own emergency motion. The environmental groups also filed a separate petition challenging amendments to the NSPS resulting from EPA’s reconsideration of fugitive emissions requirements, well site pneumatic pump standards, requirements for certification of closed vent systems, and provisions to apply for use of an alternative means of emission limitation. California v. Wheeler, No. 20-1357 (D.C. Cir., filed Sept. 14, 2020); Environmental Defense Fund v. Wheeler, No. 20-1359 (D.C. Cir., filed Sept. 14, 2020); Environmental Defense Fund v. Wheeler, No. 20-1363 (D.C. Cir., filed Sept. 15, 2020).
Federal Court Denied Preliminary Injunction in Steel Mill Owner’s Pipeline Challenge
The federal district court for the Eastern District of Texas denied a steel mill owner’s motion for a preliminary injunction barring construction of a gas pipeline that will cross the plaintiff’s property. The owner asserted that the U.S. Corps of Engineers violated NEPA, the Clean Water Act, the Endangered Species Act, and the Administrative Procedure Act by reauthorizing and reissuing Nationwide Permit 12 (NWP-12) and by approving the pipeline under NWP-12. The court found that the steel mill owner was unlikely to succeed on the merits because it did not have standing under NEPA or the Endangered Species Act and its Clean Water Act claim failed. (The steel mill owner’s allegations in support of its NEPA claim included that the Corps failed to adequately analyze NWP-12’s climate change impacts including potential increased lifecycle greenhouse gas emissions.) The court also found that the plaintiff did not show irreparable harm or that the balance of equities or public interest weighed in its favor. Optimus Steel, LLC v. U.S. Army Corps of Engineers, No. 1:20-cv-00374 (E.D. Tex., filed Sept. 10, 2020 and order Oct. 4, 2020).
After District Court Declined to Enjoin Coal Company’s Road-Building Activities in Colorado, Tenth Circuit Entered Temporary Injunction
The federal district court for the District of Colorado declined to vacate mining lease modifications that authorized a coal company to undertake road construction in the Sunset Roadless Area in Colorado. The U.S. Forest Service adopted the North Fork Exception to the Colorado Roadless Rule in 2016, allowing for road construction related to coal mining in the Sunset Roadless Area. In March 2020, the Tenth Circuit vacated the North Fork Exception due to the arbitrary and capricious exclusion of an alternative in the supplemental final environmental impact statement (SFEIS) for the Exception. The Tenth Circuit rejected, however, an argument that the U.S. Bureau of Land Management’s SFEIS for the lease modifications failed to consider a “Methane Flaring Alternative.” The district court concluded that although the Tenth Circuit vacated the North Fork Exception, the appellate court had not expressly or impliedly directed the district court to vacate the lease modifications. The district court further concluded that it could not enjoin the coal company from conducting surface-disturbing activities in the North Fork Exception area because all of the plaintiffs’ challenges to the lease modifications had been resolved in favor of the federal agency defendants and the plaintiffs’ assertions that the coal company’s activities violated the Roadless Rule appeared to raise “an entirely new claim” targeted not at the agencies but at the coal company. The plaintiffs appealed the court’s ruling and filed motions for injunction pending appeal in the district court and the Tenth Circuit. To facilitate its consideration of the motion, the Tenth Circuit on October 7 entered a temporary injunction enjoining bulldozing additional drilling pads, drilling methane ventilation boreholes, and engaging in further surface disturbance in preparation for coal mining in the Sunset Roadless Area. High Country Conservation Advocates v. U.S. Forest Service, No. 1:17-cv-03025 (D. Colo. Oct. 2, 2020), No. 20-1358 (10th Cir.).
Federal Defendants Agreed to Make Determination on Climate Change-Threatened Beetle by August 2023
WildEarth Guardians and federal defendants reached an agreement for dismissal of one portion of an Endangered Species Act lawsuit challenging the defendants’ failure to make final listing determinations on five aquatic species. Pursuant to the agreement, the defendants agreed to submit a determination as to whether the listing of the narrow-foot hygrotus diving beetle as threatened or endangered is warranted for publication in the Federal Register by August 15, 2023. WildEarth Guardians agreed to dismiss with prejudice its claim based on the narrow-foot hygrotus diving beetle. The complaint alleged that WildEarth Guardians petitioned for listing of the beetle due to the organization’s concern that the beetle “will be unable to adapt and keep pace with changing climatic conditions, especially in light of the species’ restricted range.” WildEarth Guardians v. Bernhardt, No. 1:20-cv-01035 (D.D.C. Sept. 30, 2020).
CARB, EPA, and NHTSA Resolved Dispute over Disclosure of Technical Studies Underlying Preemption Determination
The California Air Resources Board (CARB), EPA, and NHTSA stipulated to dismissal of CARB’s Freedom of Information Act (FOIA) lawsuit seeking disclosure of records concerning the analysis supporting the federal agencies’ preemption of state authority to establish vehicle emission standards. The parties agreed in July 2020 that EPA and NHTSA would respond by September 24 to clarified, limited, and revised requests for emissions analyses and other technical or scientific records regarding whether revocation of CARB’s Clean Air Act waiver for zero-emission vehicle (ZEV) regulations would have impacts on emissions of criteria pollutants, California’s attainment of the national ambient air quality standards, and California’s conformity responsibilities under the Clean Air Act. In addition to the joint stipulation of dismissal, the parties also filed a joint motion to extend time for CARB to move for fees and costs to allow the parties “a suitable period” to determine whether they could reach agreement on this issue. California Air Resources Board v. EPA, No. 1:20-cv-1293 (D.D.C. Sept. 30, 2020).
Federal Court Found Problems with Assessment of How Sea Level Rise Would Affect Skink Habitat
The federal district court for the Southern District of Florida granted summary judgment to the Center for Biological Diversity (CBD) in a case challenging the Secretary of the Interior’s decision not to list the Florida Keys mole skink as endangered or threatened under the Endangered Species Act. The skink is a lizard that lives only on islands of the Florida Keys; its habitat is threatened by sea level rise. The court found that the U.S. Fish and Wildlife Service (FWS) did not explain why it relied on one set of habitat loss projections while also crediting 2017 projections by the National Oceanic and Atmospheric Administration that indicated sea levels were rising 15% faster. The court also found that the FWS needed to explain its conclusion that habitat threats were uniform across the skink’s range notwithstanding non-uniform rates of inundation by sea level rise. The court was not persuaded, however, that the FWS acted arbitrarily and capriciously by limiting the foreseeable future to 2060, though the court said the FWS should consider on remand whether its approach to Geoplan would affect its conclusions regarding the foreseeable future. The court also rejected CBD’s other arguments, including an argument that the FWS disregarded climate change effects other than sea level rise such as storm surge and saltwater intrusion. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 2:19-cv-14243 (S.D. Fla. Sept. 16, 2020).
New Jersey Federal Court Transferred Shareholder Derivative Action Against Exxon to Texas
In a consolidated stockholder derivative action against Exxon Mobil Corporation board members and executive officers (Exxon), the federal district court for the District of New Jersey granted Exxon’s motion to transfer venue to the Northern District of Texas. The case involves allegations that the defendants misrepresented the costs of climate change regulations and did not appropriately project future costs of carbon and greenhouse gas emissions. A related federal securities action and additional shareholder derivative actions are pending in the Northern District of Texas. The New Jersey federal court concluded that private and public interests weighed in favor of transfer. In re Exxon Mobil Corp. Derivative Litigation, No. 2:19-CV-16380 (D.N.J. Sept. 15, 2020).
Federal Court Upheld State Department’s Invocation of FOIA Exception for Legal Memorandum Supporting Paris Agreement Request
In a FOIA lawsuit brought by Competitive Enterprise Institute, a federal district court in the District of Columbia ruled that the U.S. Department of State properly withheld a legal memorandum that accompanied an “action memorandum” seeking authorization from the Secretary of State to join the Paris Agreement. The court found that the legal memorandum met the criteria for the deliberative process privilege because it was predecisional and deliberative and did not constitute the “working law” of the State Department. The court rejected CEI’s argument that because a document appearing to be the legal memorandum had been posted on the internet, the memorandum fell outside the FOIA exemption under the “public domain doctrine.” Competitive Enterprise Institute v. U.S. Department of State, No. 17-cv-02032 (D.D.C. Sept. 15, 2020).
Federal Court in Virginia Declined to Issue Preliminary Injunction in Challenge to CEQ Amendments to NEPA Regulations, Denied Motions to Dismiss
The federal district court for the Western District of Virginia denied a motion for preliminary injunction or stay barring the Council on Environmental Quality’s (CEQ’s) amendments to the National Environmental Policy Act (NEPA) regulations from taking effect. The court concluded that while the plaintiffs “may ultimately succeed,” at this point they had not made the necessary “clear showing” that they were likely to succeed. The court indicated it was “not unlikely that interpretative testimony and expert opinion would be required for the proper determination of the validity” of the amendments. The court also said the jurisdictional standing and ripeness issues raised by the defendants “may very well require evidence.” The court also cited the Fourth Circuit’s statement that issuance of a nationwide preliminary injunction should be limited “to the most exceptional circumstances.” The court subsequently denied motions to dismiss the lawsuit and clarified that discovery was not contemplated but that summary judgment motions might be supported by expert declarations or other interpretive opinion. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va. Sept. 11, 2020).
Federal Court Upheld Environmental Review for Logging Project
The federal district court for the District of Colorado upheld the U.S. Forest Service’s approval of a timber project authorizing logging on 1,631 acres in the White River National Forest in Colorado. The court rejected three claims under NEPA, including an argument that the Forest Service failed to consider foreseeable greenhouse gas emissions and the project’s indirect and cumulative effect on global warming. The court found that the petitioners did not show that emissions from the project—which the court characterized as a “relatively small timber and biomass project”—would likely result in a cumulatively significant impact. The court distinguished this case from other cases in which consideration of emissions was required, indicating that in those cases “the significance of emissions was often beyond doubt.” Swomley v. Schroyer, No. 1:19-cv-01055 (D. Colo. Sept. 3, 2020).
Court Denied Injunction in Challenge to Highway Project in Arkansas
The federal district court for the Eastern District of Arkansas declined to enjoin a highway reconstruction and widening project. The court found that the plaintiffs—who asserted, among other things, that the defendants failed to consider the project’s cumulative impacts on greenhouse gas emissions—had not shown a likelihood that they would prevail on the merits. The court also found that the plaintiffs did not demonstrate they would suffer irreparable harm if work on the project commenced and that the balance of equities and public interest favored the defendants. Little Rock Downtown Neighborhood Association, Inc. v. Federal Highway Administration, No. 4:19-cv-00362 (E.D. Ark. Sept. 3, 2020).
Montana Supreme Court Affirmed that Public Service Commission Improperly Rewrote Terms of Solar Project PPA, Including by Eliminating Carbon Adder
The Montana Supreme Court affirmed a district court order that reversed a Montana Public Service Commission (PSC) order setting terms and conditions of a power purchase agreement (PPA) for a proposed 80 megawatt solar project. The project developer filed a petition with the PSC to establish terms and conditions after negotiations with a utility stalled. The PSC altered all terms and conditions in the PPA, including terms on which the parties agreed such as use of a “carbon adder” in the calculation of avoided energy costs. The PSC concluded that carbon costs would no longer be included in the avoided-costs calculation because the current federal administration opposed carbon emissions regulation. The district court held, among other things, that elimination of the carbon adder was arbitrary and capricious and directed the PSC to assign a price for carbon. The Montana Supreme Court agreed with the district court that the solar project developer was entitled to an agreed-upon rate for energy, a carbon adder, and a 25-year contract term. The Supreme Court said the PSC lacked authority to rewrite these terms. MTSUN, LLC v Montana Department of Public Service Regulation, No. DA-19-0363 (Mont. Sept. 22, 2020).
Massachusetts High Court Upheld Approval of Hydropower Purchase Agreements
The Massachusetts Supreme Judicial Court affirmed the Massachusetts Department of Public Utilities’ approval of power purchase agreements allowing electricity distribution companies to purchase clean electricity generated hydroelectrically by Hydro-Québec Energy Services (U.S.), Inc. The court held that the Department applied a reasonable interpretation of the statutory requirement that the PPAs provide for “firm service” hydroelectric generation (i.e., power provided without interruption). The court also found that substantial evidence supported the Department’s conclusions that the PPAs “provide for the procurement of energy from hydroelectric generation alone” and that an industry-standard tracking system was an appropriate mechanism to meet statutory requirements intended to allow the Department of Environmental Protection to monitor progress in reducing greenhouse gas emissions. NextEra Energy Resources, LLC v. Department of Public Utilities, No. SJC-12886 (Mass. Sept. 3, 2020).
NEW CASES, MOTIONS, AND NOTICES
Connecticut Filed Lawsuit Alleging Exxon Engaged in “Campaign of Deception” Regarding Climate Change
Connecticut filed a lawsuit against Exxon Mobil Corporation in Connecticut Superior Court alleging that Exxon “misled and deceived Connecticut consumers about the negative effects of its business practices on the climate.” Connecticut alleged that Exxon executives and other agents knew as early as the 1950s that fossil fuel combustion contributed to global warming and that when Exxon had the opportunity in the 1980s “to responsibly contribute to public understanding of climate change and its potentially catastrophic consequences,” Exxon instead “began a systematic campaign of deception” to undermine climate science and maximize its profits. The complaint listed “myriad negative consequences in Connecticut” to which the State alleged the “campaign of deception” contributed, including sea level rise, flooding, drought, increases in extreme temperatures and severe storms, decreases in air quality, contamination of drinking water, increases in spread of diseases, and severe economic consequences. The State asserted eight counts under the Connecticut Unfair Trade Practices Act and sought injunctive and equitable relief; civil penalties; restitution for State expenditures attributable to Exxon to respond to the effects of climate change; disgorgement of revenues, profits, and gains; disclosure of research and studies on climate change; and funding of a corrective education campaign. State v. Exxon Mobil Corp., No. HHDCV206132568S (Conn. Super. Ct., filed Sept. 14, 2020).
Delaware Lawsuit Sought Damages from Fossil Fuel Companies for Climate Change Injuries
Delaware filed a lawsuit in Delaware Superior Court asserting common law claims and a claim under its Consumer Fraud Act against fossil fuel companies for allegedly causing “the climate crisis” through “concealment and misrepresentation of their products’ known dangers—and simultaneous promotion of their unrestrained use.” Delaware alleged “severe injuries,” including inundation and loss of State property, loss of tax revenue due to inundation of private property and businesses and other impacts to Delaware’s economy, injury to or destruction of critical State facilities, increased costs of providing government services, increased health care and public health costs, increased planning and preparation costs, and disruption and loss of coastal communities. The common law claims asserted by Delaware are negligent failure to warn, trespass, and nuisance. The State seeks compensatory damages, penalties for violation of the Consumer Fraud Act, attorneys’ fees, punitive damages, and costs of suit. State v. BP America Inc., No. N20C-09-097 (Del. Super. Ct., filed Sept. 10, 2020).
Charleston Filed Suit Against Fossil Fuel Companies Alleging Their Responsibility for “Devastating” Climate Change Impacts
The City of Charleston filed an action in the South Carolina Court of Common Pleas against fossil fuel companies asserting that they are responsible for “devastating adverse” climate change impacts on Charleston and its residents. The alleged impacts included flooding, inundation, erosion, and beach loss due to sea level rise; “more frequent, longer-lasting and more severe” extreme weather events; and resulting social, economic, and other consequences. The conduct alleged to be a substantial factor in causing the impacts includes failure to warn of threats posed by fossil fuel products, wrongful promotion of fossil fuels and concealment of known hazards, “public deception campaigns designed to obscure the connection” between the defendants’ products and climate change, and failure to pursue less hazardous alternatives. The City asserted claims of public and private nuisance, strict liability for failure to warn, negligent failure to warn, and trespass, as well as violations of the South Carolina Unfair Trade Practices Act. The City sought compensatory damages, treble damages under the Unfair Trade Practices Act, equitable relief, attorneys’ fees, punitive damages, disgorgement of profits, and costs of suit. City of Charleston v. Brabham Oil Co., No. 2020CP1003975 (S.C. Ct. Com., filed Sept. 9, 2020).
First Circuit Heard Oral Arguments in Fossil Fuel Companies’ Appeal of Remand Order in Rhode Island Case; Ninth Circuit Extended Stay of Mandate in County of San Mateo; Other Cases Still Pending in District Courts
Developments in September and early October in other state and local government climate change cases against fossil fuel companies included oral arguments heard by the First Circuit on September 11 in the companies’ appeal of a federal district court’s remand of Rhode Island’s case to state court. On October 5, defendant Chevron notified the First Circuit of the Supreme Court’s granting of review in BP p.l.c. v. Mayor & City Council of Baltimore. The letter indicated that the same issue the Supreme Court agreed to review was pending before the First Circuit in the Rhode Island case and that the Supreme Court was likely to decide the Baltimore case in this term. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
The Ninth Circuit extended its stay of the mandate in County of San Mateo v. Chevron Corp. for 90 days. In May, the Ninth Circuit affirmed a remand order in cases brought by localities in California. The Ninth Circuit granted the extension of the stay of mandate after the Supreme Court allowed the fossil fuel company defendants an additional 60 days to file a petition for writ of certiorari. The petition must be filed by January 4, 2021. County of San Mateo v. Chevron Corp., No. 18-15499 (9th Cir.).
In cases still pending in district courts, the District of Hawaii on September 9 declined to reconsider its order lifting the stay in the City and County of Honolulu’s case against fossil fuel companies. The district court rejected the companies’ contention that it should reconsider lifting the stay in light of the Ninth Circuit’s stay of the issuance of the mandate in County of San Mateo v. Chevron Corp. The District of Hawaii said it remained “unpersuaded that the contingent utility of a stay in this case outweighs proceeding in the normal course with, at the very least, Plaintiff’s anticipated motion to remand.” Honolulu filed its motion to remand on September 11. City & County of Honolulu v. Sunoco LP, No. 1:20-cv-00163 (D. Haw.).
In the Western District of Washington, the district court continued a stay that has been in place since October 2018. The parties jointly requested that the stay be maintained pending resolution of the earlier of (1) defendants’ petition for writ of certiorari to the Supreme Court in City of Oakland v. BP p.l.c. or (2) the Supreme Court’s decisions in two cases involving personal jurisdiction issues. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. Sept. 9, 2020).
In City of Oakland v. BP p.l.c., which has returned to the Northern District of California, the court scheduled a case management conference for November 12, 2020. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal.).
Environmental Groups Challenged FERC Approval of Alaska LNG Project of “Unprecedented” Scale
Center for Biological Diversity and Sierra Club filed a petition in the D.C. Circuit Court of Appeals for review of Federal Energy Regulatory Commission (FERC) actions authorizing the Alaska LNG Project, which includes a liquefied natural gas terminal in southcentral Alaska, an 807-mile gas pipeline, a gas treatment plant on the North Slope, and other related transmission lines. Issues raised by Center for Biological Diversity and Sierra Club before FERC included failure to meaningfully consider an alternative that would avoid the project’s greenhouse gas emissions and other pollution, failure to take a hard look at the project’s greenhouse gas emissions, and failure to take a hard look at impacts of the project’s greenhouse gas emissions on polar bear recovery. The organizations also contended that FERC failed to consider how the project—the size of which they described as “unprecedented”—would exacerbate climate change in its public interest analysis under the Natural Gas Act. Center for Biological Diversity v. Federal Energy Regulatory Commission, No. 20-1379 (D.C. Cir., filed Sept. 21, 2020).
D.C. Circuit Heard Oral Argument on Clean Power Plan Repeal and Replacement
On October 8, 2020, the D.C. Circuit Court of Appeals heard oral argument on the repeal of the Clean Power Plan, EPA’s authority to promulgate a replacement rule for carbon dioxide emissions from existing power plants, and the legality of EPA’s replacement rule, the Affordable Clean Energy Rule. The court also heard arguments on issues related to EPA’s treatment of biomass-based fuels and biogenic emissions. American Lung Association v. EPA, No. 19-1140 (D.C. Cir.).
Petitioners Requested Briefing Schedule to Allow Oral Argument in Current Term on Amendments to Vehicle Greenhouse Gas Standards; EPA and NHTSA Opposed
Petitioners and respondents in the proceedings challenging EPA and NHTSA’s amendment of greenhouse gas and fuel economy standards for passenger cars and light trucks disagreed over the timeframe for briefing in the case. The petitioners asked the D.C. Circuit to establish a schedule that would allow for oral argument during the current term, with briefing to begin on November 10, 2020 and be completed on March 5, 2021. They also requested that the court permit petitioners to file five separate principal briefs. The respondents contended that the motion to establish a briefing schedule was premature because motions to supplement the record and motions to intervene were still pending. If the court decided to establish a briefing format and schedule, the respondents requested that the petitioners’ opening briefs be due on January 14, 2021, with final briefs due on June 14, 2021. The respondents also argued that the petitioners’ proposed word counts were unreasonable and requested reduced word counts. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir.).
Briefs Filed in Support of EPA and NHTSA’s Actions Restricting State Authority to Regulate Vehicle Emissions
EPA and NHTSA defended their rulemaking that withdrew California’s waiver for its Advanced Clean Car program and explicitly preempted state and local regulations of tailpipe greenhouse gas emissions and zero-emission vehicle mandates. They argued in a brief filed in the D.C. Circuit that NHTSA had authority to issue the preemption regulations under the Energy Policy and Conservation Act (EPCA), that EPCA expressly and impliedly preempted state mandates and standards, and that NEPA did not apply to NHTSA’s preemption regulations. They also argued that jurisdiction for review of the regulation was properly in the D.C. Circuit. The respondents also argued that EPA has authority to reconsider and withdraw waivers and that it properly withdrew California’s waiver. Twelve states and several trade groups filed briefs as intervenors supporting EPA and NHTSA’s actions. In addition, the U.S. Chamber of Commerce and the organization Urban Air Initiative filed amicus briefs in support of EPA and NHTSA. On September 22, Alaska moved to withdraw as a respondent-intervenor, and the D.C. Circuit granted its motion on September 24. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir.).
Plaintiff in Securities Action Against Exxon Said Decision Against New York Attorney General Should Not Affect this Case
The lead plaintiff in a federal securities action against Exxon Mobil Corporation told the federal district court for the Northern District of Texas that a New York State court’s rejection of the New York attorney general’s fraud claims against Exxon should have no impact on the district court’s previous denials of Exxon’s motion to dismiss the securities action. The plaintiff argued that the claims in this action were not dependent on evidence or allegations at issue in the New York decision, that the New York decision’s factual findings did not provide a basis for finding the plaintiff’s claims in this case implausible, and that the limited evidence produced to date strongly supported the plaintiff’s claims. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111 (N.D. Tex. Oct. 2, 2020).
New Lawsuit Challenging Amended NEPA Regulations Focused on CAFO Exemptions
Six organizations led by Iowa Citizens for Community Improvement filed a lawsuit in federal court in the District of Columbia challenging the Council on Environmental Quality’s amendments to the NEPA regulations. It is the fifth lawsuit filed challenging the amended regulations; the cases are pending in four district courts. The plaintiffs in this case alleged that the amendments give “yet another free pass” to the concentrated animal feeding operation (CAFO) industry by restricting NEPA review of federal funding for the CAFO industry. The complaint alleged that CAFOs and the slaughterhouses they supply “cause and exacerbate climate change and harm rural community and economic health, drinking water quality and quantity, air quality, endangered species, the confined animals themselves, and other aspects of the human environment.” Iowa Citizens for Community Improvement v. Council on Environmental Quality, No. 1:20-cv-02715 (D.D.C., filed Sept. 23, 2020).
Center for Biological Diversity Sought to Compel Listing Determination on Rare Lizards Threatened by Sea Level Rise
Center for Biological Diversity (CBD) filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Fish and Wildlife Service’s failure to determine whether eight species of Caribbean skink warrant protection under the Endangered Species Act. The complaint alleged that skinks are rare lizards “endemic to a few islands in the Caribbean Sea and found nowhere else on earth” that are in “steep decline from threats including habitat destruction and degradation, human-introduced predators, climate change, and accelerating sea level rise.” CBD alleged that it had petitioned the FWS to list the skins in February 2014, that the FWS determined there was substantial scientific or commercial information indicating that listing may be warranted in 2016, and that the FWS had subsequently failed to make a listing determination. Center for Biological Diversity v. Bernhardt, No. 1:20-cv-2714 (D.D.C., filed Sept. 23, 2020).
Lawsuit Challenged Opening of Federal Land in Western Colorado to Oil and Gas Leasing
A second lawsuit was filed by conservation groups challenging the U.S. Bureau of Land Management’s (BLM’s) approval of a resource management plan (RMP) covering almost a million acres in western Colorado. (Six other organizations filed a lawsuit in August.) The approval made 95% of the area covered by the RMP available for oil and gas leasing. The petitioners asserted that BLM violated NEPA, the Federal Land Policy and Management Act, and the Administrative Procedure Act, including by failing to take a hard look at climate change impacts. Western Slope Conservation Center v. U.S. Bureau of Land Management, No. 1:20-cv-02787 (D. Colo., filed Sept. 15, 2020).
U.S. Appealed District Court’s Rejection of Challenges to Linkage Between California and Quebec Cap-and-Trade Programs
The United States filed an appeal from the judgment in favor of California and other defendants in the U.S. case challenging agreements linking California’s greenhouse gas emissions cap-and-trade agreement with the trading program of provincial government of Quebec, Canada. The district court rejected the U.S.’s claims that the linkage violated the Treaty and Compact Clauses and was preempted under the Foreign Affairs Doctrine. United States v. California, No. 2:19-cv-02142 (E.D. Cal. Sept. 14, 2020), No. 20-16789 (9th Cir.).
Two Lawsuits Challenged Oil and Gas Leasing Program in Arctic National Wildlife Refuge
Two more lawsuits were filed in the federal district court for the District of Alaska challenging federal defendants’ approval of an oil and gas leasing program on the Coastal Plain of the Arctic National Wildlife Refuge. Plaintiffs in one case are three federally recognized Indian Tribes; plaintiffs in the other suit are 15 states. In both cases, the plaintiffs asserted claims under NEPA, the National Wildlife Refuge System Administration Act, the Alaska National Interest Lands Conservation Act, the Administrative Procedure Act, and the Tax Cuts and Jobs Act of 2017. The tribes also asserted a claim under the National Historic Preservation Act. With respect to climate change, the tribes contended that the defendants failed to meaningfully analyze climate change in relation to subsistence, sociocultural systems, and environmental justice; cultural resources; caribou; migratory waterfowl; vegetation, tundra, and wetlands; and soils, permafrost, sand, and gravel. The states alleged that the analysis of greenhouse gas emissions and climate change impacts was inadequate because it “drastically” underestimated the leasing program’s indirect greenhouse gas emissions, failed to quantify costs from greenhouse gas emissions and climate change, and failed to meaningfully analyze climate impacts of methane emissions or cumulative impacts of greenhouse gas emissions. Washington v. Bernhardt, No. 3:20-cv-00224 (D. Alaska, filed Sept. 9, 2020); Native Village of Venetie Tribal Government v. Bernhardt, No. 3:20-cv-00223 (D. Alaska, filed Sept. 9, 2020).
Lawsuit Challenged Chicken Slaughterhouse’s Water Use as Unconstitutional
Animal Legal Defense Fund (ALDF) filed a lawsuit in California Superior Court alleging that a chicken slaughterhouse’s use of millions of gallons of groundwater was unreasonable in violation of Article X, Section 2, of the California Constitution. ALDF alleged that the water use violated the Constitution for multiple reasons, including that “California is plagued with drought that is exacerbated by the effects of climate change, and there exists an ever-increasing need for water conservation,” and that the state of existing water resources was “dire” and would continue to be worsened by climate change. Animal Legal Defense Fund v. Foster Poultry Farms, No. __ (Cal. Super. Ct., filed Sept. 2, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Supreme Court of Spain Admitted Climate Case Against the Government of Spain
On September 15, 2020, Greenpeace Spain, Oxfam Intermón, and Ecologistas en Acción filed suit against the Spanish Government, alleging failure to take adequate action on climate change. The plaintiffs assert that Spain is in violation of Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. According to plaintiffs, by last December Spain should have approved a National Energy and Climate Plan and Long Term Strategy, and the draft plan is not consistent with the Paris Agreement and IPCC recommendations to keep global warming to 1.5 degrees Celsius. According to news reports, the complaint seeks an order compelling greater climate action.
On September 30, 2020, the Supreme Court admitted the statement of claim and required the Ministry of the Presidency to present its administrative file within 20 days. Greenpeace v. Spain (Supreme Court of Spain).
Solar Power Plant Owners and Residents Near Biomass Plants Sued the South Korean Government to Challenge Biomass Subsidies
On September 28, 2020, more than 60 solar power plant owners and residents near biomass plants sued the South Korean government in the South Korean Constitutional Court, challenging biomass subsidies on climate and pollution grounds. The plaintiffs allege that the South Korean New and Renewable Energy Promotion Act and regulations treat biomass generation as renewable and low or zero carbon, thus making it eligible for significant subsidies. According to the plaintiffs, however, biomass generation leads to forest devastation, higher CO2 emissions than coal, and local air pollution. As a result, South Korea’s biomass policy violates South Korean constitutional environmental rights.
The plaintiffs also allege that Korean biomass policy infringes on the property rights of solar power plant owners and other renewable energy developers. They argue that the false classification of biomass burning as carbon neutral and renewable diverts subsidies away from other, truly carbon neutral resources. Korean Biomass Plaintiffs v. South Korea (South Korean Constitutional Court).
Polish Judge Said Operators of Europe’s Largest Emitting Coal Plant Must Negotiate with ClientEarth to Reduce Climate Impacts
In September 2019, environmental law organization ClientEarth filed a lawsuit in the District Court of Lodz seeking to reduce greenhouse gas emissions from Europe’s largest power plant, Belchatow, owned and operated by Polska Grupa Energetyczna (PGE).
On September 22, 2020, the judge in the case ruled that PGE must negotiate with ClientEarth to attempt to reach a settlement within three months to swiftly reduce Belchatow’s climate impacts. ClientEarth demands that PGE close 11 of 12 coal units at Belchatow by 2030, and the last by 2035, while PGE’s existing schedule would close them by 2040 after existing reserves are depleted. According to ClientEarth, this marks the first time a Polish Court has required a coal plant to engage in such negotiations to reduce climate emissions. ClientEarth v. Polska Grupa Energetyczna (Regional Court in Lodz).
Australian Youth Sought Injunction to Block Extension of a Coal Mine
On September 8, 2020, eight young people filed a putative class action in Australia’s Federal Court to block a coal project. The lawsuit seeks an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claim to represent all people under 18, and argue that Federal Minister Sussan Ley has a common law duty of care for young people. They further assert that digging up and burning coal will exacerbate climate change and harm young people in the future. Sharma and others v. Minister for the Environment (Federal Court of Australia).
Ontario Court Struck Down Law Requiring Gas Pumps to Post Carbon Tax Notices
On September 4, 2020, an Ontario court struck down legislation requiring gas pumps to post notices informing customers that Canada’s carbon pricing scheme will “cost” them.
In 2018 Canada enacted the Greenhouse Gas Pollution Pricing Act, which imposed a nationwide price on carbon. In May 2019, the Ontario Legislature enacted the Federal Carbon Tax Transparency Act, which required that a notice explaining certain fuel charges be posted on every gas pump in every gas station in Ontario. The notice stated “the federal carbon tax will cost you,” with a graph showing costs to consumers rising through 2022. Corporation of the Canadian Civil Liberties Association (CCLA) brought suit seeking a declaration that the legislation violated the Canadian Charter of Rights and Freedoms.
The court concluded that CCLA had public interest standing to bring the action, particularly because the group had tried to find a gas retailer to act as a co-plaintiff. The court then concluded that the required notice adversely affected expression. Moreover, the court reasoned, the notice was “inaccurate in a way that the Ontario government well knows” because the carbon pricing act serves a regulatory rather than a revenue-raising purpose, and so is not a tax. Finally, the court held that the notice’s infringement on free speech was not justified because it served more to advance a partisan message than to share information with the public. The court ordered that the gas retailers may but do not need to keep the notices on their fuel pumps. Corporation of the Canadian Civil Liberties Association v. Attorney General of Ontario (Ontario Superior Court of Justice).
Newly Available English Translation of 2018 Nepal Decision: Nepal Supreme Court Ordered Government to Enact New Climate Change Law
On August 23, 2017, Padam Bahadur Shrestha filed an application to compel the government of Nepal to enact a new climate change law. When the authorities failed to respond, Shrestha petitioned the Supreme Court of Nepal to issue a writ of mandamus or other appropriate order to enact such a law. According to the petition, the Environmental Protection Act of 1997 was inadequate because it did not address climate change, the Climate Change Policy of 2011 had not been implemented, and as a result, the humans and ecosystems of Nepal had experienced grave climate impacts. Shrestha alleged that the government’s failure to adequately address climate had violated the rights to a dignified life and a healthy environment guaranteed in the Constitution of Nepal, and violated Nepal’s commitments under the UNFCCC and the Paris Agreement.
In a decision issued on December 25, 2018, the Supreme Court ordered the government of Nepal to enact a new climate change law to mitigate and adapt to the effects of climate change, to reduce the consumption of fossil fuels and promote low carbon technologies, and to develop scientific and legal instruments to compensate those harmed by pollution and environmental degradation, among other provisions. The Court said that a new law was needed to effectuate Nepal’s commitments under the Paris Agreement and obligations under the Constitution. The Court further reasoned that the Environmental Protection Act of 1997 was inadequate to address needed climate change mitigation and adaptation, and ordered the government to implement existing national climate policy until the new law would be enacted.
Subsequent to the Supreme Court decision, the government of Nepal passed the Environment Protection Act of 2019 and the Forests Act of 2019. Shrestha v. Office of the Prime Minister (Nepal Supreme Court).
