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 # 142.
D.C. Circuit Vacated Trump EPA’s Affordable Clean Energy Rule
On January 19, 2021, the D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency’s (EPA’s) Affordable Clean Energy Rule (ACE Rule) for greenhouse gas emissions from power plants rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. The court therefore vacated and remanded the ACE Rule—which repealed the 2015 Clean Power Plan rule and in its place adopted a replacement rule that relied only on heat-rate improvements at individual plants. In concluding that Section 111 of the Clean Air Act does not limit EPA to identifying a “best system of emission reduction” consisting only of controls “that can be applied at and to a stationary source,” the D.C. Circuit’s majority opinion first concluded that neither the text nor the statutory history, structure, and purpose compelled such a reading. Second, the D.C. Circuit ruled that EPA incorrectly invoked the “major questions doctrine”—which requires a clear statement from Congress when an agency’s regulatory action is of “extraordinary” significance—to support its interpretation of Section 111. The court found that Congress and the courts had long recognized EPA’s authority to regulate greenhouse gases from power plants under Section 111, and that the major questions doctrine did not apply to EPA’s identification of the “best system of emission reduction.” The court said Congress knew “both the scope and important of what it was doing” when it gave EPA authority to set standards and that it “cabined the EPA’s authority with concrete and judicially enforceable statutory limitations.” With respect to the significant regulatory consequences of the standards, the D.C. Circuit indicated that the consequences were “a product of the greenhouse gas problem, not of the best-system’s role in the solution,” writing that “any nationwide regulation of [power plants’] greenhouse gas pollution will necessarily affect a broad swath of the Nation’s electricity customers.” The court also rejected EPA’s contention that the major questions doctrine applied because the Clean Power Plan regulated the electric grid and not air pollution. Third, the D.C. Circuit held that the federalism canon—requiring that Congress use “exceedingly clear language” to alter the balance of power between the federal government and the states—did not support an interpretation limiting the best system of emission reduction to measures applied at and to the source. The D.C. Circuit also rejected two arguments by coal companies against the ACE Rule. First, the court found that EPA made and retained the requisite endangerment finding for regulation of carbon dioxide emissions from power plants. Second, the court found that EPA “correctly and consistently” interpreted the Clean Air Act to permit both regulation of a source’s hazardous air pollutant emissions under Section 112 and emissions of other pollutants under Section 111(d). The D.C. Circuit also concluded that two petitioners—Texas Public Policy Foundation and Competitive Enterprise Institute—lacked organizational standing to challenge EPA’s authority to promulgate the ACE Rule. Finally, the D.C. Circuit found that amendments to the regulations implementing Section 111(d)—which extended the timeline for compliance—lacked reasoned support. Because EPA’s sole defense for repeal of the Clean Power Plan and replacement with the Affordable Clean Energy Rule was that the interpretation underlying the rule was the only permissible one, the D.C. Circuit vacated the ACE Rule and remanded to EPA. Judge Walker issued a separate opinion dissenting from the majority’s conclusion that EPA had authority to regulate coal-fired power plants under both Section 111 and Section 112. Although he concluded that regulation of coal-fired power plants was foreclosed for this “more mundane reason” and thus concurred in the vacating of the ACE Rule, Judge Walker also wrote that he doubted the validity of the Clean Power Plan—which he characterized as “arguably one of the most consequential rules ever proposed by an administrative agency”—under the major questions doctrine. The court directed that issuance of the mandate be withheld until seven days after disposition of any petition for rehearing or petition for rehearing en banc. American Lung Association v. EPA, No. 19-1140 (D.C. Cir. Jan. 19, 2021).
DECISIONS AND SETTLEMENTS
D.C. Circuit Declined to Stay EPA’s Amendments to Leak Detection and Repair Standards for Oil and Gas Sector
On January 15, 2021, the D.C. Circuit Court of Appeals denied a motion for partial stay pending review of EPA’s amendment of leak detection and repair standards for the oil and gas sector. Judge Pillard would have granted the motion. On January 19, Western Energy Alliance moved for leave to intervene as a respondent outside the time provided for in the Federal Rules of Appellate Procedure. The challenged rule—“Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration”—is one of the rules included on the non-exclusive list of rules identified by the Biden administration for review under the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. EPA asked the court to hold these cases in abeyance pending its review of the rule. Environmental Defense Fund v. Wheeler, No. 20-1360 (D.C. Cir. Jan. 15, 2021).
Montana Federal Court Found Failure to Take a Hard Look at Costs of Greenhouse Gas Emissions in Review of Coal Mine Expansion
The federal district court for the District of Montana found flaws in an updated environmental assessment for a mining plan modification that extended the life of the Spring Creek Mine, a surface coal mine in Montana. In earlier litigation challenging the same mining plan modification, the court found procedural and substantive violations of the National Environmental Policy Act (NEPA). In the instant case, the court agreed with a magistrate judge’s findings that the Office of Surface Mining Reclamation and Enforcement (OSM) failed to take a hard look at the impacts of coal transportation, failed to adequately consider the effects of downstream non-greenhouse gas emissions, and failed to quantify costs associated with greenhouse gas emissions even though OSM quantified the mine expansion’s socioeconomic benefits. Like the magistrate judge, the district court rejected claims that OSM improperly segmented its analysis and ignored cumulative impacts of the entire Spring Creek Mine. The court ordered OSM to prepare corrective NEPA analysis and deferred vacatur of mining plan approval for 240 days for preparation of the analysis. WildEarth Guardians v. Bernhardt, No. 17-cv-80 (D. Mont. Feb. 3, 2021).
After Denying Motions to Stop Construction Activities in National Petroleum Reserve, Alaska Federal Court Enjoined Certain Work for Two Weeks
On February 1, 2021, the federal district court for the District of Alaska denied motions for preliminary relief barring certain construction activities related to a major oil and gas development project in the National Petroleum Reserve in Alaska (NPR-A). First the court found that the plaintiffs’ NEPA claims were likely time-barred under the Naval Petroleum Reserves Production Act (NPRPA), which requires that actions seeking judicial review under NEPA “concerning oil and gas leasing” in NPR-A be brought within 60 days after notice of the availability of an environmental impact statement is published in the Federal Register. With respect to claims under the Endangered Species Act, the court found that that the plaintiffs failed to demonstrate that Southern Beaufort Sea polar bears would be irreparably injured before the court issued a ruling on the merits. On February 6, the court issued an injunction on certain construction activities through February 20 or until the Ninth Circuit rules on any motions for injunction pending appeal. The district court noted that the application of the NPRPA’s judicial review provision was one of first impression in the Ninth Circuit. The court further indicated that if the claim is not time-barred, the plaintiffs “could well be likely to succeed on the merits” of their claim that the defendants’ analysis of greenhouse gas emissions violated NEPA. The court also concluded that the plaintiffs had established a likelihood of irreparable harm. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, Nos. 3:20-cv-00290 & 3:20-cv-00308 (D. Alaska Feb. 1, 2021).
Magistrate Judge Recommended Dismissal of Citizen Suit Challenging Permitting for Underground Coal Mine
A magistrate judge in the federal district court for the District of Colorado recommended that the court grant an underground coal mine operator’s motion to dismiss a Clean Air Act citizen suit that alleged the mine required a Prevention of Significant Deterioration construction permit and a Title V operating permit. The magistrate judge concluded that the suit was barred by the statute of limitations. WildEarth Guardians v. Mountain Coal Co., No. 1:20-cv-01342 (D. Colo. Jan. 26, 2021).
Montana Federal Court Rejected Request to Halt Coal Mining in Expansion Area
The federal district court for the District of Montana denied a motion for a preliminary injunction enjoining mining operations in an expansion area for the Rosebud Mine, a coal mine in Montana. The court noted that the Office of Surface Mining Reclamation and Enforcement had approved the mine’s expansion in June 2019 but that the plaintiffs had not sought the preliminary injunction until August 2020. The court stated that “[u]nfortunately, the Court does not see what harm a preliminary injunction could prevent now that excavation in [the expansion area] has been ongoing since at least May 2020 and coal extraction since August 2020.” The court also found that the plaintiffs had not met their burden of demonstrating that a preliminary injunction would prevent irreparable harm from the release of greenhouse gases. The court indicated that the plaintiffs had conceded that halting mining in the expansion area would not affect the level of greenhouse gas emissions from a nearby power plant that used coal from the mine. Montana Environmental Information Center v. Bernhardt, No. 1:19-cv-00130 (D. Mont. Jan. 25, 2021).
Alaska Federal Court Declined to Bar Issuance of Leases on Arctic National Wildlife Refuge
The federal district court for the District of Alaska denied without prejudice motions for a preliminary injunction barring issuance of oil and gas leases and authorization of seismic exploration on the Arctic National Wildlife Refuge. The court found that the U.S. Bureau of Land Management (BLM) had not taken final action on a seismic survey proposal, but that if BLM approved the proposal, the plaintiffs could seek injunctive relief at that time. The court further found that the plaintiffs did not establish a likelihood of imminent irreparable harm since the challenged Record of Decision did not authorize any immediate “on-the-ground activities” and plaintiffs did not establish a likelihood such ground-disturbing activities would occur before the court’s final ruling on the merits. Gwich’in Steering Committee v. Bernhardt, Nos. 3:20-cv-00204, 3:20-cv-00205, 3:20-cv-00223 (D. Alaska Jan. 5, 2021).
Vermont Supreme Court Affirmed Public Utility Commission Approval for Solar Project
The Vermont Supreme Court upheld the Vermont Public Utility Commission’s decision granting a certificate of public good for construction and operation of a solar net-metering system. The arguments of the neighbors challenging the project included that the Commission erred in finding that the project would not have an undue adverse effect on greenhouse gases. The court concluded the neighbors had standing to make this argument, but found that the Commission’s finding that the project would not have an undue effect on greenhouse gas emissions was not clearly erroneous even though only “minimal evidence”—the project manager’s testimony that construction emissions would be similar to emission of projects of comparable size—supported the finding. Because the neighbors produced no other testimony and relied “merely on speculation that the excavation, regrading, and moving of materials would produce undue impacts,” the court upheld the Commission’s findings. In re Acorn Energy Solar 2, LLC, No. 2019-398 (Vt. Jan. 15, 2021).
Minnesota Court and D.C. Federal Court Declined to Stop Construction of Enbridge Line 3 Pipeline
The Minnesota Court of Appeals denied motions to stay the Minnesota Public Utilities Commission’s decisions authorizing Enbridge Energy, LP’s Line 3 pipeline replacement project. The court agreed that one of the movants—Friends of the Headwaters—was precluded from seeking a stay because it had not sought a stay from the Commission. On the merits of the stay motion by the Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe, the court found that the Commission’s denial of a stay was not an abuse of discretion. The court was not persuaded that completion of construction of the pipeline would moot the appeals and concluded both that the Commission was not required to consider whether the appeal raised substantial issues and also that it was not clear that the appeals raised substantial questions that would override other factors to require a stay. In re Enbridge Energy, LP, Nos. A20-1071 (Minn. Ct. App. Feb. 2, 2021).
On February 7, 2021, the federal district court for the District of Columbia denied the motion by Red Lake Band, White Earth Band, and other plaintiffs’ for a preliminary injunction in their case challenging U.S. Army Corps of Engineers permits for the pipeline project. The court, which did not address the plaintiffs’ arguments regarding alleged inadequacies in the climate change-related analyses, found that the plaintiffs failed to demonstrate a likelihood of success on the merits or that they would suffer irreparable harm. Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers, No. 1:20-cv-03817 (D.D.C. Feb. 7, 2021).
Colorado Court Ruled on Venue for Colorado Local Governments’ Climate Change Claims
A Colorado District Court in Boulder County denied fossil fuel company defendants’ motion to transfer the City of Boulder and Board of County Commissioners of Boulder County’s action seeking damages for climate change harms to Denver County District Court, but ruled that venue for the claims of the third plaintiff—the Board of County Commissioners of San Miguel County—would only be proper in San Miguel County. The court found that a forum selection clause in a 2009 Master Contract between one of the defendants and San Miguel County for sale and purchase of asphalt that specified Denver as the venue did not apply; nor did the forum selection clauses in “Confirmation Contracts” that the defendant and San Miguel County executed in 2018 and 2019 after this lawsuit commenced. The court found that the public nuisance venue statute did not apply because the plaintiffs sought damages, not an injunction to abate the nuisance; the court also found that venue was not proper in Boulder County under the venue statute for tort actions because the plaintiffs did not satisfy their burden of demonstrating that the alleged tortious conduct and deceptive trade practices did not occur in the county. In addition, the court declined to find venue was proper in Boulder County based on the defendant’s subsidiary’s production of fossil fuels in the county. The court agreed, however, with the City and County of Boulder that venue was proper under the statute governing venue in actions affecting real property because the City and County alleged direct injury to real property in the county and sought remedies related to that property. The court further found that the plaintiffs conceded that venue in Boulder County was not proper for San Miguel under this statute. Counsel for San Miguel County indicated that claims against a defendant that did not join the venue transfer motion would continue to be heard in Boulder County. County Commissioners of Boulder County v. Suncor Energy USA, No. 2018CV30349 (Colo. Dist. Ct. Jan. 25, 2021).
Town of Windsor Repealed “Reach Code” to Settle Developer Lawsuits but Court Expressed Skepticism About Challenge to City of Santa Rosa Natural Gas Ban
On January 6, 2021, the Town Council for Windsor, California voted to rescind an all-electric “reach code” adopted by the Town in 2019. The Town reportedly could not sufficiently fund its defense of the law, which was challenged by two developers. The agenda for the Town Council’s meeting indicated that the Town had reached a negotiated settlement with the developers that required the repeal of the ordinance and portions of a related ordinance. In a separate case in which one of the developer’s challenged the City of Santa Rosa’s natural gas ban, the court issued a tentative ruling that would deny the developer’s request that the court order the City to set aside its adoption of the reach code. The court reportedly was not persuaded by the developer’s argument that the City did not account for “unusual circumstances” such as wildfires and electric power blackouts that could cause significant impacts under an all-electric code. Gallaher v. Town of Windsor, No. SCV-265553 (Cal. Super. Ct. Jan. 6, 2021); Gallaher v. City of Santa Rosa, No. SCV265711 (Cal. Super. Ct. Jan. 27, 2021).
California Court Rejected Claims of Failure to Consider Future Sea Level Rise in Review of Shoreline Residential Project
A California Superior Court rejected a challenge under the California Environmental Quality Act to a residential development planned for the shoreline of San Francisco Bay. The petitioners had asserted that new information about the rate of sea level rise combined with more detailed information about the project’s design showed that impacts would be more severe than was disclosed in an environmental impact report prepared in 2015. The court reportedly ruled that the sea level rise issue was not relevant because potential flooding events would be “issues of impact of the environment on a project and not issues of the project’s impact on the environment.” Citizens Committee to Complete the Refuge v. City of Newark, No. RG19046938 (Cal. Super. Ct. Dec. 24, 2020).
NEW CASES, MOTIONS, AND OTHER NOTICES
Supreme Court Held Oral Argument on Scope of Appellate Review of Remand Order in Baltimore Climate Case; Certiorari Petition Filed in San Francisco and Oakland Case
On January 19, 2021, the U.S. Supreme Court heard oral argument 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 justices are considering the question of whether the scope of appellate review of the remand order extends to all of the bases for removal rejected by the district court, or only to the district court’s rejection of removal under the federal-officer removal statute. Coverage of the oral argument is available here. BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. Jan. 19, 2021).
Other developments in state and local governmental cases seeking to hold fossil fuel companies liable for contributing to climate change include the following:
- On January 29, fossil fuel companies filed their opposition to the City of Hoboken’s motion to remand its case to New Jersey state court. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Jan. 29, 2021).
- On January 8, 2021, fossil fuel companies filed a petition for writ of certiorari seeking review of the Ninth Circuit’s May 2020 reversal of the district court’s 2018 denial of Oakland’s and San Francisco’s motions to remand their climate change nuisance cases to California state court. The petition requested that the Court consider the questions of “[w]hether putative state-law tort claims alleging harm from global climate change are removable because they arise under federal law” and “[w]hether a plaintiff is barred from challenging removal on appeal after curing any jurisdictional defect and litigating the case to final judgment.” (The cities added federal nuisance claims to their complaints after the district court denied the remand motions.) On January 28, Oakland and San Francisco filed a motion in the federal district court for the Northern District of California to amend their complaints to withdraw claims under the federal common law of public nuisance so that the sole remaining claims would be alleged violation of California’s representative public nuisance law. The cities also filed a renewed motion to remand in which they contended that the fossil fuel companies’ remaining grounds for removal after the Ninth Circuit’s May 2020 decision—federal-officer removal, Outer Continental Shelf Lands Act, enclave jurisdiction, and bankruptcy removal—were not viable. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. motion to amend and motion to remand Jan. 28, 2021); Chevron Corp. v. City of Oakland, No. 20- (U.S. Jan. 8, 2021).
- Three defendants in Minnesota’s case seeking to hold the fossil fuel industry liable for causing a “climate-change crisis” moved to stay the case and hold in abeyance a decision on Minnesota’s motion to remand until the Supreme Court issues a decision in the Baltimore case and on the petition for writ of certiorari in Oakland and San Francisco’s case. Minnesota opposed the stay. Minnesota v. American Petroleum Institute, No. 20-cv-1636 (D. Minn. Jan. 15, 2021).
Trump Administration Did Not Weigh in on Montana and Washington’s Case Against Washington for Blocking Coal Exports
The Trump administration’s Acting Solicitor General did not file a brief in response to the Supreme Court’s invitation to express the views of the United States on Montana and Washington’s motion for leave to file a bill of complaint asserting that the State of Washington unconstitutionally denied access to its ports for shipments of coal from Montana and Wyoming. The two states contended that Washington’s denial of a water quality certification for a terminal violated the Dormant Commerce Clause and the Foreign Commerce Clause. The case was distributed for the conference on September 29, 2020, and on October 5, the Court invited the Acting Solicitor General to file a brief. Montana v. Washington, No. 22O152 (U.S.).
D.C. Circuit Granted Biden Administration Motion for Abeyance in Cases Challenging Actions Preempting State Regulation of Greenhouse Gas Emissions from Vehicles; Automotive Trade Group Withdrew from Cases
On February 8, 2021, the D.C. Circuit granted the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration’s (NHTSA’s) motion to hold in abeyance the cases challenging the Trump administration’s regulations preempting state vehicle greenhouse gas emission standards and zero emission vehicle mandates and the withdrawal of California’s waiver for such regulations. The cases will be held in abeyance while the agencies conduct their review under President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. States that had intervened to defend EPA and NHTSA’s actions opposed the abeyance motion. On February 2, 2021, the Coalition for Sustainable Automotive Regulation, Inc. and Automotive Regulatory Council, Inc. moved to withdraw as respondent-intervenors in the cases, as well as in a related district court case challenging the preemption regulations. Union of Concerned Scientists v National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir. motion to withdraw Feb. 2, 2021 and motion for stay Feb. 1, 2021); California v. Chao, No. 1:19-cv-02826 (D.D.C. motion to withdraw Feb. 2, 2021).
Challengers to Trump Administration’s Revised Fuel Economy and Emission Standards Filed Briefs
On January 14, 2021, petitioners filed their opening briefs in the D.C. Circuit proceedings challenging the Trump administration’s amendment of the greenhouse gas emission and fuel economy standards for light-duty vehicles. The public interest organization petitioners argued that EPA and NHTSA relied on a “fundamentally flawed analysis of pollution impacts” that “gave scant, if any consideration to the huge increases in climate-disrupting pollution” the amendments would cause. The public interest organization petitioners also contended that the agencies’ analysis of consumer effects was unlawful and arbitrary, that the cost-benefit analysis included “large and patent mistakes,” that NHTSA used inconsistent fuel-economy projections, and that the agencies failed to comply with the Endangered Species Act and the National Environmental Policy Act (NEPA). The state and local government petitioners argued that EPA had arbitrarily rescinded the 2017 final determination that the standards for model years 2022-2025 remained appropriate, and that EPA disregarded emission increases, failed to exercise independent judgment by uncritically accepting analysis prepared by NHTSA, and relied on underlying analysis containing numerous errors. The state and local governments also asserted that NHTSA acted unlawfully by improperly elevating non-statutory policy objectives of the “core objective of conserving energy,” preparing and relying on underlying analysis that including “fundamental flaws,” and failing to comply with the requirements of the Clean Air Act, the Endangered Species Act, and NEPA. Industry petitioners argued that EPA and NHTSA “distort[ed] the record on consumer acceptance of electric vehicles,” mischaracterized electric automakers’ reliance on credits, and disregarded safety benefits of electric vehicles. Competitive Enterprise Institute (CEI) argued that NHTSA should have considered more lenient standards that would result in safer vehicles and also contended that the agencies overstated the health risks of fine particulate matter. Eleven briefs were filed on behalf of the non-CEI petitioners by amici parties, including by Clean Fuels Development Coalition and other petitioners that had originally filed their own petition of review to argue that EPA failed to consider the role ethanol could play in improving fuel efficiency and reducing emissions and that EPA failed to consider impacts from harmful aromatic compounds. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir.).
EPA Requested Postponement of Oral Argument in Landfill Emission Guidelines Case
On February 2, 2021, EPA filed an unopposed motion to postpone oral argument in the proceedings challenging the final rule delaying implementation of emission guidelines for existing municipal solid waste landfills. Oral argument is scheduled for February 22. EPA requested that the argument not take place before April 8 to allow EPA time to evaluate the impact of the D.C. Circuit’s opinion in the Affordable Clean Energy Rule case (which vacated regulations extending timelines for implementation of emission guidelines) as well as to review the landfill delay rule pursuant to the Executive Order on Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis. The non-exclusive list of agency actions accompanying the executive order included the landfill delay rule as one of the rules that must be reviewed. Environmental Defense Fund v. EPA, No. 19-1222 (D.C. Cir. Jan. 26, 2021).
States and Environmental Organizations Challenged Air and Energy Rules from Trump Administration’s Final Days
- On January 19, 2021, states filed a number of lawsuits challenging rules adopted in the final days of the Trump administration, including rules with ramifications for control of greenhouse gas emissions. The lawsuits included a proceeding challenging EPA’s rule on “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” as well as EPA’s final rule that set a threshold for determining whether greenhouse gas emissions from new source performance standard (NSPS) source categories contribute significantly to dangerous air pollution. The rule would require that a source category’s emissions constitute 3% of U.S. greenhouse gas emissions in order to be regulated in the NSPS program. Environmental groups also filed lawsuits challenging these two rules. The states also filed lawsuits in the Second Circuit challenging the U.S. Department of Energy (DOE) rule creating new product classes for short cycle washers and dryers (discussed above) and the DOE rule establishing an interim waiver process for test procedures for the energy efficiency program. New York v. EPA, No. 21-1026 (D.C. Cir., filed Jan. 19, 2021); California v. EPA, No. 21-1035 (D.C. Cir., filed Jan. 19, 2021); New York v. U.S. Department of Energy, No. 21-107 (2d Cir., filed Jan. 19, 2021); California v. U.S. Department of Energy, No. 21-108 (2d Cir., filed Jan. 19, 2021); California Communities Against Toxics v. EPA, No. 21-1041 (D.C. Cir., filed Jan. 25, 2021); American Public Health Association v. EPA, No. 21-1036 (D.C. Cir., filed Jan. 19, 2021).
- A few days earlier, states and environmental groups filed petitions for review challenging the aircraft greenhouse gas standards adopted by EPA. California v. EPA, No. 21-1018 (D.C. Cir., filed Jan. 15, 2021); Center for Biological Diversity v. EPA, No. 21-1021 (D.C. Cir., filed Jan. 15, 2021).
- Alliance for Water Efficiency, U.S. Public Interest Research Group, and Environment America filed two petitions for review in the Seventh Circuit Court of Appeals challenging final energy conservation rules adopted by the U.S. Department of Energy in December 2020 for showerheads and for residential clothes washers and consumer clothes dryers. The showerhead rule adopted a revised definition for “showerhead” pursuant to which each showerhead in a product with multiple showerheads is considered separately for purposes of determining compliance with energy conservation standards. The rule also added definitions for “body spray” and “safety shower showerhead” to clarify which products are not subject to the energy conservation standard for showerheads. The washers and dryers rule created new “short cycle” product classes for washers and dryers that take less time for a normal cycle. The current energy conservation standards do not apply to the new product classes. In a press release announcing the lawsuits, a representative for one of the petitioners stated that “it makes absolutely no sense to reverse policies that have successfully lowered our carbon emissions and reduced utility bill costs for Americans.” The washers and dryers rule is on the non-exclusive list of rules identified by the Biden administration for review under the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1167 (7th Cir., filed Jan. 27, 2021); Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1166 (7th Cir., filed Jan. 27, 2021).
- Natural Resources Defense Council and Sierra Club filed a petition for review challenging an interim final rule published on January 14, 2021 that provided that a 2016 inflation adjustment to the civil penalty for violations of Corporate Average Fuel Economy standards would not go into effect until model year 2022. The National Highway Traffic Safety Administration adopted the interim final rule in response to an October 2020 rulemaking petition from the Alliance for Automotive Innovation. The Alliance submitted the rulemaking petition after a Second Circuit ruling in August 2020 reinstated the 2016 penalty increase. Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, No. 21-0139 (2d Cir., filed Jan. 25, 2021).
EPA Sought to Suspend Lawsuit Challenging Amendments to Air Standards for New Sources in Oil and Gas Sector
On January 15, 2021, EPA filed a brief in defense of its amendments of the new source performance standards for the oil and gas sector. EPA argued that it acted reasonably when it removed transmission and storage sources from the source category and that it also was reasonable to rescind methane standards for oil and gas production and processing sources. On the issue of the rescission of the methane controls, EPA argued that the 2016 methane standards were invalid because they were not supported by a valid “significant contribution finding.” On February 1, EPA moved to hold the cases in abeyance pending review of the rule pursuant to President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. California v. Wheeler, No. 20-1357 (D.C. Cir. abeyance motion Feb. 1, 2021; respondents’ brief Jan. 15, 2021).
Trade Group Challenged Suspension of Federal Oil and Gas Leasing Program
Western Energy Alliance—a trade association that represents companies in the oil and natural exploration and production industry—filed a petition for review in the federal district court for the District of Wyoming challenging the Biden administration’s suspension of the federal oil and gas leasing program. The trade association asserted that the suspension was “an unsupported and unnecessary action that is inconsistent with the Secretary [of the Interior’s] statutory obligations.” Western Energy Alliance v. Biden, No. 0:21-cv-00013 (D. Wyo., filed Jan. 27, 2021).
Lawsuit Challenged Corps of Engineers Permits for Line 3 Pipeline
On January 21, 2021, a new lawsuit was filed in the federal district court for the District of Columbia challenging permits issued by the U.S. Army Corps of Engineers for Enbridge Energy, LP’s Line 3 crude oil pipeline in Minnesota. The plaintiff asserted that the Corps failed to comply with the Clean Water Act, NEPA, Corps regulations, and the Administrative Procedure Act. The complaint’s allegations of NEPA noncompliance included that the Corps failed to consider the potential lifecycle greenhouse gas emissions from putting the Line 3 oil pipeline into service and the associated social cost of climate change. In a related case, the court on February 7 denied a motion for a preliminary injunction. Friends of the Headwaters v. U.S. Army Corps of Engineers, No. 1:21-cv-00189 (D.D.C., filed Jan. 21, 2021).
Group Sought to Challenge Additional Oil and Gas Lease Sales in New Mexico
Diné Citizens Against Ruining the Environment (Diné CARE) filed an unopposed motion to file a supplemental complaint that would challenge additional oil and gas lease sales in the Greater Chaco region in New Mexico. The proposed supplemental complaint would challenge 42 total parcels covering approximately 45,000 acres. Diné CARE asserted that the U.S. Bureau of Land Management failed to take a hard look at cumulative greenhouse gas emissions and cumulative climate change impacts, failed to take a hard look at health and environmental justice impacts, and should have prepared an environmental impact statement. Diné CARE also asserted a failure to comply with public participation requirements under NEPA and the Federal Land Policy and Management Act. Diné Citizens Against Ruining the Environment v. U.S. Bureau of Land Management, No. 1:20-cv-00673 (D.N.M. motion to supplement complaint Jan. 19, 2021).
Plaintiffs Said New Analyses of Columbia River System Dams Still Failed to Adequately Consider Climate Change
National Wildlife Federation and other plaintiffs filed an eighth supplemental complaint in their long-standing suit challenging management of hydroelectric dams on the Columbia and Snake Rivers. The plaintiffs alleged that actions taken by the National Marine Fisheries Service, the U.S. Army Corps of Engineers, and the U.S. Bureau of Reclamation in 2020 did not cure defects—including climate change-related defects—identified in a 2016 order of remand by the federal district court for the District of Oregon. Among other things, the plaintiffs alleged that a 2020 biological opinion failed to fully assess the impacts of climate change on salmon, and also failed to consider climate change threats to the Southern Resident killer whale. Under NEPA, the plaintiffs alleged that the analysis of alternatives “does not account for the advancing impacts of climate change, and instead is based on temperatures observed in the region between 1929 and 2008” and that the environmental impact statement then addresses climate change separately from this “counterfactual” scenario in an assessment that “is cursory, truncated, and fails to incorporate credible and available information.” The alleged shortcomings included consideration of climate impacts over a 25-year timeframe despite the analysis of other impacts over 50 years and failure to assess how climate change will compound harms. American Rivers v. National Marine Fisheries Service, No. 3:01-cv-00640 (D. Or. supplemental complaint Jan. 19, 2021).
Lawsuits Challenged NEPA Reviews for Oil and Gas Lease Sales in Colorado, New Mexico, Utah, and Wyoming
On January 19, 2021, WildEarth Guardians and Physicians for Social Responsibility filed a lawsuit in the federal district court for the District of Columbia challenging 890 oil and gas leases covering more than one million acres across Colorado, New Mexico, Utah, and Wyoming. They asserted that the U.S. Bureau of Land Management (BLM) failed to fully analyze the direct, indirect, and cumulative climate change impacts of the leases. The plaintiffs alleged that although BLM had recognized and sought to remedy deficient NEPA reviews for other oil and gas lease sales after the court’s 2019 decision concerning Wyoming leases in another case, BLM had not done so with respect to the 19 lease sales challenged in this case. WildEarth Guardians v. Bernhardt, No. 1:21-cv-00175 (D.D.C., filed Jan. 19, 2021).
The case in which the federal court in the District of Columbia issued the 2019 decision finding the analysis of climate change impacts of Wyoming oil and gas leases to be inadequate is ongoing and also concerns leases in Colorado and Utah. After the 2019 decision, the court granted BLM’s request for voluntary remand to allow BLM to review the Colorado and Utah leases in light of the decision. In November 2020, the court found that BLM had failed to adequately address the Wyoming leases’ climate change impacts on remand. On January 26, 2021, the plaintiffs filed an unopposed motion to supplement their complaint to challenge the environmental assessments BLM prepared for the Colorado and Utah leases during the voluntary remand. The plaintiffs alleged that the new EAs “continue to fail to properly analyze the direct, indirect, and cumulative impacts on our climate as required by this Court and NEPA.” WildEarth Guardians v. Bernhardt, No. 1:16-cv-01724 (D.D.C., filed Jan. 26, 2021).
States and Environmental Groups Alleged Definition of “Habitat” Would Constrain Endangered Species Act Responses to Climate Change
States and New York City filed a lawsuit in the federal district court for the Northern District of California challenging two regulations adopted under the Endangered Species Act in December 2020. The plaintiffs asserted that the first rule, which defines the statutory term “habitat,” “fails to account for species’ need to expand their current ranges or to migrate to currently unoccupied habitat in response to existential threats such as climate change and habitat destruction to ensure species recovery and survival as mandated by the [Endangered Species Act].” The plaintiffs asserted that the process established by the second rule, the “Habitat Exclusion Rule,” would exclude more areas from critical habitat designation and protection under the Endangered Species Act. The states alleged that the rules violated the Endangered Species Act, NEPA, and the Administrative Procedure Act. California v. Bernhardt, No. 4:21-cv-00440 (N.D. Cal., filed Jan. 19, 2021).
Environmental groups filed a separate lawsuit challenging the rule defining “habitat.” Their lawsuit, filed in the federal district court for the District of Hawai‘i, alleged that the definition “fails to account for the impacts of climate change by giving species only enough habitat to eke out an existence in today’s climate, as opposed to protecting the areas they will need to recover and thrive in the long term.” The groups contended that the plain language of the Endangered Species Act did not support the exclusion from the “habitat” definition of “currently unoccupied areas that the best available science identifies as essential to species conservation in the future, when imperiled species will need to move to or otherwise utilize new areas in response to climate change.” They asserted claims under the Endangered Species Act, NEPA, and the Administrative Procedure Act. Conservation Council for Hawai‘i v. Bernhardt, No. 1:21-cv-00040 (D. Haw., filed Jan. 14, 2021).
Lawsuit Said Forest Service Failed to Consider Cumulative Climate Change Impacts of Livestock Grazing
Two environmental organizations challenged the U.S. Forest Service’s authorization of livestock grazing on 270,000 acres in the Apache-Sitgreaves and Gila National Forests in Arizona and New Mexico. They asserted that the Forest Service violated NEPA by failing to prepare an environmental impact statement for the project, which they alleged would “result in cumulatively significant impacts when considered against the impacts of climate change – those impacts from higher temperature regimes, increased wildfire risk, and prolonged drought that are impending as the climate continues to change, and that are already visibly occurring.” They alleged that the environmental assessment failed to take a hard look at how livestock grazing would directly, indirectly, and cumulative impact forest resources and habitats already experiencing the impacts of drought and climate change. Western Watersheds Project v. Perdue, No. 4:21-cv-00020 (D. Ariz., filed Jan. 14, 2021).
New York Challenged Summer Flounder Allocation Allegedly Based on “Obsolete” Data
The State of New York and the New York State Department of Environmental Conservation (New York) filed a lawsuit in the federal district court for the Southern District of New York alleging that the federal defendants’ rules allocating the annual quota for summer flounder and applying the allocation to the 2021 season were arbitrary, capricious, and not in accordance with law. New York contended that the allocation rules were “based on obsolete 1980s data reflecting a summer flounder fishery that no longer exists” because the “center of biomass of the summer flounder stock as shifted northeast,” which researchers believe is due in part to ocean warming. New York asserts that the allocation rules discriminate against New York residents and allocates fishing privileges in an unfair and inequitable manner and is, for that reason and other reasons, inconsistent with the Magnuson-Stevens Act. New York v. Ross, No. 1:21-cv-00304 (S.D.N.Y., filed Jan. 13, 2021).
Lawsuit in Montana Federal Court Challenged NEPA Reviews for 2019 and 2020 Oil and Gas Lease Sales
WildEarth Guardians and four other organizations filed a complaint in the federal district court for the District of Montana asserting that the U.S. Bureau of Land Management’s (BLM’s) sales of oil and gas leases on public lands in Montana and North Dakota between July 2019 and September 2020 suffered from the same defects that the court identified in a May 2020 decision that vacated 2017 and 2018 leases. In particular, the plaintiffs alleged that BLM failed to adequately consider the lease sales’ effects on greenhouse gas emissions and climate and on groundwater and drinking water. WildEarth Guardians v. U.S. Bureau of Land Management, No. 4:21-cv-00004 (D. Mont., filed Jan. 12, 2021).
Forest Service Categorical Exclusions Challenged in Virginia Federal Court
A lawsuit filed in the federal district court for the Western District of Virginia challenged three categorical exclusions adopted by the U.S. Forest Service to exempt certain projects from NEPA review. The three categorical exclusions are for commercial logging projects up to 2,800 acres and construction of up to three miles of logging roads; construction of up to two miles of permanent road for any purpose; and “special use” authorizations for private uses affecting up to 20 acres of national forest lands. The complaint asserted that the final rule violated NEPA and the Administrative Procedure Act, including because the Forest Service did not consider the exclusions’ impacts in light of conditions that are rapidly changing due to climate change. The complaint also alleged that the final rule would allow significant climate impact to occur without analysis “[b]ecause there is no programmatic analysis of the cumulative impact of successive projects on carbon storage.” The plaintiffs contended that the Forest Service should have prepared an environmental impact statement or an environmental assessment to address, among other subjects, the rule’s impact on efforts to limit greenhouse gas emissions. Clinch Coalition v. U.S. Forest Service, No. 2:21-cv-00003 (W.D. Va., filed Jan. 8, 2021).
Lawsuit Filed to Prevent Minnesota’s Adoption of Greenhouse Gas Standards for Vehicles
Minnesota Auto Dealers Association (MADA) filed a lawsuit in federal court in Minnesota to enjoin the Minnesota Pollution Control Agency (MPCA) from establishing greenhouse gas emissions standards for new vehicles and imposing quotas for zero-emission vehicle sales. Citing EPA’s withdrawal of California’s waiver for greenhouse gas vehicle emission standards and zero emission vehicle mandates and NHTSA’s 2019 preemption rule, MADA asserted that federal law expressly preempts MPCA’s December 2020 proposal to adopt California vehicle standards beginning with model year 2025. Minnesota Automobile Dealers Association v. Minnesota, No. 0:21-cv-00053 (D. Minn., filed Jan. 6, 2021).
Environmental Groups Sought Response on Clean Air Act Petitions for Texas Facilities
Four environmental groups and a Texas resident filed a Clean Air Act citizen suit seeking to compel EPA to respond to petitions requesting that EPA object to Title V permits issued by the Texas Commission on Environmental Quality for eight facilities, including facilities that the plaintiffs allege are major sources of greenhouse gases. The plaintiffs filed the petitions between 2017 and 2020. They asserted that the EPA Administrator had a nondiscretionary duty to grant or deny the petitions. Environmental Integrity Project v. Wheeler, No. 1:21-cv-00009 (D.D.C., filed Jan. 4, 2021).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Administrative Court of Paris Issued Decision Recognizing French Government’s Inaction on Climate Change
On March 14, 2019, four nonprofits (Fondation pour la Nature et l’Homme (FNH), Greenpeace France, Notre Affaire à Tous and Oxfam France) initiated a lawsuit against the French government by filing a “summary request” before the Administrative Court of Paris. The plaintiffs requested that the State of France be enjoined to remedy its inadequate action on climate change. They further requested compensation for the damages suffered as a result of the State’s failure to tackle climate change to be paid as “the symbolic sum of 1 euro for their moral prejudice.”
On February 3, 2021, the Administrative Court of Paris issued a decision recognizing that France’s inaction has caused ecological damage from climate change and awarded the plaintiffs the requested one euro for moral prejudice caused by this inaction. The Court deferred the decision on whether to issue an injunction to order the French government to take stronger climate measures, and ordered the government to disclose steps it was taking to meet its climate targets within two months. As part of the decision, the Court held that France could be held responsible for failing to meet its own climate and carbon budget goals under European Union and national law. But the Court rejected arguments that the government could be forced to meet more specific renewable energy and energy efficiency targets on the grounds that such sectoral measures cannot be independently directly linked to ecological damage. Further, the Court declined to issue compensatory damages for ecological harm, as the Court found that the plaintiffs had not shown that the government will be unable to repair the harm caused. Notre Affaire à Tous and Others v. France (Administrative Court of Paris).
Climate Suit Filed Against Government of Taiwan for Inadequate Renewable Energy Regulations
On February 3, 2021, Greenpeace East Asia, the Environmental Jurists Association, and four individual plaintiffs filed suit against Taiwan’s Ministry of Economic Affairs (MOEA), alleging that the agency’s Regulation for Large Power Consumers was not ambitious enough, in violation of the country’s climate laws. MOEA’s Regulation for Large Power Consumers entered into force on January 1, 2020 and requires large consumers to transition 10% of their contracted capacity to renewable energy. Plaintiffs challenge two aspects of the regulations. They argue that the regulations improperly applied only to 10% of contracted capacity, rather than 20% of actual consumption; and that the regulations improperly raised the threshold for who qualifies as a large power consumer to 5,000kWh, exempting 90% of large company consumers. Plaintiffs argue that the defects are in violation of the Greenhouse Gas Reduction and Management Act and the Renewable Energy Development Act, which set a 20% renewable energy goal by 2025. Plaintiffs seek a court order for the MOEA to amend the Regulation for Large Power Consumers. According to the plaintiffs, this is the first citizen suit in Taiwan seeking a reduction in carbon emissions. Greenpeace East Asia and others v. Ministry of Economic Affairs (Taipei Administrative Court).
EU General Court Ruled that the European Investment Bank Must Accept Petition for Review of Biomass Power Plant Loan
The European Investment Bank (EIB) agreed to provide a 60 million euro loan to build a 50 megawatt biomass power plant in Spain in 2018. On August 9, 2018, environmental nongovernmental organization ClientEarth submitted a request to the EIB for internal review of that decision. ClientEarth disputed that the project would contribute to renewable energy objectives because, in part, it overestimated environmental advantages associated with biomass and underestimated logging and forest fire emission risks. On October 30, 2018, EIB rejected the request as inadmissible on the grounds that its financing decision was not an “administrative act” and that the decision was not taken “under environmental law” as defined in the Aarhus Convention and therefore was not subject to internal review. On January 8, 2019, ClientEarth filed suit in the EU General Court alleging this rejection was unlawful.
The EU General Court issued a decision on January 27, 2021, ordering that the EIB must accept ClientEarth’s petition for internal review. The Court found that the financing decision was taken “under environmental law” because all acts of public authorities which may violate environmental law, regardless of whether the institution is formed by environmental law, should be subject to internal review. Here the EIB’s decision was based on an assessment of whether it met renewable energy goals and therefore impacted environmental law. Further, the Court found that the decision was an “administrative act” despite the terms and conditions of the loan not yet being set because it produced definitive legally binding effects on third parties by enabling others to take steps to formalize the loan. ClientEarth v. European Investment Bank (EU General Court).
UK Court of Appeal Upheld UK Government’s Approval of Major Natural Gas Plant
On January 30, 2020, ClientEarth filed an action in the High Court challenging the UK government’s decision to approve a natural gas plant, which would be Europe’s largest. The High Court ruled for the defendants on May 22, 2020. The judge determined that the case involved policy questions requiring a balancing of interests, and that other public interests weigh against the UK’s climate goals and for the plant’s approval. ClientEarth appealed.
On January 21, 2021, the Court of Appeal upheld the High Court’s decision and rejected ClientEarth’s appeal, finding that the government’s approval of the plant was lawful. The Court of Appeal found that the government balanced the adverse effects of the project, including greenhouse gas emissions, with the positive effects, including socioeconomic outcomes and re-use of existing infrastructure, and lawfully concluded that the benefits outweighed the adverse impacts. The Court of Appeal departed from the High Court in reasoning that greenhouse gas emissions are capable of being treated as “a freestanding reason for refusal” by the government. Nevertheless, the Court reasoned that such emissions are not an “automatic and insuperable obstacle” to approval of infrastructure projects, and the decision-maker has discretion over the weight to assign to greenhouse gas emissions in approval decisions. ClientEarth v. Secretary of State (UK Court of Appeal).
Dutch Court Rejected Greenpeace’s Suit Challenging the Dutch Government’s Bailout of Airline KLM on Climate Grounds
On October 7, 2020, Greenpeace Netherlands filed suit alleging that the Dutch government’s bailout package for airline KLM violated the State’s duty of care to prevent the high risk of dangerous climate change. In a notice of possible legal procedure sent to the Dutch government in advance of the suit, plaintiffs cited the European Convention on Human Rights and the Paris Agreement as establishing that duty of care, and the Dutch Supreme Court’s Urgenda decision as affirming the duty of care. Plaintiffs alleged that by failing to attach binding climate conditions to the 3.4 billion euro bailout package, the government violated human rights. Greenpeace sought a court order either prohibiting the State from providing financial support or conditioning such support on KLM setting a cap on CO2 emissions by the airline.
On December 9, 2020, the Hague District Court judge rejected Greenpeace’s claim on the grounds that the State does not have a legally enforceable obligation to attach climate conditions to the bailout package. The judge reasoned that the executive has a high level of discretion in acting to respond to the coronavirus crisis, and that a judge is limited in such situations to intervening only where a positive legal right has been violated. The judge found no such right here because the Paris Agreement and other international climate treaties do not commit parties to reducing emissions from cross-border aviation. Further, the judge noted that the sustainability conditions that were included in the bailout package were fully in line with the Netherlands’ international climate obligations. Greenpeace Netherlands v. State of the Netherlands (The Hague District Court).