November 2020 Updates to the Climate Case Charts

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 # 139.

FEATURED CASE

Oregon Supreme Court Said Public Trust Doctrine Did Not Impose Obligation to Protect Resources from Climate Change

The Supreme Court of Oregon rejected youth plaintiffs’ arguments that the public trust doctrine should be expanded to encompass additional natural resources and that the doctrine imposes affirmative fiduciary obligations on the State to protect trust resources from substantial impairment caused by climate change. With respect to the scope of the doctrine, the Supreme Court said the public trust doctrine extends both to the State navigable waters and to the State’s submerged and submersible lands. (A trial court had interpreted the scope more narrowly.) Although the court agreed with the plaintiffs that the doctrine “can be modified to reflect changes in society’s needs,” the court rejected the plaintiffs’ “expansive test” for determining which resources should be protected, finding that the plaintiffs’ two-factor test—(1) Is the resource not easily held or improved and (2) Is the resource of great value to the public for uses such as commerce, navigation, hunting, and fishing—would fail to provide “practical limitations.” The court therefore declined to expand the doctrine to cover additional resources, including the atmosphere. Regarding the State’s obligations under the public trust doctrine, the court rejected the plaintiffs’ contention that the doctrine imposes obligations like the obligations trustees of private trusts owe to beneficiaries. The court indicated that importing private trust principles “could result in a fundamental restructuring of the public trust doctrine and impose new obligations on the State.” The chief justice dissented, writing that in her view the judicial branch has “a role to play” in addressing the harms of climate change. She said the court “can and should issue a declaration that the state has an affirmative fiduciary duty to act reasonably to prevent substantial impairment of public trust resources.” Chernaik v. Brown, No. S066564 (Or. Oct. 22, 2020).

DECISIONS AND SETTLEMENTS

First Circuit Affirmed Order Sending Rhode Island’s Climate Case Back to State Court

The First Circuit Court of Appeals affirmed a district court order remanding to state court the State of Rhode Island’s lawsuit that seeks relief from oil and gas companies for climate change injuries allegedly caused by the companies’ actions. The First Circuit—like the Fourth, Ninth, and Tenth Circuits in other climate change cases—concluded that the scope of its appellate review was limited to whether the defendants properly removed the case under the federal-officer removal statute. The First Circuit stated that it was “persuaded that to allow review of every alleged ground for removal rejected in the district court’s order would be to allow [the statutory exception allowing review of federal-officer removal] to swallow the general rule prohibiting review” of remand orders. The First Circuit further concluded that federal-officer removal did not apply in this case, finding that the companies’ actions in connection with three contracts with the federal government concerning oil and gas production did not have a nexus with Rhode Island’s allegations that the companies engaged in misleading marketing about the impacts of products they sold in the state. The First Circuit issued its decision several weeks after the Supreme Court agreed to review the issue of the scope of appellate review of remand orders in Baltimore’s case against energy companies. State court proceedings in Rhode Island’s case were put on hold in August pending the U.S. Supreme Court’s and Rhode Island Supreme Court’s consideration of personal jurisdiction issues in unrelated cases. Rhode Island v. Shell Oil Products Co., No 19-1818 (1st Cir. Oct. 29, 2020).

Tenth Circuit Ordered Coal Company to Stop Preparation for Mining in Colorado Roadless Area

The Tenth Circuit Court of Appeals granted environmental groups’ emergency motion for an injunction barring a coal company “from imminently bulldozing additional drilling pads” and “drilling methane ventilation boreholes in preparation for coal mining in the Sunset Roadless Area” in Colorado. The Tenth Circuit ordered the injunction to remain in place pending consideration of the environmental groups’ appeal of a district court order that declined to vacate mining lease modifications that authorized road construction in the Sunset Roadless Area. Although the Tenth Circuit vacated an exception to the Colorado Roadless Rule in March 2020, the district court concluded that it could not enjoin the coal companies’ activities because all challenges to the mining lease modifications had been resolved in the federal defendants’ favor. High Country Conservation Advocates v. U.S. Forest Service, No. 20-1358 (10th Cir. Oct. 29, 2020).

D.C. Circuit Allowed EPA Amendments to Emission Standards for Oil and Gas Sector to Take Effect

On October 27, 2020, the D.C. Circuit denied emergency motions for a stay preventing the U.S. Environmental Protection Agency’s amendments to the 2012 and 2016 new source performance standards for the oil and gas sector from taking effect. The court said the petitioners—20 states, three cities, and 10 environmental groups—had not satisfied the “stringent requirements for a stay pending court review.” Judge Judith W. Rogers would have granted the motions for stay. The court’s order also dissolved the administrative stay that had been in place since September 17, denied the environmental groups’ motion for summary vacatur (because the “merits of the parties’ positions are not so clear as to warrant summary action”), granted motions to intervene, and established a briefing schedule, with the petitioners’ briefs due on December 7, 2020 and briefing completed on February 10, 2021. California v. Wheeler, No. 20-1357 (D.C. Cir. Oct. 27, 2020).

Ninth Circuit Directed District Court to Grant EPA More Time for Federal Implementation Plan for Landfill Emissions

The Ninth Circuit Court of Appeals ruled that a district court should have granted the U.S. Environmental Protection Agency’s (EPA’s) request for modification of an injunction requiring EPA to issue a federal plan for implementation of emission guidelines for municipal landfills by November 2019. The emission guidelines—adopted in August 2016—were intended to reduce emissions of landfill gas and its components, including methane, from existing landfills. The Ninth Circuit held that because EPA, after the district court injunction, issued final rules that extended EPA’s deadline for issuing the federal plan, the law that formed the basis of the district court’s injunction had changed, and the district court abused its discretion by refusing to modify the injunction “even after its legal basis has evaporated.” The Ninth Circuit was not persuaded by the plaintiff states’ argument that “precedent requires a broad, fact-intensive inquiry into whether altering an injunction is equitable, even if the legal duty underlying the injunction has disappeared.” The Ninth Circuit also found that modification of the injunction due to EPA’s rulemaking action did not threaten separation of powers. The court wrote that ultimately it saw “a greater threat to the separation of powers by allowing courts to pick and choose what law governs the executive branch’s ongoing duties.” California v. EPA, No. 19-17480 (9th Cir. Oct. 22, 2020).

D.C. Circuit Merits Panel to Decide Most Issues Related to Administrative Record Content in Challenges to Light-Vehicle Standards; Briefing to Begin in January

In the cases challenging the revised greenhouse gas emission and fuel economy standards for light-duty vehicles, the D.C. Circuit Court of Appeals granted petitioner Competitive Enterprise Institute’s (CEI’s) motion to complete the record to the extent it requested the inclusion of EPA’s December 2019 Integrated Science Assessment for Particulate Matter in the administrative record. CEI argued that it should be included because EPA explicitly relied on it. The D.C. Circuit referred the remainder of CEI’s motion to the merits panel, along with the entirety of a motion by State and Municipal and Public Interest Petitioners to complete and supplement the record. The other documents CEI seeks to add to the record are two Clean Air Scientific Advisory Committee peer review reports; CEI argued that EPA Administrator Andrew Wheeler had said he considered these reports. The State and Municipal and Public Interest Petitioners asked that the record include certain documents related to interagency review; the petitioners said these documents were probative of their claim that EPA failed to exercise independent judgment or apply technical expertise. The D.C. Circuit’s order also established the briefing schedule for the cases, with three initial briefs from petitioners due on January 14, 2021, respondents’ brief due April 14, 2021, and reply briefs due June 1, 2021. The petitioners had asked for a more accelerated briefing schedule that would have allowed for oral argument in the current term; they had also requested that they be permitted to file five briefs. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir. Oct. 19, 2020).

California Federal Court Entered Final Judgment Vacating Repeal of 2016 Waste Prevention Rule After Wyoming Federal Court Vacated 2016 Rule

On October 29, 2020, the federal district court for the Northern District of California entered judgment vacating the 2018 final rule rescinding the U.S. Bureau of Land Management’s 2016 Waste Prevention Rule. The federal defendants and trade group intervenor-defendants have appealed the court’s July 2020 decision vacating much of the 2018 rule. On October 8, the District of Wyoming vacated the 2016 rule, with judgment entered on October 23. No appeals have been filed yet. California v. Bernhardt, No. 4:18-cv-05712 (N.D. Cal. Oct. 29, 2020).

Montana Federal Court Denied Requests to Stop Work on Keystone Pipeline, Asked for More Briefing on Separation of Powers Issues

In two lawsuits challenging the 2019 Presidential Permit for the Keystone XL pipeline, the federal district court for the District of Montana denied requests to enjoin work on the pipeline. The court found that the plaintiffs failed to show “at this juncture” that they were likely to succeed on the merits of their claims and that they also failed to show they were likely to suffer irreparable injury. The court—which concluded that the Presidential Permit authorized only a 1.2-mile  border-crossing segment of the pipeline and not, as the plaintiffs argued, the additional 875 miles of pipeline in the U.S.—found that alleged irreparable injuries outside the scope of what the permit authorized were “beyond the scope of the relief available.” Although the court found that each side had “valid arguments for their side in the balance of equities and public interest,” including the plaintiffs’ allegations of climate change harms caused by Keystone’s eventual operation, the court found that the “weight of these factors remains unclear and fails to compel the granting of preliminary relief.”

In the lawsuit brought by Indigenous Environmental Network and North Coast Rivers Alliance, the court also denied motions to amend the complaint to add President Trump’s executive order concerning permitting of facilities at international boundaries and to add a claim challenging a right-of-way permit from the U.S. Bureau of Land Management (BLM). The court rejected the former set of amendments on the grounds of futility, undue delay, and the plaintiffs’ previous opportunity to amend, and the latter on the grounds of undue delay, unfair prejudice to the defendants and defendant-intervenors, and judicial economy.

In the lawsuit led by the Rosebud Sioux Tribe, the court also rejected any addition of claims related to BLM’s right-of-way permit. In addition, the court granted summary judgment to the defendants on the plaintiffs’ treaty-based claims due to the court’s determination that the Presidential Permit’s scope was limited to the 1.2-mile segment and did not affect tribal land.

In both cases, the court asked for supplemental briefing on the remaining constitutional issues, focused on separation of powers issues related to border-crossing pipeline permits. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. Oct. 16, 2020); Rosebud Sioux Tribe v. Trump, 4:18-cv-00118 (D. Mont. Oct. 16, 2020).

Federal Court Found No-Jeopardy Determination for Sea Turtles Failed to Sufficiently Address Climate Change

The federal district court for the District of Columbia cited failures to address climate change as one of the bases for finding that a biological opinion for continued authorization of the Southeast U.S. shrimp fisheries in federal waters was arbitrary and capricious. The biological opinion found that the fisheries would not jeopardize continued existence of the Atlantic populations of sea turtles. The court agreed with the plaintiff that the National Marine Fisheries Service (NMFS) had not provided a reasoned basis for its no-jeopardy conclusion because it did not explain how it reached the conclusion in light of significant effects from climate change that were discussed in other parts of the biological opinion. The court also found that the NMFS did not have a reasoned basis for the conclusion that changes in oceanic conditions would not substantially impact sea turtles since there was “substantial evidence” in the record that climate change would have “significant impacts” on sea turtles. Oceana, Inc. v. Ross, No. 15-cv-0555 (D.D.C. Oct. 9, 2020).

Federal Court Vacated Negative Jurisdictional Determination for Salt Ponds Connected to San Francisco Bay

The federal district court for the Northern District of California vacated EPA’s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act, holding that EPA misapplied precedent regarding what constitutes “fast land,” which is not subject to federal jurisdiction. The court concluded that although levees built before the Clean Water Act’s enactment would not be subject to Clean Water Act jurisdiction, the salt ponds themselves could remain subject to Clean Water Act jurisdiction because they are wet, not uplands, and have “important interconnections” to San Francisco Bay. Since EPA’s negative jurisdictional determination was “solely” anchored in its finding that the salt ponds were “transformed into fast last prior to passage” of the Clean Water Act, the court set aside the determination and remanded for evaluation of “the extent of nexus between the salt ponds and the Bay and the extent to which they significantly affect the chemical, physical, and biological integrity of the Bay and take into account all other factors required by law.” The court’s decision did not address the plaintiffs’ allegations that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California’s ability to mitigate sea level rise impacts. San Francisco Baykeeper v. EPA, No. 3:19-cv-05941 (N.D. Cal. Oct. 5, 2020).

Federal Court Satisfied with Agency’s New Explanations About Short-Term Climate Impacts on Loggerhead Turtles

The federal district court for the District of Columbia found that a revised biological opinion prepared by the National Marine Fisheries Service sufficiently responded to two issues that the court ordered the NMFS to address in a 2015 decision. One of the issues concerned the discussion of short-term impacts of climate change in the biological opinion, which addressed the impact of seven fisheries on the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles. The 2015 decision directed the NMFS to “more clearly explain the connection between the record evidence of present and short-term effects caused by climate change, and the agency’s conclusion that climate change will not result in any significant effects on the species in the short-term future.” The court concluded that on remand the NMFS provided a reasoned basis for its conclusion about the short-term effects of climate change, noting that the NMFS had clarified “that while there is record evidence of past and expected future climate change, in the short-term these effects from climate change will not result in a ‘significant effect’ on sea turtles in the action area, specifically.” The court also found that the NMFS had adequately responded to the court’s identification of a need for further explanation of the conclusion that short-term effects on loggerheads would be negligible, given evidence in the record of rapid sea level rise in a 620-mile “hot spot” on the East Coast. In addition, the court said its remand to the NMFS did not require the agency to update the administrative record with more recent climate change studies, and that there was no need for the court to assess the new studies’ impacts on the NMFS’s conclusion. The court noted that the NMFS had reinitiated consultation and was reviewing new information that had become available since 2013. Oceana, Inc. v. Ross, No. 1:12-cv-00041 (D.D.C. Oct. 1, 2020).

Alabama Federal Court Dismissed Challenge to TVA Environmental Review of Rate Changes for Distributed Energy

The federal district court for the Northern District of Alabama dismissed on standing grounds a lawsuit asserting that the Tennessee Valley Authority’s (TVA’s) environmental review for rate changes that affected rates for distributed energy resources such as rooftop solar did not satisfy the requirements of the National Environmental Policy Act. The court agreed with TVA that individual members of the plaintiff organizations had failed to prove an injury “fairly traceable” to the rate change because the plaintiffs did not provide evidence that a decrease in investment in distributed energy resources would result in an increase in fossil fuel use. The court concluded, moreover, that even if the link could be proved, the plaintiffs failed to demonstrate the “requisite geographic nexus between the alleged pollution and their particular interests.” Center for Biological Diversity v. Tennessee Valley Authority, No. 3:18-cv-01446 (N.D. Ala. Sept. 30, 2020).

Maine High Court Said State Law Would Not Preempt Local Ordinance Prohibiting Crude Oil Loading

The Maine Supreme Judicial Court answered certified questions from the First Circuit concerning state law preemption of a City of South Portland ordinance that prohibited bulk loading of crude oil onto vessels in the City’s harbor. A federal district court rejected a challenge to the ordinance in 2018. The Maine high court said a license issued by the Maine Department of Environmental Protection for a marine oil terminal facility was not an “order” within the meaning of the Maine Coastal Conveyance Act that could have preemptive effect and, moreover, that the license was not in conflict with the ordinance, even if it could be considered an order. The court also concluded that the Coastal Conveyance Act as a whole did not preempt the City’s ordinance by implication. Portland Pipe Line Corp. v. City of South Portland, No. Fed-20-40 (Me. Oct. 29, 2020).

NEW CASES, MOTIONS, AND NOTICES

Maui County Filed Climate Change Suit Against Fossil Fuel Companies

On October 12, 20201, the County of Maui filed a lawsuit in Hawai‘i Circuit Court against fossil fuel companies seeking to hold them liable for climate change impacts. Defendants Chevron Corporation and Chevron U.S.A. Inc. removed the case to federal court on October 30 and indicated that all other joined and served defendants consented to removal. In its complaint, Maui alleged that the defendant companies were “directly responsible for the substantial increase in all CO₂ emissions between 1965 and the present” and that but for the defendants’ participation in “denialist campaigns” to mislead the public about the role of their products in causing climate change, the impacts of climate change “would have been substantially mitigated or eliminated altogether.” The adverse climate change impacts alleged to affect Maui include sea level rise and related flooding, inundation, erosion, and beach lose; extreme weather; ocean warming and acidification; increasingly scarce freshwater supplies; loss of habitat for endemic species; and social and economic consequences of these environmental changes. Maui asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass. The complaint asked the court for compensatory damages, equitable relief, attorneys’ fees, punitive damages, disgorgement of profits, and costs of suit. County of Maui v. Sunoco LP, No. 2CCV-20-0000283 (Haw. Cir. Ct., filed Oct. 12, 2020).

Developments in other cases brought by local governments or states against fossil fuel companies included:

• City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J.): Defendants removed the case to federal court on October 9, 2020.
• City & County of Honolulu v. Sunoco LP, No. 20-cv-00163 (D. Haw.): Defendants submitted their opposition to Honolulu’s motion to remand the case to state court on October 9, 2020. On November 4, the court sua sponte stayed proceedings pending completion of briefing on the anticipated motion to remand in the County of Maui case.
• District of Columbia v. Exxon Mobil Corp., No. 1:20-cv-01932 (D.D.C.): Defendants submitted their opposition to the remand motion on October 15, 2020.
• Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del.): Defendants removed the case to federal court on October 23, 2020.

ExxonMobil Asked Texas Supreme Court to Review Denial of Presuit Discovery Against California Cities and Counties

Exxon Mobil Corporation (ExxonMobil) filed a petition in the Texas Supreme Court seeking review of an intermediate appellate court’s reversal of a trial court order that permitted ExxonMobil to seek presuit discovery against California cities and counties that had filed lawsuits in California to hold ExxonMobil and other energy companies liable for the impacts of climate change. ExxonMobil sought to conduct the discovery—which also would extend to California local officials and an outside attorney—“to evaluate potential claims for constitutional violations, abuse of process, and civil conspiracy” arising from “an alleged conspiracy … to use tort lawsuits against ExxonMobil and seventeen other Texas-based energy companies as a pretext to suppress Texas-based speech about climate and energy policies.” ExxonMobil asked the Texas Supreme Court to “confirm that longstanding precedent of this Court and the U.S. Supreme Court supports exercising jurisdiction over the potential defendants for their improper effort to suppress speech in Texas.” Exxon Mobil Corp. v. City of San Francisco, No. 20-0558 (Tex. Oct. 2, 2020).

Supreme Court Invited Solicitor General to Weigh in on Wyoming and Montana’s Case Against Washington for Denying Port Access for Coal

On October 5, 2020, the U.S. Supreme Court invited the Acting Solicitor General to file a brief expressing the United States’ view on Montana and Wyoming’s motion for leave to file a bill of complaint asserting that the State of Washington had denied access to its ports for shipments of Montana and Wyoming’s coal in violation of the dormant Commerce Clause and the Foreign Commerce Clause. Montana v. Washington, No. 22O152 (U.S. Oct. 5, 2020).

Organizations Challenged Department of Energy Rule for Setting Energy Conservation Standards

Natural Resources Defense Council and three other organizations filed a petition for review in the Ninth Circuit Court of Appeals challenging the U.S. Department of Energy’s final rule that amended the procedures for establishing energy conservation standards for appliances. The amended rule changed the process for determining whether a standard is “economically justified.” Natural Resources Defense Council, Inc. v. Brouillette, No. 20-73091 (9th Cir., filed Oct. 16, 2020).

Organizations Challenged Environmental Review for Electric Transmission Project in Maine

Sierra Club and two other groups filed a lawsuit asserting that the U.S. Army Corps of Engineers violated the National Environmental Policy Act and the Administrative Procedure Act when the agency reviewed a proposed 171.4 miles of electrical transmission lines and related facilities in Maine. The plaintiffs alleged that evidence showed that the project—for which the “stated purpose is to fulfill long-term contracts for ‘clean energy’ projects with the State of Massachusetts”—would instead increase greenhouse gas emissions. The complaint alleged that the supplier of hydroelectric power that the project would transmit had “insufficient hydroelectric energy to provide incremental hydroelectricity to New England” and would instead “engage in arbitrage, moving sales from different markets without any real reductions in GHG emissions.” The complaint also alleged that construction and operation of hydropower “megadams” and their reservoirs increase greenhouse gas emissions and would present human rights and environmental justice issues. Sierra Club v. U.S. Army Corps of Engineers, No. 2:20-cv-00396 (D. Me., filed Oct. 27, 2020).

Conservation Groups Added Additional Claims to Challenge to Plan to Open More Land in Colorado to Oil and Gas Leasing

Six conservation groups filed an amended petition for review in their lawsuit challenging a resource management plan (RMP) for the Uncompahgre Field Office that expanded lands available to oil and gas leasing in southwestern Colorado. The petitioners—who filed suit in August—added causes of action under the Endangered Species Act related to the RMP’s impacts on the Gunnison sage-grouse as well as a cause of action asserting that the RMP was invalid because William Perry Pendley was unlawfully serving as acting director of the U.S. Bureau of Land Management when the RMP was finalized. Citizens for a Healthy Community v. U.S. Bureau of Land Management, No. 1:20-cv-2484 (D. Colo. Oct. 27, 2020).

Endangered Species Act Challenge to Gulf of Mexico Oil and Gas Leasing Program Cited Insufficient Analysis of Climate Change

Sierra Club and three other organizations challenged the National Marine Fisheries Service’s issuance of a programmatic biological opinion that governed oil and gas activities in the Gulf of Mexico. The plaintiffs’ arguments included that the NMFS failed to account for how alterations to the population structure and distribution of endangered and threatened species such as whales, sea turtles, and Gulf sturgeon due to climate change would interact with the proposed action’s effects. The plaintiffs also asserted that the NMFS failed to use best available science regarding climate change’s impacts on endangered and threatened species and their habitat. Sierra Club v. National Marine Fisheries Service, No. 20-cv-3060 (D. Md., filed Oct. 21, 2020).

WildEarth Guardians Appealed Decision that Rejected Claims of Climate Change Flaws in Review of Oil and Gas Leases

WildEarth Guardians filed an appeal in the Tenth Circuit Court of Appeals of the District of New Mexico’s August 2020 decision rejecting the bulk of WildEarth Guardian’s challenge to three leases for oil and gas development in southeastern New Mexico. The district court upheld, among other things, the U.S. Bureau of Land Management’s analysis of cumulative climate change impacts and found that use of the Social Cost of Carbon was not required. The Tenth Circuit abated the appeal pending the district court’s disposition of a motion for clarification filed by the federal defendants. WildEarth Guardians v. Bernhardt, No. 1:19-cv-00505 (D.N.M. Oct. 19, 2020), No. 20-2146 (10th Cir. Oct. 30, 2020).

Environmental Group Filed FOIA Lawsuit Seeking Documents Related to Federal Grid Reliability Project

Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit in federal district court in the District of Columbia alleging that the U.S. Department of Energy (DOE) failed to produce records in response to CBD’s August 2019 request for records related to the North American Energy Resilience Model (NAERM) project, which the complaint described as “an effort to model grid vulnerabilities across North America.” CBD alleged that it was concerned about “the extent to which NAERM may be biased to support reliance on gas, including fracked gas, as a resilience tool, at the expense of renewable energy sources, including wind and solar.” CBD sought records of communications between DOE and non-federal agency individuals, such as energy company employees, as well as records discussing NAERM’s costs, records regarding whether NAERM implementation would result in increased reliance on fossil fuels, and records mentioning or discussing the relationship between NAERM and wind and solar energy resources. Center for Biological Diversity v. U.S. Department of Energy, No. 1:20-cv-02950 (D.D.C., filed Oct. 15, 2020).

Second Lawsuit Filed to Challenge 211-Mile Mining Access Road in Alaska

The governing bodies of six federally-recognized Indian Tribes in Alaska and a consortium of tribal leaders filed a lawsuit challenging federal approvals of the Ambler Road Project, which their complaint described as a “a 211-mile, year-round, industrial access road that would traverse some of the most remote and undeveloped lands in Alaska” and “facilitate the construction of four large-scale mines for the extraction of copper, lead, zinc, silver, gold, cobalt, and molybdenum.” The plaintiffs asserted claims under the Alaska National Interest Lands Conservation Act, the National Historic Preservation Act, the National Environmental Policy Act (NEPA), the Clean Water Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act. The plaintiffs’ NEPA arguments include that the final environmental impact statement failed to adequately address climate change. Another lawsuit challenging the Ambler Road Project was filed in August. Alatna Village Council v. Padgett, No. 3:20-cv-00253 (D. Alaska, filed Oct. 7, 2020).

Environmental Groups Alleged Improper Deferral of CEQA Process for Water Tunnel

Sierra Club and four other organizations filed a lawsuit challenging California Department of Water Resources resolutions that authorized revenue bonds that the petitioners alleged would fund a tunnel under the Sacramento-San Joaquin Delta that “would divert large quantities of fresh water from the Sacramento-San Joaquin Delta for export south.” The petitioners alleged that adoption of the resolutions violated CEQA because the Department failed to prepare an environmental impact report prior to adoption. The petition indicated that the Department initiated the environmental review in January 2020 with issuance of a Notice of Preparation that listed 24 “probably significant environmental effects of the Project,” including changes in greenhouse gas emissions and increasing resiliency to respond to climate change. Sierra Club v. California Department of Water Resources, No. __ (Cal. Super. Ct., filed Oct. 27, 2020).

CEQA Challenge Said Analysis of Proposed Development’s Greenhouse Gas Emissions Was Inadequate

Environmental groups challenged the California Environmental Quality Act (CEQA) review of a development in the City of Santee that allegedly would be located on a 2,638-acre site and include 2,900 to 3,000 residential units, commercial structures, a road network, and other infrastructure. Among the alleged shortcomings of the environmental review was failure to adequately disclose, analyze, and mitigate significant direct, indirect, and cumulative greenhouse gas impacts. Preserve Wild Santee v. City of Santee, No. 37-2020-00038168-CU-WM-CTL (Cal. Super. Ct., filed Oct. 21, 2020).

Petroleum Trade Association Challenged Amended California Standards for At-Berth Marine Vessels

Western States Petroleum Association (WSPA) challenged the California Air Resources Board’s (CARB’s) adoption of amended emission control measures for ocean-going vessels at berth in California ports. WSPA contended that CARB violated the Global Warming Solutions Act of 2006 by adopting capture and control requirements that were not technologically feasible, were not cost-effective, and would not achieve the projected emissions benefits, and also by failing “to properly balance the relative emission contribution from tankers against other mobile source categories throughout the state, and unfairly penaliz[ing] terminals where tankers berth because of the extremely high implementation costs associated with attempting to install capture and control technology at these facilities.” WSPA also alleged that CARB failed to fully consider the amended regulations’ environmental impacts beyond greenhouse gases. Western States Petroleum Association v. California Air Resources Board, No. 20STCP03138 (Cal. Super. Ct., filed Sept. 28, 2020).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

Federal Court Judge in Canada Dismissed Lawsuit by Canadian Youth Against Canadian Government

On October 27, 2020, a Federal Court judge dismissed the lawsuit by Canadian youth against the Canadian government on a pretrial motion to strike for failing to state a reasonable cause of action. The plaintiffs plan to appeal.

Fifteen children and youths brought suit against the Queen and Attorney General of Canada in October 2019, alleging that Canada emits and contributes to emitting greenhouse gases that are incompatible with a stable climate. The plaintiffs argue that Canada’s actions have violated their rights under the Canadian Charter of Rights and Freedom, as well as the rights of present and future Canadian children under the public trust doctrine. They seek declaratory relief and an order requiring the government to adopt a Climate Recovery Plan.

In dismissing the case, the judge ruled that the plaintiffs’ claims that Canada’s conduct violated their rights under the Charter of Rights and Freedoms are not justiciable and state no reasonable cause of action. According to the judge, the claims are not justiciable because they allege “an overly broad and unquantifiable number of actions and inactions on the part of the Defendants.” Similarly, these claims do not state a reasonable cause of action because they point to broad and diffused conduct by the government and do not identify a particular law that burdens youth.

The judge found that the plaintiffs’ claims that the government’s conduct violated the public trust doctrine was justiciable, but similarly found that it stated no reasonable cause of action because the claim was extensive, had no definable limits, and was not consistent with incremental evolutions in the law. La Rose v. Her Majesty the Queen (Canadian Federal Court).

Greenpeace Mexico Brought Case Alleging Mexico’s Energy Sector Policy Violates Human Rights by Promoting Fossil Fuels at the Expense of Renewables

On August 20, 2020, Greenpeace Mexico filed a complaint in the District Court in Mexico City against Mexico’s new Energy Sector Program for 2020-2024. The Program was finalized on July 8, 2020. The complaint alleges that the Program violates human rights—including the right to a healthy environment and right of access to electricity based on renewable sources—by promoting fossil fuel use at the expense of investments in renewable energy, greenhouse gas emissions reduction, and adaptation. On September 21, the Court stayed the Program pending resolution of the case. Greenpeace Mexico v. Ministry of Energy and Others (Mexican District Court in Administrative Matters)

Austrian Constitutional Court Dismissed Case Challenging Air Travel Tax Credits

On February 20, 2020, Greenpeace Austria and 8,063 petitioners filed a request with the Constitutional Court to invalidate tax exemptions that give credits to air travel and not railways. The request arises out of Article 2 and Article 8 of the European Convention on Human Rights, Article 2 and Article 7 of the Charter of Fundamental Rights, and the principle of equality before the law. The submission also contains a request for preliminary ruling with the European Court of Justice regarding the legal nature of Article 37 of the Charter of Fundamental Rights.

On September 30, 2020 the Constitutional Court dismissed the case as inadmissible on the grounds that rail passengers do not have standing to sue over preferential tax treatment given to air travel. Greenpeace et al. v. Austria (Austrian Constitutional Court).

In 2019, Ontario Court Dismissed Case Challenging Undoing of Cap and Trade Program

Environmental groups filed suit against the Ontario government, alleging the government failed to meet legal requirements for public consultation on regulations that would end Ontario’s cap-and-trade program and a proposed bill that would undercut the province’s legislative regime for combating climate change. Plaintiffs argued that both the regulations and bill violate requirements under the Environmental Bill of Rights for public participation in the development of environmentally significant regulations and legislation.

On October 11, 2019, the Superior Court of Ontario dismissed Greenpeace’s case on the grounds that declaratory relief was not available. Two of the three judges reasoned that declaratory relief would have no practical effect because the statute that gave authority for the regulation at issue had been repealed. Had declaratory relief been able to have practical effect, two of the judges would have found that the Ontario government was required to participate in public participation before enacting the canceling regulation. Greenpeace Canada v. Minister of the Environment, Conservation, and Parks; Lieutenant Governor in Council (Superior Court of Justice in Ontario).