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 email@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 141.
Ninth Circuit Said NEPA Review for Offshore Drilling Project Should Have Considered Greenhouse Gas Emissions Associated with Foreign Oil Consumption
The Ninth Circuit Court of Appeals vacated the Bureau of Ocean Energy Management’s (BOEM) approval of an offshore drilling and production facility off the coast of Alaska in the Beaufort Sea, finding that BOEM failed to comply with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Although the Ninth Circuit disagreed with the petitioner’s argument that BOEM’s NEPA analyses used different methodologies to calculate the lifecycle greenhouse gas emissions from the project and the no-action alternative, the court agreed that BOEM’s alternatives analysis was arbitrary and capricious because it failed to consider greenhouse gas emissions from foreign oil consumption in the analysis of the no-action alternative. The court said BOEM must either quantitatively evaluate such emissions or “thoroughly explain why such an estimate is impossible” and provide “a more thorough discussion of how foreign oil consumption might change” the analysis of greenhouse gas emissions. The Ninth Circuit held that BOEM violated the ESA by relying on nonbinding mitigation measures to conclude the project would not adversely modify polar bear critical habitat and by failing to estimate the project’s nonlethal take of polar bears. Center for Biological Diversity v. Bernhardt, No. 18-73400 (9th Cir. Dec. 7, 2020).
DECISIONS AND SETTLEMENTS
Supreme Court Agreed to Hear Small Refiners’ Appeal in Renewable Fuel Standard Exemption Case
On January 8, 2021, the U.S. Supreme Court granted a petition for writ of certiorari seeking review of a Tenth Circuit Court of Appeals decision that vacated U.S. Environmental Protection Agency (EPA) orders granting three petitions for extensions of small refinery exemptions from renewable fuel standards. The Tenth Circuit agreed with a coalition of renewable fuel producers that EPA exceeded its statutory authority granting extensions when none of the three small refineries had received an initial exemption in the years preceding their petitions for extension. The court also found that EPA improperly relied on hardship caused by factors other than compliance with renewable fuel obligations as a basis for granting the extensions. The petition for writ of certiorari raised the question of whether a small refinery must receive “uninterrupted, continuous hardship exemptions for every year since 2011” to qualify for a hardship exemption. HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, No. 20-472 (U.S. Jan. 8, 2021).
After Temporarily Blocking Activity on Helium Extraction Project in Southeastern Utah, Federal Court Denied Emergency Injunctive Relief
On December 22, 2020, the federal district court for the District of Columbia issued an order pursuant to the All Writs Act temporarily enjoining any ground-disturbing work undertaken pursuant to the anticipated approval by the U.S. Bureau of Land Management (BLM) of a helium extraction project in an area of the San Rafael Desert in southeastern Utah covered by an oil and gas lease sold in December 2018. The lease area is part of lands subsequently designated as the Labyrinth Canyon Wilderness by the John D. Dingell, Jr. Conservation, Management, and Recreation Act in March 2019. On December 14, four environmental groups filed a lawsuit in the court to block the Secretary of the Interior and other defendants from approving applications for permit to drill under the lease. The environmental groups asserted that BLM, which prepared a “Determination of NEPA Adequacy” to support sale and issuance of the lease, failed to analyze the direct, indirect, and cumulative climate change impacts of greenhouse gas emissions associated with the leasing decision. They alleged that BLM was “poised to approve” the helium drilling project despite not having finalized the “curative” NEPA analysis it had undertaken in response to the district court’s March 2019 decision in WildEarth Guardians v. Zinke, where the court held that BLM failed to adequately analyze greenhouse gas emissions and climate change impacts of oil and gas leases in Wyoming. The plaintiffs alleged that BLM recognized, based on WildEarth Guardians v. Zinke, that it had violated NEPA in connection with “hundreds of oil and gas leases” in Utah, including the lease at issue in this case. The plaintiffs also asserted that BLM violated NEPA and the Administrative Procedure Act when the Trump administration reversed course on the Obama administration’s plan to complete a master leasing plan for the San Rafael Desert prior to authorizing new mineral development. After BLM issued approval documents on December 23 deferring approval on the federal lease and approving rights-of-way for work related to two nearby non-federal leases, the environmental groups filed an amended and supplemented complaint and a renewed motion for a temporary restraining order and preliminary injunction. On January 12, the court denied the renewed motion, finding that the plaintiffs failed to demonstrate a likelihood of success on the merits of their argument that BLM failed to analyze cumulative effects on water consumption when it approved the rights-of-way. Southern Utah Wilderness Alliance v. Bernhardt, No. 1:20-cv-03654 (D.D.C., filed Dec. 14, 2020 and TRO order Dec. 22, 2020).
Federal Court Rejected Claims that Climate Change-Related Developments Necessitated Supplemental NEPA Review for Forest Plan and Projects
The federal district court for the District of Montana dismissed a lawsuit that sought to compel the U.S. Forest Service to supplement the 1987 forest plan for the Custer Gallatin National Forest and for three projects authorized under the forest plan. The court rejected arguments that new climate change research and a decision to revise the 1987 forest plan to address climate change triggered supplementation requirements under NEPA. Cottonwood Environmental Law Center v. Marten, No. 2:20-cv-00031 (D. Mont. Dec. 17, 2020).
Maine Federal Court Declined to Enjoin Work on Electric Transmission Project
The federal district court for the District of Maine declined to issue a preliminary injunction barring construction of the New England Clean Energy Connect (NECEC), an electricity transmission project to connect the New England energy grid with non-fossil fuel sources of electric power. The court found that plaintiffs had not demonstrated they were likely to prevail on their arguments that the U.S. Army Corps of Engineers violated NEPA and failed to take concerns about impacts on waters of the United States into account. The court further found that the equitable interests of the NECEC developer undermined the plaintiff’s request for preliminary relief and that the public interest was “not monolithic,” given the asserted benefits of the NECEC project, including reducing rates, improving reliability, and reducing regional greenhouse gas emissions. Sierra Club v. U.S. Army Corps of Engineers, No. 2:20-cv-00396 (D. Me. Dec. 16, 2020).
Federal Court Ordered FOIA Production of CEQ Records Related to NEPA Rulemaking
In a Freedom of Information Act lawsuit filed by Southern Environmental Law Center in 2018, the federal district court for the Western District of Virginia ordered the Council on Environmental Quality (CEQ) to produce unredacted versions of a number of records related to CEQ’s advance notice of proposed rulemaking (ANPRM) for amendments to the NEPA regulations. The court concluded that CEQ had not demonstrated it would suffer “a reasonably foreseeable harm” from unredacted production. The records included spreadsheets tracking and analyzing comments, draft ANPRM fact sheets, meeting agendas, and emails and meeting invitations regarding CEQ’s process for managing comments. Southern Environmental Law Center v. Center for Environmental Quality, No. 3:18-cv-00113 (W.D. Va. Dec. 14, 2020).
Federal Court Upheld Climate Change Analysis for Utah Oil and Gas Leases, Remanded for Additional Consideration of Alternatives
The federal district court for the District of Utah rejected claims that BLM did not adequately consider greenhouse gas emissions and climate change impacts, including cumulative impacts, from oil and gas development associated with 59 leases in the Uinta Basin. Noting that “[a]n agency is not required to engage in analyses, including cumulative impact, if they are ‘too speculative or hypothetical to meaningfully contribute to NEPA’s goals of public disclosure and informed decisionmaking,’” the court found that EPA had taken “an appropriately hard look” at cumulative greenhouse gas and climate impacts by identifying impacts of its leasing decision, including a quantitative assessment of greenhouse gases from the decision, and “generally identif[ying] the broad global context within which this decision fits.” The court also found that BLM did not violate NEPA by deferring analysis of site-specific greenhouse gas emissions from well development and operation. The court further concluded, however, that BLM failed to properly document and potentially failed to perform an analysis of reasonable alternatives. The court—which also found that BLM complied with the Federal Land Policy and Management Act—remanded to BLM for further consideration of alternatives but did not vacate the issued leases. Rocky Mountain Wild v. Bernhardt, No. 2:19-cv-00929 (D. Utah Dec. 10, 2020).
NEW CASES, MOTIONS, AND NOTICES
Supreme Court to Hear Arguments on Scope of Appellate Review of Remand Orders in Baltimore Case; New Certiorari Petitions Filed in Three Other Cases
The U.S. Supreme Court is scheduled to hear oral argument on 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. On January 8, the Court granted the Acting Solicitor General’s motion for leave to participate in oral argument as amicus curiae in support of the companies. The companies identified the question for review as 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.” In its brief filed on December 16, Baltimore defined the question as whether the statutory provision “entitles a defendant, by including a meritless federal-officer or civil-rights ground for federal jurisdiction in a removal petition, to appellate review of every ground for removal rejected by the district court’s remand order.” 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. In December, six amicus briefs were filed in support of Baltimore—by state and local government groups, environmental groups, six senators, law professors who teach and write on civil procedure and the federal courts, 19 states and the District of Columbia, and Boulder County, San Miguel County, and the City of Boulder in Colorado. BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S.).
In December 2020, three additional petitions for writ of certiorari were filed by fossil fuel companies seeking review of decisions affirming remand orders in cases brought by the County of San Mateo and other California local governments, by Rhode Island, and by the City of Boulder and Boulder and San Miguel Counties in Colorado. The companies requested that these petitions be held pending the outcome of the Baltimore case since the petitions raise the same jurisdictional issue. Chevron Corp. v. County of San Mateo, No. 20-884 (U.S. Dec. 30, 2020); Shell Oil Products Co. v. Rhode Island, No. 20-900 (U.S. Dec. 30, 2020); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 20-783 (U.S. Dec. 4, 2020).
Developments in other climate change cases brought by state and local governments against fossil fuel companies include:
- Delaware filed a brief in support of its motion to remand its lawsuit to state court. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. Jan. 5, 2021).
- The federal district court for the District of Minnesota scheduled a hearing on Minnesota’s remand motion for January 13, 2021. Minnesota v. American Petroleum Institute, No. 20-cv-1636 (D. Minn.).
- The federal district court for the Northern District of California held a case management conference in City of Oakland v. BP p.l.c. on December 16, 2020 at which the parties agreed to the court’s proposal that the parties brief Oakland and San Francisco’s renewed motion to remand and motion to amend the complaint to remove federal common law claims, with the renewed motion to remand due by January 28, 2021. The court indicated that after briefing on the remand motion is complete, it will consider whether to defer its ruling on the motion pending the Supreme Court’s decision in the Baltimore case. Personal jurisdiction issues would be briefed after the court’s decision on the remand motion. City of Oakland v. BP p.l.c., No. 3:17-cv-6012 (N.D. Cal.).
- The City of Hoboken filed a memorandum of law in support of its motion to remand. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Dec. 11, 2020).
- The fossil fuel companies filed their opposition to the County of Maui’s motion to remand. County of Maui v. Sunoco LP, No. 1:20-cv-00470 (D. Haw. Dec. 23, 2020).
Groups Challenged “Circumventing” of Efficiency Standards for Dishwashers
Natural Resources Defense Council (NRDC), Sierra Club, Consumer Federation of America, and Massachusetts Union of Public Housing Tenants filed a petition for review in the Second Circuit Court of Appeals to challenge the U.S. Department of Energy rule establishing a new product class for residential dishwashers. In a press release, NRDC said the rule was “circumventing longtime energy and water efficiency standards for dishwashers by needlessly creating a new category exempt from any energy-saving requirements, potentially leading to higher household utility bills and more pollution.” Natural Resources Defense Council, Inc. v. U.S. Department of Energy, No. 20-4256 (2d Cir., filed Dec. 29, 2020).
Lawsuits Challenged Federal and State Authorizations for, and Sought to Halt Work on, Line 3 Pipeline Project in Minnesota
The Red Lake Band of Chippewa Indians, the White Earth Band of Ojibwe, Honor the Earth, and Sierra Club filed a lawsuit in the federal district court for the District of Columbia challenging a U.S. Army Corps of Engineers permit for the Enbridge Energy Line 3 pipeline replacement project in Minnesota. The plaintiffs—which asserted that approval of the permit violated NEPA, the Clean Water Act, and the Rivers and Harbors Act, Corps regulations and the Administrative Procedure Act—also filed a motion for a preliminary injunction. The plaintiffs alleged that the pipeline project would almost double the pipeline’s capacity and that the project would facilitate increased extraction and use of Canadian tar sands oil, resulting in “significant damage, estimated in the hundreds of billions of dollars, due to its contribution climate change.” In their claims under NEPA, the plaintiffs alleged that the Corps failed to quantify and evaluate “cumulative and incremental effects of climate change, including the potential for increased lifecycle greenhouse gas emissions and their associated costs, resulting from the approval of the Project and connected actions.” Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers, No. 1:20-cv-03817 (D.D.C., filed Dec. 24, 2020).
The same parties have also filed a petition in the Minnesota Court of Appeals challenging the decisions by the Minnesota Public Utilities Commission authorizing the Line 3 project. Issues to be raised in this proceeding include the petitioners’ contention that the PUC “decided to entirely disregard most of the climate change impacts of the Project,” contrary to its obligations to consider effects on Minnesota’s natural and socioeconomic environment and to consider climate change’s economic and environmental costs on people within Minnesota, “including the Anishinaabe peoples who claim a right to continue to live on their lands in accordance with their beliefs and culture, which is their human and legal right to do.” On December 29, 2020, the tribes filed a motion for a stay pending appeal. An environmental group, Friends of the Headwaters, filed a separate stay motion. Friends of the Headwaters v. Minnesota Public Utilities Commission (In re Enbridge Energy, LP), No. A20-1071 (Minn. Ct. App. Dec. 30, 2020); Red Lake Band of Chippewa Indians v. Minnesota Public Utilities Commission (In re Enbridge Energy, LP), No. A20-1072 (Minn. Ct. App. Dec. 29, 2020).
Lawsuit Challenged Roadless Rule Exemption for Tongass National Forest
A lawsuit filed in the federal district court for the District of Alaska challenged a final rule exempting the Tongass National Forest (Tongass) from the Roadless Area Conservation Rule. The complaint alleged that the Tongass is “[a] major carbon sink” and “a critical defense against climate change,” and that the exemption “puts all of this at risk.” The complaint asserted that the U.S. Forest Service and other defendants violated NEPA, the Administrative Procedure Act, the National Forest Management Act, the Organic Administration Act (which established most national forests), and the Alaska National Interest Lands Conservation Act. Organized Village of Kake v. Perdue, No. 1:20-cv-00011 (D. Alaska, filed Dec. 23, 2020).
Second Lawsuit Filed Challenging “Massive” Oil and Gas Development Project in Alaska
Three environmental groups filed a lawsuit in the federal district court for the District of Alaska challenging BLM’s approval of the Willow Master Development Plan, which the plaintiffs alleged is a “massive oil and gas development project in the National Petroleum Reserve-Alaska” that poses “a threat to the global climate and an already dramatically warming Arctic region.” (Six other organizations previously filed a lawsuit challenging the development plan.) The three groups also filed a motion for a preliminary injunction. The complaint asserted claims under NEPA, the Endangered Species Act, and the Administrative Procedure Act. Under NEPA, the plaintiffs alleged, among other shortcomings, that BLM failed “to fully consider and accurately describe the magnitude and significance of greenhouse gas emissions” from the project, including by excluding foreign oil consumption from the market simulation model it used to estimate net greenhouse gas emissions from the project. The plaintiffs contended that BLM failed to disclose and analyze the effects of the project’s emissions and the significance of those emissions, ignoring “available science and well-established methods for assessing the effects of the Project’s greenhouse gas emissions,” and “misleadingly” compared the project’s emissions with total U.S. emissions. Under the Endangered Species Act, the plaintiffs alleged that the Fish and Wildlife Service’s conclusion that death or serious injury to polar bears was not likely to occur was not based on best available science and failed to consider relevant factors, including the increasing proportion of polar bears that den on land due to diminishing sea ice. Center for Biological Diversity v. Bureau of Land Management, No. 3:20-cv-00308 (D. Alaska, filed Dec. 21, 2020).
Department of Energy Sought to Dismiss Lawsuit Challenging Its Management of National Coal Council
The U.S. Department of Energy (DOE) moved to dismiss a lawsuit filed by Western Organization of Resource Councils in October challenging DOE’s administration of the National Coal Council (NCC), which the complaint described as “a body designed to debate and recommend federal policies related to the production and consumption of American coal.” The complaint alleged that DOE had not complied with obligations under the Federal Advisory Committee Act because it had failed to open NCC meetings to the public and to release NCC materials. The complaint further alleged that NCC’s “current focus on coal production at the expense of all other considerations for American energy policy is evident in the NCC’s recent work product,” including an exclusive focus on “expanding the use of and financial support for coal, without any commensurate attempt to lower emissions.” The plaintiff contended that “[a]s the NCC’s balance and vision has changed, its capacity to contextualize the coal industry’s interests within other public policy considerations for the federal government—such as global climate change and public and private land conservation—has all but evaporated.” In its motion to dismiss, DOE argued that the plaintiff did not have standing for claims with respect to the full NCC and that the plaintiff failed to state viable claims with respect to NCC subcommittees. Western Organization of Resource Councils v. Brouillette, No. 4:20-cv-00098 (D. Mont. Dec. 21, 2020).
Environmental Groups Challenged Oil Well and Pipeline in Carrizo Plain National Monument
Center for Biological Diversity and Los Padres ForestWatch filed a lawsuit challenging BLM’s approval of an application for a permit to drill in connection with a new well and pipeline within the Carrizo Plain National Monument. The plaintiffs alleged that the project was the first oil well and pipeline approved within the monument since its establishment in 2001. The plaintiffs asserted claims under the Federal Land Policy and Management Act (FLPMA), NEPA, and the Administrative Procedure Act. Claims under NEPA included that BLM failed to adequately consider the project’s climate change impacts by “downplaying” its greenhouse gas emissions and “failing to consider the significance of the emissions as direct, indirect, and cumulative impacts.” The plaintiffs also contended that the failure to adequately evaluate the project’s climate change impacts violated BLM’s resource management plan for the monument and therefore the FLPMA. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 2:20-cv-11334 (C.D. Cal., filed Dec. 15, 2020).
Organizations Cited Potential Flooding and Greenhouse Gas Emission Impacts in Challenge to Road Project in City of Erie
Two organizations—the National Association for the Advancement of Colored People Erie Unit 2262 and Citizens for Pennsylvania’s Future—filed a lawsuit challenging the Federal Highway Administration’s approval of a categorical exclusion for the Bayfront Parkway Project in Erie, Pennsylvania, a project that the plaintiffs alleged “prioritizes vehicles over pedestrians and cyclists” and “also ignored potential impacts to water quality, flooding, aesthetics, climate change, and the communities living closest to the Bayfront Parkway.” The complaint asserted that approval of the categorical exclusion under NEPA was arbitrary and capricious, including because the Pennsylvania Department of Transportation failed to examine potentially significant impacts, including increased flooding from Lake Erie due to climate change and the project’s plan “to increase impervious surfaces and permanently destroy wetlands” and lower part of the Bayfront Parkway; impacts on vehicle miles traveled and greenhouse gas emissions; and disproportionate climate change impacts on communities of color and low-income communities. In addition to their NEPA claims, the plaintiffs also asserted claims under the Federal Aid Highway Act and Administrative Procedure Act. National Association for the Advancement of Colored People Erie Unit 2262 v. Federal Highway Administration, No. 20-cv-362 (W.D. Pa., filed Dec. 15, 2020).
NEPA Lawsuit Alleged Failure to Consider Climate Change in Environmental Review for Projects at Air National Guard Facility
A nonprofit organization challenged the environmental review for construction and demolition projects at the Wisconsin Air National Guard’s 115th Fighter Wing Installation at a regional airport in Madison. The plaintiff asserted that the National Guard Bureau violated NEPA by preparing an environmental assessment instead of an environmental impact statement and by issuing a finding of no significant impact. Among the NEPA violations alleged in the complaint was a failure to adequately consider climate change, including by minimizing the project’s greenhouse gas emissions and by failing to consider climate change effects on soil and groundwater emissions of per- and polyfluoroalkyl substances. Safe Skies Clean Water Wisconsin, Inc. v. National Guard Bureau, No. 3:20-cv-01086 (W.D. Wis., filed Dec. 7, 2020).
Lawsuit Challenged Land Exchange for Expansion of Gypsum Stacks
The Shoshone-Bannock Tribes filed a lawsuit in federal court in Idaho challenging the U.S. Department of Interior’s approval of a land exchange to facilitate expansion of phosphogypsum stacks located on a Superfund site adjacent to the Fort Hall Reservation. The Tribes alleged that the environmental impact statement failed to satisfy NEPA requirements, including by failing to adequately evaluate air quality and climate change impacts. The Tribes also asserted violations of the FLPMA, the Administrative Procedure Act, the Act of June 6, 1900 (which the Tribes alleged reaffirmed off-reservation treaty rights), the Fort Bridger Treaty of 1868, and the U.S.’s trust responsibility. Shoshone-Bannock Tribes of Fort Hall Reservation v. Hammond, No. 4:20-cv-00553 (D. Idaho, filed Dec. 5, 2020).
New Lawsuit Challenging Keystone XL Project Cited Continuing Failure to Fully Assess Climate Impacts
A new lawsuit filed in the federal district court for the District of Montana challenged federal authorizations for the Keystone XL Pipeline Project, alleging that the federal defendants “are still attempting to resurrect and construct” Keystone despite the project’s “continuing illegality and profound environmental impacts, particularly its exacerbation of the global warming crisis.” The complaint asserted claims under NEPA, the Endangered Species Act, the Administrative Procedure Act, the Mineral Leasing Act, and the Federal Land Policy Management Act. The acts challenged included the U.S. Army Corps of Engineers’ adoption of a finding of no significant impact in conjunction with approval of reissuance of Nationwide Permit 12 under the Clean Water Act; President Trump’s claim that Executive Order 13,867 retroactively validated the “unilaterally and unconstitutionally approved” 2019 presidential permit; the 2019 final supplemental environmental impact statement (FSEIS) issued by the U.S. Department of State; the U.S. Fish and Wildlife Service’s reliance on an inadequate Biological Assessment; and BLM’s issuance of a record of decision approving a right-of-way and temporary use permit based on the inadequate 2019 FSEIS. With respect to climate change, the complaint alleged that the 2019 FSEIS did not take a hard look at the project’s greenhouse gas and climate change emissions, including the “cumulative worsening” of the project’s annual greenhouse gas emissions. It asserted that the complaint “also impermissibly downplays the likely impacts that climate change will have on the Project, should it be built,” including impacts of severe weather on its operation and risk that the project could become a “stranded asset as climate change undermines and ultimately eliminates the market for Canadian tar sands altogether.” Indigenous Environmental Network v. U.S. Bureau of Land Management, No. 4:20-cv-00115 (D. Mont., filed Dec. 4, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
UK Supreme Court Overturned an Appellate Court Decision, Allowing the Approval Process for a Third Runway at Heathrow International Airport to Move Forward
The Court of Appeal had ruled in February 2020 that the government acted unlawfully by approving the runway expansion without considering the country’s commitment to meeting the Paris Agreement goals.
On December 16, 2020, the Supreme Court overturned the Court of Appeal decision and agreed with four grounds of Heathrow Airport Limited’s appeal. First, the Supreme Court found that the Paris Agreement itself did not constitute government policy under the Planning Act 2008. Second, the Secretary of State for Transport did not fail to act with the objective of sustainable development by failing to consider the Paris Agreement, because the Secretary gave weight to the Paris Agreement’s obligations with regard to the Climate Change Act of 2008’s emission reduction measures. Third, the Secretary did not treat the Paris Agreement as legally irrelevant to his Strategic Environmental Assessment because, again, he took into account domestic obligations under the Climate Change Act of 2008. Fourth, the Secretary did not act irrationally in excluding post-2050 and non-CO2 emissions, because the Department of Transport modeled emissions to 2085/2086, and the Secretary’s decision reflected the lack of governmental policy certainty about non-CO2 emissions.
As a result of the ruling, the government can now seek a development consent order, which is required for nationally significant infrastructure projects. According to news reports, this will require consideration of more stringent climate change pledges made by the UK government since 2018. Plan B Earth and Others v. Secretary of State for Transport (UK Supreme Court).
Supreme Court of Norway Rejected Appeal of Lawsuit that Aimed to Block Oil and Gas Deep-Sea Extraction Licenses
A coalition of environmental groups sought a declaratory judgment that Norway’s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. Both the District Court and the Court of Appeal ruled for the government of Norway.
On December 22, 2020, the Supreme Court announced its decision rejecting the appeal and upholding the licenses for deep-sea extraction. Eleven of the 15 judges on the panel upheld the lower court’s ruling. The Court reasoned that although the Norwegian constitution protects citizens from environmental and climate harms, the future emissions from exported oil are too uncertain to bar the granting of these petroleum exploration licenses. The Court’s reading of the decision is available here. Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (Norwegian Supreme Court).
New South Wales Land and Environment Court Upheld Planning Commission’s Rejection of the Bylong Valley Coal Mine
On September 18, 2019, the Independent Planning Commission of New South Wales rejected KEPCO Bylong Australia’s application to build the Bylong Valley coal mine on several grounds, including its contribution to climate change. KEPCO, a major Korean utility company, appealed the decision in the New South Wales Land and Environment Court on December 16, 2019. After the Commission declined to participate in the proceedings, the Bylong Valley Protection Alliance, a community group, successfully intervened and was joined as a second respondent.
On December 18, 2020, the Court rejected KEPCO’s appeal, upholding the Independent Planning Commission’s findings that the mine was contrary to the principles of ecologically sustainable development and would have problematic climate impacts. KEPCO Bylong Australia v. Independent Planning Commission and Bylong Valley Protection Alliance (New South Wales Land and Environment Court).
Federal Court in Canada Dismissed Lawsuit Brought by Two Houses of the Wet’suwet’en Indigenous Group Against Canadian Government
Two houses of the Wet’suwet’en indigenous group filed a legal challenge on February 10, 2020 alleging that the Canadian government’s approach to climate change violated their constitutional and human rights.
On November 16, 2020, the Federal Court granted the Canadian government’s motion to strike without leave to amend on the grounds that the case was not justiciable, had no reasonable cause of action, and the remedies were not legally available. The Court found that the case was not justiciable because it did not have a sufficient legal component to anchor the analysis. The Court wrote, “[t]he issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government.” The Court further found that because plaintiffs did not reference specific sections of laws that cause specific breaches of Charter rights, their claims presented no reasonable cause of action. With regard to remedies, the Court found that the multifaceted problem of climate change would make judicial supervision meaningless, and therefore the Court could not take on a supervisory role to ensure adequate laws were passed.
On December 10, 2020, plaintiffs appealed the Federal Court judge’s dismissal to the Federal Court of Appeal. Lho’imggin et al. v. Her Majesty the Queen(Federal Court of Canada).
South Africa’s High Court Set Aside Governmental Authorizations of the Thabametsi Coal-Fired Power Plant
On March 26, 2018, EarthLife Africa and Trustees for the Time Being of the Groundwork Trust challenged the Minister of Environmental Affairs’ decision approving the environmental authorization of the 1200 MW coal-fired Thabametsi Power Project. The Minister reasoned that while the power plant would have significant greenhouse gas emissions and therefore cause climate change impacts, the power generation benefits of the project outweighed the harms. Plaintiffs asked the Court to set aside the decision as unlawful for failing to consider site-specific climate change impacts associated with the project.
On November 19, 2020, the High Court, pursuant to an agreement between applicants and defendants, issued an order setting aside all governmental authorizations for the coal-fired power plant and sending the decision back to the government for reconsideration. The Court also ordered the defendants to pay court costs. EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others (South Africa High Court).
NGOs Filed Suit Alleging the Government of Spain Unlawfully Failed to Set 2030 Climate Targets
On September 15, 2020, Greenpeace Spain, Oxfam Intermón, and Ecologistas en Acción filed a motion notifying Spain’s Supreme Court of their intention to sue 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.
On December 15, 2020, plaintiffs filed their lawsuit in the Supreme Court, alleging that Spain unlawfully failed to produce a National Energy and Climate Plan with 2030 climate targets, in violation of national law, EU regulations, and obligations under the Paris Agreement. Greenpeace v. Spain (Supreme Court of Spain).