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 # 140.
FEATURED CASE
Federal Court Found Flaws in New Climate Change Analysis for Wyoming Oil and Gas Leases
The federal district court for the District of Columbia ruled that the U.S. Bureau of Land Management (BLM) failed to adequately consider the climate change impacts of oil and gas leasing in Wyoming in accordance with the court’s March 2019 opinion that identified shortcomings in BLM’s original analysis under the National Environmental Policy Act. First, the court found that BLM’s cumulative impacts analysis was still inadequate because BLM’s supplemental environmental assessment (EA) did not adequately explain and failed to consistently apply a standard for determining what lease sales were reasonably foreseeable at the regional and national level. Second, the court concluded that BLM should have calculated and considered total greenhouse emissions, instead of merely relying on comparisons of yearly emission rates. Third, the court found that BLM used internally inconsistent emission rates. Fourth, the court found that BLM failed to engage in reasoned decision-making regarding whether to conduct a carbon budget analysis. Finally, the court rejected BLM’s argument that errors that the plaintiffs identified in the supplemental EA were “flyspecks”; the court indicated that “[w]hile each error in isolation may be merely a flyspeck, when considered together, the errors do raise concerns.” The court did not, however, accept the plaintiffs’ argument that uncertainty about forecasting greenhouse gas emission levels was a factor that would on its own require an environmental impact statement. The court also declined to vacate BLM’s leasing decisions and instead enjoined BLM from issuing drilling permits for the leases while it responds to the court’s decision. WildEarth Guardians v. Bernhardt, No. 1:16-cv-01724 (D.D.C. Nov. 13, 2020).
DECISIONS AND SETTLEMENTS
Trade Groups Proceeding with Narrower Challenge to 2016 Refrigerant Management Rule; NRDC and States Challenge 2020 Rescission of Portion of Rule
The D.C. Circuit granted a joint motion by two trade associations for voluntary dismissal of their lawsuits challenging 2016 updates to refrigerant management requirements under Section 608 of the Clean Air Act. At the U.S. Environmental Protection Agency’s (EPA’s) request, the D.C. Circuit held the proceedings challenging the 2016 rule in abeyance beginning in August 2018 while EPA considered changes to portions of the rule. In March 2020, EPA published a final rule rescinding part of the 2016 updates that extended appliance maintenance and leak detection requirements to appliances containing 50 pounds or more of certain “non-exempt” substitute refrigerants, including hydrofluorocarbons. The D.C. Circuit previously consolidated challenges to the 2020 rule with the trade associations’ challenges to the 2016 updates and also established a new docket for consideration of four issues that the two trade associations have raised in administrative petitions for reconsideration of the 2020 rule. The D.C. Circuit held this new proceeding in abeyance. Briefing in the challenges to the 2020 rule began in October, with state and municipal petitioners and Natural Resources Defense Council filing a joint brief arguing that the rescission of the appliance repair and leak detection requirements rested on an erroneous legal interpretation and that EPA acted arbitrarily and unreasonably by applying Section 608 inconsistently and disregarding prior findings. EPA’s brief is due December 15. National Environmental Development Association’s Clean Air Project v. EPA, No. 17-1016 (D.C. Cir. Nov. 30, 2020).
Fourth Circuit Vacated Denial of Small Refinery Exemption
The Fourth Circuit Court of Appeals again vacated a denial by EPA of a company’s request for a small refinery exemption from requirements of the renewable fuel standard program. In 2018, the court vacated EPA’s earlier denial of the request. In its November 17 opinion, the Fourth Circuit found that on remand from the 2018 decision EPA had addressed most of the deficiencies but that supplemental materials from another case called into question EPA assertions about the criteria the Department of Energy and EPA used to support denial. Ergon-West Virginia, Inc. v. EPA, No. 19-2128 (4th Cir. Nov. 17, 2020).
Ninth Circuit Rejected Claim That CEQA Applied to Taxi Rules for Airport Pickups
The Ninth Circuit Court of Appeals affirmed a district court judgment rejecting challenges to San Francisco regulations that dictated which taxi medallion holders could pick up passengers at San Francisco International Airport. Like the district court, the Ninth Circuit rejected an argument that the regulations were a “project” subject to the California Environmental Quality Act (CEQA) because the rules could impact the environment by increasing “deadhead” trips to and from the airport. The Ninth Circuit found that the complaint “has not plausibly alleged that the 2018 Regulations increase the number of taxis in circulation or authorize more fares.” San Francisco Taxi Coalition v. City & County of San Francisco, No. 19-16439 (9th Cir. Nov. 9, 2020).
Baltimore and Incinerator Operator Settled Lawsuit over Local Air Law
The City of Baltimore and the operator of a commercial waste-to-energy facility reached a settlement that resolved a case challenging the Baltimore Clean Air Act, a 2019 ordinance that set emission limits for incinerators, including stricter emission limits than required by the facility’s Title V permit for a number of pollutants as well as emission limits for pollutants not covered by the permit, including carbon dioxide. The case was currently pending before the Fourth Circuit after a federal district court in Maryland held that Maryland law preempted the local law. The settlement agreement requires the operator to invest in emissions control upgrades that meet or exceed the limits set by the local ordinance for some pollutants; the settlement does not establish limits on carbon dioxide emissions. Wheelabrator Baltimore, L.P. v. Mayor & City Council of Baltimore, No. 20-1473 (4th Cir. Nov. 4, 2020).
Second Circuit Agreed Brooklyn Man Had No Standing for Constitutional Claims Based on Community College’s Refusal to Distribute Paper on Climate Change “Hoax”
In an unpublished summary order, the Second Circuit Court of Appeals affirmed dismissal of a lawsuit brought by a Brooklyn man, proceeding pro se, who alleged that the president of a community college violated the plaintiff’s First Amendment rights by failing to require the distribution of the plaintiff’s position paper explaining “why the political movement to reduce the use of fossil fuels is a malicious hoax” to students taking a climatology course. The Second Circuit agreed with the district court that the plaintiff lacked standing because he failed to allege an injury in fact since he “never explained why he had any legal right to have the document distributed.” Roemer v. Williams, No. 20-127 (2d Cir. Nov. 2, 2020).
Federal Court in Washington Upheld Forest Restoration Plan
The federal district court for the Eastern District of Washington upheld the U.S. Forest Service’s approval of the Mission Restoration Project, a plan whose aims were described as restoration of approximately 50,200 in the Methow Valley in Washington “to be more resilient to wildfire and climate change.” The court found that the project was consistent with the Standards and Guidelines of the Okanogan National Forest Land and Resource Management Plan and Final Environmental Impact Statement and that the Forest Service complied with the National Environmental Policy Act and the Endangered Species Act. Alliance for the Wild Rockies v. U.S. Forest Service, No. 2:19-cv-00350 (E.D. Wash. Dec. 1, 2020).
Federal Court Said NOAA Justified Redaction of Communications Between Climate Scientist and White House During Obama Administration
The federal district court for the District of Columbia upheld the National Oceanic and Atmospheric Administration’s (NOAA’s) redaction of certain communications between a NOAA climate scientist and the director of the White House Office of Science and Technology Policy (OSTP) from January 20, 2009, through January 20, 2017. The court concluded that the Freedom of Information Act’s deliberative process privilege shielded the redactions from disclosure. The redacted material fell into four categories: draft analysis of lab work, discussions with OSTP about scientific interpretation and impacts of environmental data sets, discussions with OSTP about a draft memorandum analyzing a Cato Institute memorandum or a Wall Street Journal article, and communications about the content and presentation of press releases and talking points. The court found that a Vaughn index and declaration were sufficient to demonstrate that the redacted material was predecisional and deliberative. The court further found that NOAA satisfied the “foreseeable harm” standard of the FOIA Improvement Act with explanations of why disclosure of the information would endanger “frank discussions between subordinates and superiors” and potentially create “public confusion.” The court was not persuaded by the plaintiff’s argument that NOAA’s real reason for withholding the information was fear of “agency embarrassment” and “painting the agency in a negative light.” Judicial Watch, Inc. v. U.S. Department of Commerce, No. 17-cv-1283 (D.D.C. Nov. 25, 2020).
Federal Court Vacated Permits for Methanol Refinery and Export Terminal, Citing Failure to Consider Indirect Cumulative Greenhouse Gas Impacts
The federal district court for the Western District of Washington vacated U.S. Army Corps of Engineer permits for construction of a portion of a proposed methanol refinery and export terminal in Washington (the Kalama Project). The court found that the Corps’ failure to consider “reasonable foreseeable” greenhouse gas emissions outside Washington and part of Oregon was arbitrary and capricious because the Corps should have considered indirect cumulative effects such as increased fracking and related emissions as well as emissions from shipping methanol and producing olefins (using methanol) in other parts of the world. The court also held that the Corps violated NEPA by not considering the need to expand the regional gas pipeline system as a cumulative indirect effect of the project. The further found that the failure to prepare an environmental impact statement violated NEPA. In addition, the court found that the Corps did not correctly conduct a public interest assessment under the Clean Water Act and Rivers and Harbors Act because it failed to properly consider the project’s full cumulative impacts and “arbitrarily and capriciously relied on benefits of the Project in worldwide reduction of greenhouse gases [due to reduced use of coal to produce methanol] without conducting an assessment of the detriments worldwide.” The court denied a claim under the Endangered Species Act. Columbia Riverkeeper v. U.S. Army Corps of Engineers, No. 3:19-cv-06071 (W.D. Wash. Nov. 23, 2020).
Steel Mill Owner Dropped Suit Challenging Pipeline over Property
A steel mill owner agreed to dismiss with prejudice its claims that the U.S. Army Corps of Engineers violated the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, and the Administrative Procedure Act when it reauthorized and reissued Nationwide Permit 12 (NWP-12) and approved a gas pipeline over the plaintiff’s property under NWP-12. The complaint’s allegations included that the Corps failed to analyze NWP-12’s climate change impacts. In October, the federal district court for the Eastern District of Texas denied the plaintiff’s request for a preliminary injunction. Optimus Steel, LLC v. U.S. Army Corps of Engineers, No. 1:20-cv-00374 (E.D. Tex. Nov. 20, 2020).
Oklahoma Federal Court Allowed Landowner to Proceed with NEPA Challenge of Osage Nation Oil and Gas Leases
The federal district court for the Northern District of Oklahoma denied non-federal defendants’ motion to dismiss a landowner’s lawsuit claiming that the U.S. Bureau of Indian Affairs failed to comply with the National Environmental Policy Act (NEPA) when it approved oil and gas leases and drilling permits that affected his property. The Osage Nation controlled the land’s mineral rights. The court concluded that in “equity and good conscience” the lawsuit should proceed even though the Osage Minerals Council was a necessary party that could not be joined due to its sovereign status. The court also found that the landowner had standing since he alleged several ways in which his property, which was the site of the agency action, could be harmed by the challenged leases and drilling permits, including by further contribution to climate change. Hayes v. Bernhardt, No. 4:16-cv-00615 (N.D. Okla. Nov. 2, 2020).
Federal Court Approved Voluntary Remand of Decisions on Oil and Gas Leases for Additional NEPA Review
The federal district court for the District of Columbia granted BLM’s and federal officials’ motion for voluntary remand without vacatur of claims that they failed to comply with NEPA in connection with 27 oil and gas leasing decisions across Colorado, Utah, Wyoming, New Mexico, and Montana between September 2016 and March 2019. BLM approved these leases prior to the court’s decision in March 2019 (also noted in the Feature Case, above) finding that BLM’s analysis of the climate change impacts of certain other oil and gas leases in Wyoming was insufficient. The federal defendants in the instant case said they had concluded that further analysis under NEPA was appropriate for all but three of the leasing decisions. The plaintiffs did not object to remand, but they urged the court to remand with vacatur. The court rejected this option, saying that it had not basis for vacatur since it had not reviewed the underlying environmental assessments and related decision documents underlying the leasing decisions. The court also noted that the plaintiffs had not filed a motion for preliminary injunction. WildEarth Guardians v. Bernhardt, No. 1:20-cv-00056 (D.D.C. Oct. 23, 2020).
California Appellate Court Dismissed Appeal Concerning Greenhouse Gas Analysis for Logistics Campus After City Completed New Review
After the City of Moreno (City) completed a revised environmental impact report (EIR) for a proposed “logistics campus,” the California Court of Appeal dismissed as moot an appeal that concerned whether the City properly relied on California’s cap-and-trade program when it considered the project’s impacts on greenhouse gas emissions under the California Environmental Quality Act (CEQA). The trial court concluded that the City’s reasoning that greenhouse gas emissions subject to cap-and-trade requirements did not count against the significance threshold did not violate CEQA. Prior to the City’s issuance of the revised EIR, the Court of Appeal issued a tentative decision finding that the original EIR’s analysis of greenhouse gas emissions did violate CEQA. The revised EIR did not consider the cap-and-trade program and instead required that the project’s greenhouse gas emissions be mitigated to “net zero.” The Court of Appeal found that the petitioners failed to point to evidence that the revised EIR continued to rely on the cap-and-trade program. The Court of Appeal also found that neither the “continuing public interest” nor the “recurrence of the controversy” exceptions to mootness applied. Paulek v. City of Moreno Valley, No. E071184 (Cal. Ct. App. Nov. 24, 2020).
Washington Appellate Court Upheld Convictions of Activist Who Presented Necessity Defense
The Washington Court of Appeals affirmed a guilty verdict against a climate activist who cut a chain to enter a pipeline facility and attempted to cut a bolt that secured a shutoff valve on the pipeline, which carried tar sands oil from Canada. The activist relied on a necessity defense based on the “dire consequences of climate change”; he testified on his own behalf and also introduced testimony of climate, public policy, and civil disobedience experts. The jury found him guilty on counts of second-degree burglary, attempted criminal sabotage, and malicious mischief. On his appeal of the attempted criminal sabotage and malicious mischief convictions, the Court of Appeals rejected his argument that he had been deprived of his right to unanimous jury. The court said the State did not have to elect whether to rely for a conviction on the cutting of the chain or on the attempt to cut the bolt because the two acts constituted a “continuing course of conduct.” The appellate court also found that even if the trial court erred, the error was harmless because the State proved both acts beyond a reasonable doubt. State v. Zepeda, No. 80593-2-I (Wash. Ct. App. Nov. 16, 2020).
Hawaii Court Ruled that Commercial Aquarium Fishing Required Environmental Review
A Hawaii court held that the Hawai‘i Environmental Policy Act requires environmental review for commercial taking of aquarium fish and that Department of Land and Natural Resources issuance and renewal of licenses for commercial aquarium collection without environmental review was invalid and illegal. The court rejected DLNR’s argument that a 2017 Hawaii Supreme Court decision requiring environmental review for aquarium fishing only applied to fishing with fine-meshed nets. The court’s decision indicated that “[a]s far as the court is aware, no environmental review for the commercial taking of aquarium fish has been accepted,” noting that a proposed environmental impact statement had been rejected in May 2020 for a number of reasons, including inadequate discussion of the “extreme threat” climate change poses to reefs. Kaupiko v. Department of Land & Natural Resources, No. 1CCV-20-0000125 (Haw. Cir. Ct. Nov. 27, 2020).
NEW CASES, MOTIONS, AND NOTICES
GM, Nissan Withdrew from Defense of Rule Preempting State Low-Carbon Vehicle Standards
On November 25, 2020, the Coalition for Sustainable Automotive Regulation—which intervened as a respondent in proceedings challenging the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program—filed an amended disclosure in the D.C. Circuit to reflect that General Motors LLC (GM) was no longer a member. The Coalition intervened to defend the rulemaking in which the National Highway Traffic Safety Administration preempted state vehicle greenhouse gas emission standards and zero emission vehicle mandates and EPA withdrew California’s waiver for such regulations. Briefing in the case was completed in October. On November 23, GM announced that it was withdrawing from the litigation. On December 4, the Coalition filed another amended disclosure that indicated Nissan was no longer a member of the Automotive Regulatory Council, which is a member of the Coalition. Nissan announced that day that it would work with California and the federal government to establish “common-sense” national standards. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir. Nov. 25, 2020).
Petitioners Sought Stay of EPA’s Relaxation of Leak Detection and Repair Requirements for Oil and Gas Sector
Petitioners challenging EPA’s amendment of leak detection and repair standards in the oil and gas sector asked the D.C. Circuit to stay portions of the amendments, which were scheduled to take effect on November 16. The petitioners asked the court to stay (1) a reduction in leak monitoring frequency for compressor stations and (2) an exemption from leak mitigation requirements for low production wells. Responses to the motion are due December 11. Environmental Defense Fund v. Wheeler, No. 20-1360 (D.C. Cir. Nov. 13, 2020).
Renewable Fuel Companies Asked D.C. Circuit to Compel Compliance with 2017 Decision on Volume Requirements
Renewable fuel companies and trade groups filed a motion requesting that the D.C. Circuit enforce the mandate more than three years after the court vacated EPA’s decision to reduce the total renewable fuel volume requirements for 2016 based on its “inadequate domestic supply” waiver authority. The movants contended that EPA’s delay in complying nullified the mandate and that the court could apply its mandamus power to compel compliance. The movants also urged the court to clarify that EPA could not retain the 2016 standards. Americans for Clean Energy v. EPA, No. 16-1005 (D.C. Cir. Nov. 23, 2020).
Briefs Filed in Supreme Court Arguing for Broader Appellate Review of Remand Order in Baltimore Climate Case; Oral Argument Scheduled for January 19
The U.S. Supreme Court scheduled oral argument for January 19, 2021 in fossil fuel companies’ appeal of a Fourth Circuit Court of Appeals decision affirming an order remanding to state court the City of Baltimore’s climate change case against the companies. The companies filed their brief on November 16, arguing that the Fourth Circuit erred by concluding that it was limited to reviewing removal based on the federal-officer removal statute. The companies also argued that the Court should preserve judicial resources when rectifying this error by addressing the other grounds for removal and reversing the Fourth Circuit’s judgment. The brief argued in particular that the Court should hold that Baltimore’s claims “necessarily and exclusively arise under federal common law.” Alternatively, the companies asked that the Court vacate the judgment and remand to the Fourth Circuit to address the other grounds for removal raised by the companies. Ten amicus briefs were filed in support of the petitioners, including by the United States, which argued for the broader scope of appellate review of remand orders and noted its “significant interest” as “a frequent litigant” in “the application of statutory provisions governing federal appellate jurisdiction.” BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S.).
Developments over the past month in other pending cases seeking to hold fossil fuel companies liable for contributing to climate change included the following:
- In Connecticut v. Exxon Mobil Corporation, No. 3:20-cv-01555 (D. Conn.), Exxon Mobil Corporation moved to dismiss Connecticut’s action on personal jurisdiction grounds (November 13). Connecticut filed a motion for remand to state court (December 2).
- In County of Maui v. Sunoco LP, No. 1:20-cv-00470 (D. Haw.), the County filed a motion to remand to state court (November 25). The court stayed resolution of the motion to remand in City & County of Honolulu v. Sunoco LP, No. 20-CV-00163 (D. Haw.) pending completion of briefing on the County of Maui’s remand motion (November 4).
- In Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp., No. 3:18-cv-07477 (N.D. Cal.), the court continued the case management conference scheduled for December 16 to June 9, 2021. The parties jointly requested that the conference be postponed until proceedings in the Supreme Court in City of Oakland v. BP p.l.c. and County of San Mateo v. Chevron Corp. have concluded. (The defendants have not yet filed their petitions for writ of certiorari in those cases.)
- In Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del.), Delaware filed a motion to remand to state court (November 20).
- In City of Oakland v. BP p.l.c., No. 3:17-cv-6011 (N.D. Cal.), the parties submitted a joint case management statement articulating their positions on how the case should proceed after the Ninth Circuit’s remand of the case (November 10). The plaintiffs contended that no further stay of the cases was warranted and that there should be briefing on their motion to remand, as well as on the issues of staying the action, the plaintiffs’ amending their complaint to withdraw federal common law claims, and the plaintiffs’ planned motion to vacate the court’s ruling on personal jurisdiction. The defendants argued that the court should stay the case until the Supreme Court determines whether to grant forthcoming petitions for writ of certiorari in this case and County of San Mateo v. Chevron Corp. On November 13, the court continued a case management conference scheduled for November 19 to December 16.
- In Minnesota v. American Petroleum Institute, No. 20-cv-1636 (D. Minn.), the defendants filed their opposition to Minnesota’s remand motion (November 9).
- In City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J.), the City filed a motion to remand (November 5).
Corps of Engineers Sought Voluntary Remand for Reevaluation of Permit for Petrochemical Plant
On December 2, 2020, the U.S. Army Corps of Engineers moved for voluntary remand without vacatur and dismissal in a case challenging a Section 404 dredge-and-fill permit for a new petrochemical plant in Louisiana. Several weeks earlier the Corps gave notice to the company developing the plant that it had suspended the permit and was reevaluating it due to potential defects in the Clean Water Act alternatives analysis. The Corps said their review would result in a new final agency action that would be subject to judicial review. Center for Biological Diversity and other plaintiffs asserted claims under NEPA—alleging inadequate climate change analysis—as well as the Clean Water Act, the Rivers and Harbors Act, the National Historic Preservation Act, and the Administrative Procedure Act. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 1:20-cv-00103 (D.D.C. Nov. 4, 2020).
Conservation Groups Asked Federal Court to Compel Decision on New Critical Habitat for Mount Graham Red Squirrel
Center for Biological Diversity and Maricopa Audubon Society filed a lawsuit in the federal district court for the District of Arizona seeking to compel the U.S. Fish and Wildlife Service (FWS) to make a 12-month finding on the plaintiffs’ 2017 petition to revise the critical habitat for the endangered Mount Graham red squirrel, which the complaint alleged are found only in the Pinaleño Mountains in southeast Arizona. The complaint further alleged that “essentially all” of the critical habitat designated in 1990, which consisted of high elevation spruce-fir forest in the Pinaleño Mountains, “has been degraded or destroyed by telescope construction, wildfire … , drought, insect outbreaks, and other ecological changes influenced by climate change.” The plaintiffs contended that lower elevation mixed-conifer forests were now essential to the survival of the Mount Graham red squirrel. The plaintiffs previously sued to compel a 90-day finding on their petition, after which the FWS published a finding in September 2019 that revision of critical habitat might be warranted. In this new suit, the plaintiffs asked the court to enforce the Endangered Species Act mandatory deadline for making a finding on a petition after a positive 90-day finding. Center for Biological Diversity v. Bernhardt, No. 4:20-cv-00525 (D. Ariz., filed Nov. 30, 2020).
EPA Asked District Court to Dismiss Lawsuit Seeking Regulation of Methane from Existing Oil and Gas Sources
EPA asked the federal district court for the District of Columbia to dismiss as moot a lawsuit brought in 2018 by New York, other states, Chicago, and Washington, D.C. to compel EPA to issue guidelines for regulation of methane emissions from existing sources in the oil and natural gas sector. EPA contended that it no longer had authority or a duty to issue such guidelines because it had rescinded new source performance standards for methane emissions from the sector. EPA’s rescission of the methane standards for new sources has been challenged in the D.C. Circuit. New York v. EPA, No. 1:18-cv-00773 (D.D.C. Nov. 24, 2020).
Tribes Filed New Lawsuit Challenging Federal Authorization for Keystone XL Pipeline
The Rosebud Sioux Tribe and Fort Belknap Indian Community filed a new lawsuit challenging a right-of-way granted in 2020 by BLM for the Keystone XL Pipeline to cross more than 45 miles of federally administered land in Montana. The plaintiff tribes asserted that BLM failed to analyze and uphold the United States’ treaty obligations and failed to analyze the pipeline’s impact on their territories and particularly their water resources and lands held in trust. They alleged that they had identified a number of other issues during the NEPA process—including failure to conduct an adequate climate change analysis—but that the final supplemental environmental impact statement did not remedy these issues. They asserted five causes of action: a claim under NEPA and the Administrative Procedure Act; breaches of the 1851 Fort Laramie Treaty, the 1855 Lame Bull Treaty, the 1868 Fort Laramie Treaty; and a failure to adhere to the Department of the Interior’s tribal consultation policies. Rosebud Sioux Tribe v. U.S. Department of the Interior, No. 4:20-cv-00109 (D. Mont., filed Nov. 17, 2020).
Lawsuit Challenged Development Plan for Portion of National Petroleum Reserve-Alaska
Six organizations filed a federal lawsuit in Alaska challenging BLM’s approval of the Willow Master Development Plan, which the complaint described as “a massive oil and gas development project … located within the northeastern portion of the National Petroleum Reserve-Alaska …, in an area already under stress from rapid industrialization and climate change.” The plaintiffs asserted that BLM and other federal defendants failed to comply with the National Environmental Policy Act, the Federal Land Policy and Management Act, the Endangered Species Act, and the Administrative Procedure Act. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:20-cv-00290 (D. Alaska, filed Nov. 17, 2020).
Religious Order Sought Damages Under Religious Freedom Restoration Act from Pipeline Developer
A vowed religious order of Roman Catholic women and individual members of the order filed a lawsuit in the federal district court for the Eastern District of Pennsylvania against the developer of the Atlantic Sunrise Pipeline, which was constructed across the order’s property and put into service in 2018 “[o]ver the Sisters’ strenuous, sincere, and repeated protests.” The plaintiffs asserted that the developer’s condemnation of a right-of-way on their land and construction and operation of the pipeline “substantially burdened [their] exercise of their deeply-held religious beliefs to use and protect their land as part of God’s creation.” The complaint cited a “Land Ethic” adopted by the order in 2005 “proclaiming the sacredness of all creation according to their religious beliefs” as well as Pope Francis’s 2015 encyclical letter Laudato Si, which the order’s complaint alleged “provides a comprehensive and exhaustive theological basis establishing that, as an act of religious belief and practice, members of the Roman Catholic Church, and others, must protect and preserve the Earth as God’s creation.” The complaint alleged that Pope Francis specifically identified climate change as a grave threat to humanity. The plaintiffs asserted a violation of the Religious Freedom Restoration Act and requested that the court award them compensatory and punitive damages. Adorers of the Blood of Christ v. Transcontinental Gas Pipe Line Co., No. 2:20-cv-05627 (E.D. Pa., filed Nov. 11, 2020).
Lawsuits Asked Court to Compel Review and Updating of Energy Efficiency Standards
Two lawsuits were filed in the federal district court for the Southern District of New York asking the court to set an enforceable schedule for the U.S. Department of Energy to review and amend energy efficiency standards for 25 consumer and commercial products, including room air conditioners, pool heaters, furnaces, dishwashers, and walk-in coolers. Six organizations led by Natural Resources Defense Council filed one of the suits. The other was filed by 14 states, New York City, and the District of Columbia. The plaintiffs asserted violations of mandatory deadlines in the Energy Policy and Conservation Act. New York v. Brouillette, No. 20-cv-9362 (S.D.N.Y., filed Nov. 9, 2020); Natural Resources Defense Council v. Brouillette, No. 20-cv-9127 (S.D.N.Y., filed Oct. 30, 2020).
Petition Filed Challenging Water Quality Certification for Minnesota Crude Oil Pipeline
Environmental groups and tribes challenged the Clean Water Act Section 401 water quality certification by the Minnesota Pollution Control Agency (MPCA) for Enbridge Energy’s Line 3, a crude oil pipeline that would cross Minnesota to reach a terminal and tank farm in Wisconsin. The petitioners identified four sets of issues they would raise on appeal, one of which was “[w]hether MPCA’s refusal to consider climate or tribal impacts complied with the requirements of Minnesota and federal law.” Friends of the Headwaters v. Minnesota Pollution Control Agency (In re 401 Certification for Line 3 Replacement Project), No. A20-1513 (Minn. Ct. App., filed Nov. 30, 2020).
CARB and California Attorney General Sought to Join Lawsuit Challenging Port of Los Angeles Project
On November 4, 2020, the California Attorney General, on behalf of the People of the State of California, and the California Air Resources Board (CARB) sought to intervene in the South Coast Air Quality Management District’s (SCAQMD’s) proceeding challenging the environmental review for a terminal project at the Port of Los Angeles. SCAQMD charged that the City of Los Angeles and other defendants failed to implement and enforce mitigation measures in a 2008 environmental impact report (EIR) and then approved “unenforceable and inferior substitute measures” in a final supplemental EIR in 2020. SCAQMD alleged a number of failings in the supplemental EIR, including failure to take account of impacts of project changes on greenhouse gas emissions and to incorporate feasible measures to mitigate such emissions. South Coast Air Quality Management District v. City of Los Angeles, No. 20STCP02985 (Cal. Super. Ct. Nov. 4, 2020).
Environmental Groups Challenged Authorization for New Natural Gas Plant in Oregon
Columbia Riverkeeper and Friends of the Columbia Gorge filed a lawsuit in Oregon Circuit Court alleging that Oregon Department of Energy unlawfully allowed construction to proceed on the Perennial Wind Chaser Station, a proposed gas-fired power plant that would be a non-base load generating facility. The petitioners alleged that it would be one of the largest stationary sources of greenhouse gas emissions in Oregon. They contended that ODOE’s actions should be reversed or remand based on violations of the Oregon Administrative Procedures Act and the Oregon Energy Facility Siting Act. Columbia Riverkeeper v. Oregon Department of Energy, No. 20CV38607 (Or. Cir. Ct., filed Nov. 2, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
European Court of Human Rights Accepted, Fast-Tracked, and Communicated to 33 Defendant Countries a Climate Case Brought by Six Portuguese Youth
Six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries on September 2, 2020. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action.
On November 30, 2020, the Court accepted and fast-tracked the case and communicated the case to all 33 defendant countries, requiring them to respond by the end of February 2021. According to the Global Legal Action Network, which is supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated. Youth for Climate Justice v. Austria, et al. (European Court of Human Rights).
France’s Council of State Ordered the French Government to Justify, Within Three Months, that It Can Meet Climate Goals Without Stricter Measures
The municipality of Grande-Synthe sued the French government in 2019 for insufficient action on climate change. The suit was filed in the Conseil d’Etat, the highest administrative court in France. The suit alleges that the French government’s failure to further reduce greenhouse gas emissions violates domestic and international law, including the European Convention on Human Rights, the Paris Agreement, the French Environmental Code, and the French Environmental Charter.
On November 19, 2020, the Conseil d’Etat ruled that the case was admissible and instructed the government to justify, within three months, that it was taking adequate actions towards meeting its own 2030 climate goals. According to the Court, the coastal communities’ claims are admissible in part because the city is particularly exposed to the effects of climate change. The Court also accepted interventions by NGOs and other interested cities. The Court then noted that France committed itself to a 40% reduction in GHG emissions by 2030, compared to 1990 levels, and instructed the government to justify its ability to meet this goal without stricter measures. Although the Court signaled the decision would be driven by French and European law and not the Paris Agreement, the Court reasoned that the Paris Agreement must be considered in the interpretation of national law. Commune de Grande-Synthe v. France (Council of State).
Supreme Court of Guyana Accepted Settlement Limiting Oil Production Permits to Five Years
Guyanese scientist Dr. Troy Thomas filed a case against the Environmental Protection Agency (EPA) of Guyana in the Supreme Court, alleging that the 23-year permits EPA had issued to Esso Corporation (a subsidiary of Exxon) for oil exploration violated regulations under the Environmental Protection Act that limited such permit lengths to five years. EPA had issued permits to Esso that ran through 2040 and 2043. In an affidavit supporting the filing, Thomas argued that issuing such a long permit in violation of law “exposes Guyana and the rest of the world to serious, if not irreparable, harm and adverse consequences from climate change.” After the filing, the Court added Esso as an interested party and held three preliminary hearings.
On October 7, 2020, the Supreme Court of Guyana issued a consent order accepting a settlement between Thomas, EPA, and Esso. EPA agreed to reduce the term to of the permits to five years, so that they would expire in 2022 and 2024. The Court also ordered EPA to pay Thomas’s court costs. Thomas v. EPA (Supreme Court of Guyana).
Australian Pension Fund Settled with Fund Member and Agreed to Implement Net-Zero Carbon by 2050 Goal
An Australian pension fund member, Mark McVeigh, filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia in July 2018.
On November 2, 2020, the parties reached a settlement in which the Australian pension fund acknowledged that “[c]limate change is a material, direct and current financial risk to the superannuation fund across many risk categories, including investment, market, reputational, strategic, governance and third-party risks.” To address this risk, REST agreed to implement a net-zero carbon footprint by 2050 goal for the fund, to measure, monitor and report climate progress in line with the Task Force on Climate-related Disclosures, to ensure investee climate disclosure, and to publicly disclose portfolio holdings, among other commitments. McVeigh v. Retail Employees Superannuation Trust (Federal Court of Australia).
Seven Political Parties in Brazil Filed Suit in the Supreme Court Alleging Brazil’s Failure to Curb Deforestation Violates Fundamental Constitutional Rights
On November 11, 2020, seven political parties in Brazil (Partido Socialista Brasileiro (PSB) and six others) brought an action against the federal government for violating fundamental constitutional rights by failing to implement the national deforestation policy, and thereby contributing to dangerous climate change. The political parties, organized by a coalition of nongovernmental organizations (NGOs), allege that by failing to implement Brazil’s Action Plan for Prevention and Control of the Legal Amazon Deforestation (PPCDAm), the federal government violated the fundamental rights of indigenous peoples and present and future generations.
The suit demands that the federal government and its bodies implement the PPCDAm and suggests the Court set benchmarks for compliance including: meet an 80% deforestation rate reduction relative to the 1996-2005 average by 2021, enact a temporary moratorium on all deforestation until 2022 if that rate cannot be reached by 2021, and increase the power of federal authorities to set penalties for illegal deforestation.
The coalition of NGOs organized the lawsuit and compiled evidence of the government’s suspended enforcement of the PPDCAm. According to the NGOs, Brazil saw a 34% increase in the Amazon deforestation rate between 2018 and 2019. Due to procedural requirements for such an action alleging the violation of a fundamental constitutional right, heard directly at the Supreme Court, the NGOs organized seven political parties to bring the case. PSB et al. v. Brazil (on deforestation and human rights) (Federal Supreme Court of Brazil)
Institute of Amazonian Studies Also Challenged Brazil’s Deforestation Policies in Case Seeking Recognition of Fundamental Constitutional Right to Stable Climate
On October 8, 2020, the Institute of Amazonian Studies (Instituto de Estudos Amazônicos – IEA) filed a Public Civil Action (class action) against the Federal Government of Brazil, seeking recognition of a fundamental right to a stable climate for present and future generations under the Brazilian Constitution, and seeking an order to compel the federal government to comply with national climate law. Plaintiffs allege that the federal government has failed to comply with its own action plans to prevent deforestation and mitigate and adapt to climate change, violating national law and fundamental rights.
Plaintiffs assert that the government has failed to meet the Brazilian emissions targets set out in the Climate Change National Policy Act, a binding act passed by the Brazilian legislature, and in the Action Plan for Prevention and Control of Deforestation in Legal Amazon (PPCDAm). Plaintiffs seek an order to compel the federal government to comply with its existing policies, to reforest an area equivalent to what was deforested beyond the statutory limit, and to allocate sufficient budgetary resources for this purpose. Institute of Amazonian Studies v. Brazil (Federal District Court of Curitiba).
Four Civil Society Organizations Filed Suit in East African Court of Justice Seeking Injunction to Stop East African Crude Oil Pipeline
On November 6, 2020, four civil society organizations filed a suit against the governments of Tanzania and Uganda in the East African Court of Justice seeking an injunction to stop the East African Crude Oil Pipeline. According to a press release issued by the civil society organizations, plaintiffs allege that the governments, without objection from the Secretary General of the East African Community, who is responsible for oversight of the East African Community Treaty, signed agreements to build the pipeline without proper environmental, social, human rights, and climate impact assessments. The claims arise under Ugandan national law and the East African Community Treaty and its protocols. The civil society organizations are the Center for Food and Adequate Living Rights, the Africa Institute for Energy Governance, Natural Justice, and the Center for Strategic Litigation in Tanzania. Center for Food and Adequate Living Rights et al. v. Tanzania and Uganda (East African Court of Justice).
New South Wales Land and Environment Court Issued Order Allowing Expert Climate Testimony in Bushfire Survivors Case
Bushfire Survivors for Climate Action brought a civil enforcement proceeding in April 2020 to compel the New South Wales Environmental Protection Authority to regulate greenhouse gas emissions. The plaintiffs, represented by the New South Wales Environmental Defenders Office, are Australians who allege that they have been harmed by bush fires made more likely or more intense by climate change.
On November 4, 2020, the Court issued an order allowing testimony from the plaintiff’s expert, Australian Chief Scientist Professor Penny Sackett, on climate change, including whether emissions trajectories in New South Wales and Australia are on track to limit warming to 1.5 degrees. According to the plaintiffs, this marks the first time an Australian court has ruled on whether climate evidence can be heard in a case alleging the government’s failure to perform their statutory duty. Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority (New South Wales Land and Environment Court).
