March 2021 Updates to the Climate Case Charts

By Margaret Barry and Korey Silverman-Roati  

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.

If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

 

 

 

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 143.

FEATURED CASE

Hawai‘i Federal Court Sent Honolulu’s and Maui’s Climate Cases Back to State Court; Fossil Fuel Companies Appealed

The federal district court for the District of Hawai‘i remanded cases brought by the City and County of Honolulu and the County of Maui seeking to hold fossil fuel companies liable for climate change-related damages. The court rejected three grounds for federal jurisdiction because the Ninth Circuit rejected them in City of Oakland v. BP p.l.c., 969 F.3d 895 (9th Cir. 2020): (1) that the plaintiffs’ claims arose under federal common law; (2) that federal law preempted the claims; and (3) that the claims necessarily raised disputed and substantial federal issues (Grable jurisdiction). The court then concluded that because the plaintiffs elected to pursue claims based on the companies’ alleged concealment of the climate change risks of fossil fuels and not on the defendants’ extraction and production of fossil fuels, their claims did not relate to the companies’ activities on the Outer Continental Shelf, under the direction of federal officers, or on federal enclaves, and the companies therefore established no other basis for federal jurisdiction. With respect to federal-officer jurisdiction, the district court noted that this case was similar to County of San Mateo v. Chevron Corp. in which the Ninth Circuit affirmed a district court finding that the federal-officer removal statute did not provide jurisdiction. The Hawai‘i district court found that any additional evidence provided by the companies in these cases did not establish that the companies acted under a federal officer with respect to oil and gas leases, operation of a National Petroleum Reserve, or supplying to the strategic petroleum reserve; the court also found no causal connection between the plaintiffs’ concealment-based claims and actions the companies contended were taken at the direction of a federal officer. In addition, the court found that the companies made only conclusory assertions that colorable federal defenses existed. On March 5, 2021, the court denied the companies’ motions to stay the remand order but delayed transmission of the order to the state courts for 10 days to allow the companies to seek relief in the Ninth Circuit. City & County of Honolulu v. Sunoco LP, No. 1:20-cv-00163 (D. Haw. Feb. 12, 2021); County of Maui v. Chevron U.S.A. Inc., No. 20-cv-00470 (D. Haw. Feb. 12, 2021), Nos. 21-15313 & 21-15318 (9th Cir.).

DECISIONS AND SETTLEMENTS

Ninth Circuit Denied Rehearing in Youth Plaintiffs’ Constitutional Climate Case Against Federal Defendants

On February 10, 2021, the Ninth Circuit Court of Appeals denied youth plaintiffs’ petition for rehearing en banc of the court’s January 2020 ruling that the plaintiffs lacked standing to pursue their constitutional claims against the United States and other federal defendants for infringing on the plaintiffs’ right to a life-sustaining climate system. A week later the plaintiffs filed a motion to stay the mandate pending the filing and disposition of a petition for writ of certiorari in the Supreme Court. The plaintiffs contended that their certiorari petition would present substantial questions meriting Supreme Court review regarding the rights of children, and that there was good cause to stay the mandate due to the irreparable harm that would result from dismissal of the case. The plaintiffs’ arguments included that the Biden-Harris administration should be allowed the opportunity to decide whether to engage in settlement negotiations. On March 1, the federal defendants filed their opposition to the motion to stay the mandate, arguing that the Supreme Court was unlikely to grant the petition, “much less reverse this Court’s judgment,” because the Ninth Circuit had applied settled precedent. The U.S. defendants also contended that the plaintiffs would not suffer irreparable harm, given that they would be able to obtain relief if the Supreme Court ruled in their favor. The defendants also noted that issuance of the mandate “is no impediment to settlement” since settlement remained possible so long as a case was pending, even if pending before the Supreme Court. On March 5, the plaintiffs withdrew their motion to stay “[b]ecause Defendants’ position is clear that the issuance of the mandate does not preclude settlement or Plaintiffs’ ability to seek future relief from the issuance of the mandate.” The Ninth Circuit issued the mandate the same day. Juliana v. United States, No. 18-36082 (9th Cir. order Feb. 10, 2021; motion to stay mandate Feb. 17, 2021).

Washington Appellate Court Affirmed Dismissal of Youth Climate Case Against State

Although its opinion stated that “[w]e firmly believe that the right to a stable environment should be fundamental,” the Washington Court of Appeals nonetheless affirmed the dismissal of a lawsuit brought by 13 youths who asserted that the State of Washington and State agencies and officials infringed on their fundamental right to a stable climate system by creating and maintaining transportation and energy systems that relied on fossil fuels and resulted in greenhouse gas emissions. The court concluded that judicial resolution of the youths’ claims would violate the separation of powers doctrine and also rejected the youths’ substantive due process, equal protection, state-created danger, and public trust doctrine claims on the merits. With respect to separation of powers, the Court of Appeals found that to provide the relief sought by the youths—an order requiring the State to develop an enforceable “climate recovery plan”—the court would have to order the legislative and executive branches to create and implement the plan, which would contravene the Washington Constitution’s commitment of legislative power to the legislative branch. The court further found that there was no judicially manageable standard by which it could resolve the claims, noting that scientific expertise would be required to determine the appropriate amount of greenhouse gas emission reductions. In addition, the court found that the State had already made policy determinations regarding climate change and established and implemented a regulatory regime, and that judicial resolution of the lawsuit would “usurp the authority and responsibility of the other branches.” The court also rejected the youths’ argument that their claims were justiciable under the Uniform Declaratory Judgments Act (UDJA). The court reasoned that any remedy it granted would not be final and conclusive—and the claims therefore would not be justiciable under the UDJA—since the remedy would require the court to retain jurisdiction to oversee implementation of the climate recovery plan. In its consideration of the merits of the youths’ claims, the court held that neither the Washington Constitution nor Washington statutes provided a fundamental right to a healthful and peaceful environment or to a stable climate system. In addition, the court rejected the youths’ claims that the defendants violated their equal protection rights, both because they failed to establish that a fundamental right was implicated and also because they failed to establish youth as a suspect or quasi-suspect class with immutable characteristics. The court also found that the youths could not show that the State acted affirmatively to create a danger but instead alleged that their injuries resulted from a failure to act. Finally, the court rejected the youths’ public trust doctrine claim because it was based on the “climate system as a whole, including the atmosphere,” and Washington’s public trust doctrine had not been expanded to encompass the atmosphere. Aji P. v. State, No. 80007-8-I (Wash. Ct. App. Feb. 8, 2021).

D.C. Circuit Granted EPA Request to Stay Issuance of Mandate Vacating Repeal of Clean Power Plan

On February 22, 2021, the D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motion for a partial stay of the issuance of the mandate in the lawsuit challenging the Trump administration’s final rule repealing and replacing the Obama administration’s Clean Power Plan, which regulated greenhouse gas emissions from existing power plants under Section 111(d) of the Clean Air Act. On January 19, the D.C. Circuit vacated both the repeal and replacement components of the final rule, finding that the rule was based on an erroneous reading of the Clean Air Act. In its February 12 motion for partial stay of the mandate, EPA indicated that it “strongly” believed that no Section 111(d) rule should go into effect until EPA conducted new rulemaking in response to the January 19 decision. In its February 22 order, the court withheld issuance of the mandate with respect to the repeal of the Clean Power Plan and directed issuance of the mandate “in the normal course” for the vacatur of the replacement portion of the rule as well as timing provisions in the implementing regulations. EPA was directed to file status reports at 90-day intervals. American Lung Association v. EPA, No. 19-1140 (D.C. Cir. Feb. 22, 2021).

EPA Withdrew Appeal of Order Vacating Negative Jurisdictional Determination for Salt Ponds

On February 26, 2021, EPA moved to voluntarily dismiss its appeal of a district court’s order that vacated a negative jurisdictional determination under the Clean Water Act for the Redwood City Salt Ponds along San Francisco Bay. The plaintiffs alleged that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California’s ability to mitigate sea level rise impacts, though the district court’s decision did not address this issue, focusing instead on EPA’s determination that the salt ponds had been transformed into “fast land” prior to enactment of the Clean Water Act. The district court remanded the matter to EPA for evaluation of factors including the nexus between the salt ponds and the Bay and the extent to which the salt ponds “significantly affect the chemical, physical, and biological integrity of the Bay.” San Francisco Baykeeper v. EPA, No. 20-17359 (9th Cir. Feb. 26, 2021).

In Challenge to Oil and Gas Development Project in National Petroleum Reserve, Ninth Circuit Enjoined Construction Activities for Duration of Appeal

The Ninth Circuit Court of Appeals ordered the continuation of a temporary injunction on certain construction activities related to a major oil and gas development project in the National Petroleum Reserve-Alaska while the plaintiffs appeal the district court’s denial of their motions for a preliminary injunction. The district court concluded that the plaintiffs were unlikely to succeed on their National Environmental Policy Act (NEPA) claims because the claims were time-barred under the Naval Petroleum Reserves Production Act (NPRPA). The Ninth Circuit found that the plaintiffs raised a serious question regarding whether the NPRPA’s time limit on filing claims for judicial review applied in this case. The Ninth Circuit further found that the plaintiffs would suffer irreparable harm in the absence of an injunction, that at least one of their NEPA claims was likely to succeed if timely, that the balance of equities favored relief, that the balance of hardships tipped sharply in the plaintiffs’ favor, and that an injunction was in the public interest. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 21-35085 (9th Cir. Feb. 13, 2021).

Citing “Unique Background” of Case, Montana Federal Court Rejected Transfer of Claims Regarding Public Lands in Wyoming

The federal district court for the District of Montana denied the U.S. Bureau of Land Management’s (BLM’s) request that the court dismiss or transfer claims challenging a resource management plan amendment for federal lands in Wyoming. The suit also involved a challenge to a resource management plan amendment for lands in Montana. All of the lands at issue in the case are located in the Powder River Basin. In 2018, the Montana federal court invalidated the previous resource management plans for the same areas, finding that the environmental reviews were inadequate. This suit involves the plaintiffs’ claims that the resource management plan amendments developed in response to the court’s previous orders failed to comply with those orders or with federal law. The court—which also rejected BLM’s motion to dismiss and sever or transfer the Wyoming-related claims in the earlier case—again found that venue was proper in the District of Montana because the case did not involve real property, the plaintiffs reside in the district, and a substantial part of the events giving rise to this case (including the court’s prior decisions) occurred in the district. The court also declined to exercise its discretion to sever and transfer the Wyoming RMP claims, finding that the plaintiffs’ “elevated interest in prevention of inconsistent judgments and judicial economy rooted in the unique background of this case outweigh the interest in having localized controversies decided at home.” Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 4:20-cv-00076 (D. Mont. Feb. 24, 2021).

Federal Court Allowed Challenge to FDA Approval of Cattle Drug to Proceed

The federal district court for the Northern District of California denied motions to dismiss a lawsuit challenging the Food and Drug Administration’s (FDA’s) approval of a drug intended to reduce releases of ammonia gas from the waste of cattle raised for beef. The plaintiffs’ claims include that FDA failed to consider the drug’s environmental impacts, including impacts from air emissions from concentrated animal feeding operations. The court rejected arguments that the plaintiffs did not have standing or that they failed to exhaust administrative remedies. Animal Legal Defense Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal. Feb. 23, 2021).

Federal Court Dismissed Case that Sought to Prevent Minnesota from Regulating Vehicle Greenhouse Gas Emissions

The federal district court for the District of Minnesota granted the State of Minnesota’s motion to dismiss a lawsuit seeking to block the state from conducting rulemaking to regulate greenhouse gas emissions from motor vehicles. The court concluded that sovereign immunity barred the plaintiff’s claims; that the plaintiff—a “corporation that advocates for the interests of retail motor vehicle dealerships in Minnesota”—had not alleged facts sufficient to establish standing; and that the claims were not ripe for judicial review. Minnesota Auto Dealers Association v. Minnesota, No. 21-cv-0053 (D. Minn. Feb. 17, 2021).

Arizona Federal Court Denied Motion to Add Documents to Record in Challenge to             Long-Term Plan for Glen Canyon Dam

The federal district court for the District of Arizona denied plaintiffs’ motion to complete the record in their challenge to the Glen Canyon Dam Long-Term Experimental Management Plan, a 20-year plan for releases from the dam that the plaintiffs alleged did not consider climate change impacts. The court found that the Department of the Interior properly excluded deliberative documents from the record. The court also rejected the plaintiffs’ contention that the Interior Department should have included articles on climate change impacts on future Colorado River basin water supplies that were referenced in two foundational studies of the Colorado River basin that were in the record. The court concluded that such underlying documents did not belong in the record and further found that the plaintiffs did not meet its burden of demonstrating that a Department of the Interior subordinate relied on the referenced materials. Save the Colorado v. U.S. Department of the Interior, No. CV-19-08285 (D. Ariz. Feb. 4, 2021).

Minnesota Supreme Court Said Challenge to Minneapolis Comprehensive Plan Could Proceed

The Minnesota Supreme Court reinstated claims that the City of Minneapolis’s adoption of a municipal comprehensive plan violated the Minnesota Environmental Rights Act (MERA). The court held that an administrative rule that exempted comprehensive plans from  Minnesota Environmental Policy Act review did not bar claims under MERA. The Supreme Court also found that the district court should not have dismissed the MERA claim because the complaint adequately alleged a causal link between adoption of the comprehensive plan and purported materially adverse environmental effects. The plaintiffs’ complaint alleged, among other things, that there were questions regarding whether the “upzoning” for higher-density development proposed in the comprehensive plan would result in a reduced carbon footprint. Minnesota by Smart Growth Minneapolis v. City of Minneapolis, No. A19-0999 (Minn. Feb. 10, 2021).

California Appellate Court Rejected Challenges to Environmental Review for Expanded Landfill Operations

The California Court of Appeal affirmed the denial of a petition challenging the County of Los Angeles’s approval of a master plan revision for continued and expanded operations at the Chiquita Canyon Landfill. The court found that the petitioner had not argued in the Superior Court that the environmental impact report failed to quantify or analyze existing landfill emissions, and so had forfeited that argument. The appellate court also found that substantial evidence supported the methodologies used for data on criteria air pollutants and odors, as well as the methodologies used to determine landfill gas capture efficiency rates and to quantify greenhouse gas emissions, which relied on modeled data. Val Verde Civic Association v. County of Los Angeles, No. B302885 (Cal. Ct. App. Feb. 10, 2021).

Delaware Chancery Court Ordered Company to Allow Inspection of Records Related to Clean Energy Claims

The Delaware Chancery Court ordered Bloom Energy Corporation to respond to a stockholder’s demand to inspect the company’s books and records, including documents relating to the company’s clean energy claims and the company’s carbon dioxide emissions. According to the court’s decision, the company manufactures solid-oxide fuel cells that provide an alternative to obtaining energy from the electrical grid, and the company’s primary product is the Bloom Energy Server, which the company promotes as supplying more efficient energy generation with lower greenhouse gas emissions than traditional fossil fuels. After a report published in 2019 concluded that the technology was neither profitable nor clean, the two plaintiffs submitted their demands for inspection. Although the court ruled for the company with respect to one of the plaintiff’s demands, due to failure to comply with statutory requirements for such demands, the court found that the other plaintiff had carried his burden of demonstrating a “proper purpose” for inspection by presenting a credible basis to suspect wrongdoing, including with respect to the company’s representations regarding its product’s environmental benefits. Jacob v. Bloom Energy Corp., No. 2020-0023-JRS (Del. Ch. Feb. 25, 2021).

NEW CASES, MOTIONS, AND OTHER NOTICES

Florida-Georgia Supreme Court Water Dispute Raised Issue of Climate Change’s Contribution to Decreased Water Flow

On February 22, 2021, the U.S. Supreme Court heard oral arguments in an original jurisdiction case filed by Florida against Georgia in which Florida seeks a decree apportioning the waters of the Apalachicola, Chattahoochee, and Flint River Basins to address harms Florida allegedly suffered—including damage to oyster fisheries—due to decreased flows in the Apalachicola River that Florida contends is caused by Georgia’s use of water. Georgia argues that Florida did not prove that Georgia’s water use caused the harm to the fisheries and that changing climatic conditions and Florida’s mismanagement of the fisheries played “a far greater role.” Florida v. Georgia, No. 22o142 (U.S.).

Challenges to Trump Administration Actions on Hold as New Administration Undertakes Reviews

A number of the cases we are tracking have been stayed or are being held in abeyance to allow the Biden-Harris administration time to review the agency actions being challenged. EPA, the U.S. Department of Energy, and other agencies are reviewing actions taken during the Trump administration pursuant to President Biden’s Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The following cases are among those affected by the new administration’s review of Trump administration policies:

• Energy Conservation: In Ninth Circuit cases challenging U.S. Department of Energy (DOE) procedures for adopting energy conservation standards for appliances, the parties filed a consent motion seeking to hold the cases in abeyance for 150 days while the agency reviews the rules pursuant to Executive Order 13990. DOE included the rules in the list of 13 rules it is reviewing pursuant to the executive order. California v. U.S. Department of Energy, No. 20-71068 (9th Cir. abeyance motion Feb. 26, 2021).
• Energy Conservation: The Seventh Circuit transferred a case challenging new product classes for residential clothes washers and consumer clothes dryers in the Department of Energy’s energy conservation program to the Second Circuit, where another challenge to the rule was pending. A challenge to another DOE rule—which adopted a revised definition for “showerhead” and added definitions for “body spray” and “safety shower showerhead”—remained pending in the Seventh Circuit. Petitioners moved for stays of both rules pending review. The response to the stay motion for the showerhead rule was due on March 8. Both rules are on DOE’s list of rules that it is reviewing pursuant to Executive Order 13990. Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1166 (7th Cir. Feb. 17, 2021); Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1167 (7th Cir. Feb. 17, 2021).
• Rail Transport of LNG: The Pipeline and Hazardous Materials Safety Administration and other federal respondents asked the D.C. Circuit to place challenges to July 2020 regulations for transporting liquefied natural gas (LNG) by rail in abeyance for six months. Sierra Club v. U.S. Department of Transportation, No. 20-1317 (D.C. Cir. motion for abeyance Feb. 24, 2021).
• Coastal Barrier Resources Act: The federal district court for the Southern District of New York stayed a case challenging a 2019 rule interpreting the Coastal Barrier Resources Act (CBRA) that the National Audubon Society alleged “vastly expands potential sand mining projects in delicate coastal barriers” protected by CBRA. The case was stayed for an initial 60 days pursuant to a stipulation and consent order. National Audubon Society v. de la Vega, No. 1:20-cv-05065 (S.D.N.Y. Feb. 23, 2021).
• Cost-Benefit Analysis in Clean Air Act Rulemaking: The D. C. Circuit granted EPA’s motion to hold in abeyance the cases challenging EPA’s rule on “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” The court directed the parties to file motions to govern future proceedings by June 23, 2021. New York v. EPA, No. 21-1026 (D.C. Cir. Feb. 23, 2021).
• New Source Emission Standards in Oil and Gas Sector: The D.C. Circuit granted EPA’s motions to hold in abeyance cases that challenged EPA’s amendments to emission standards for new, reconstructed, and modified sources in the oil and gas sector while EPA conducts its review pursuant to Executive Order 13990. There are two rules under review in two sets of cases. Both sets of cases are held in abeyance pending further order of the court. Environmental Defense Fund v. Wheeler, No. 20-1360 (D.C. Cir. Feb. 19, 2021); California v. Wheeler, No. 20-1357 (D.C. Cir. Feb. 12, 2021).
• Existing Source Emission Standards in Oil and Gas Sector: In a related lawsuit seeking to compel EPA to establish methane emissions guidelines for existing oil and natural gas sources, the federal district court for the District of Columbia denied pending motions to dismiss and for summary judgment without prejudice and directed the parties to file a joint status report by April 9 advising on how they wish to proceed. The Trump administration sought to dismiss the lawsuit after EPA withdrew methane standards for new and modified sources in August 2020—a rule now under review by the Biden-Harris administration. New York v. Nishida, No. 1:18-cv-00773 (D.D.C. Feb. 12, 2021).
• Vehicle Standards: In the lawsuits challenging the Trump administration’s greenhouse gas emission and fuel economy standards for passenger cars and light trucks (the Safer Affordable Fuel-Efficiency (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks), the federal respondents asked the D.C. Circuit to hold the cases in abeyance while the agencies evaluate the SAFE Rule pursuant to Executive Order 13990, which specifically targeted the SAFE Rule for review. Petitioners representing local and state governments and environmental and public health organizations opposed the federal respondents’ request for an indefinite abeyance. The state and local government petitioners argued that the “sheer magnitude of … accumulating harms, which include greenhouse gas emission increases greater than the total emissions of many States,” warranted judicial oversight to prevent delay or to ensure an opportunity for review should the challenged standards be left in place. The state and local government petitioners instead suggested a six-month extension of the deadline for the federal respondents’ brief and corresponding extensions for other briefs. The public interest organization petitioners supported this suggestion. The D.C. Circuit is already holding in abeyances the cases challenging EPA’s withdrawal of California’s waiver for greenhouse gas emission standards and zero emission vehicle mandates and the National Highway Traffic Safety Administration’s rule preempting state regulation of vehicle greenhouse gas emissions. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir. Feb. 19, 2021).
• Aircraft Standards: The D.C. Circuit granted EPA’s motion to hold cases challenging the greenhouse gas standards for aircraft in abeyance while EPA reviews the standards pursuant to Executive Order 13990. The D.C. Circuit directed that the cases be held in abeyance pending further order of the court. EPA must file status reports every 90 days. The Boeing Company and Aerospace Industries Association of America, Inc. moved to intervene to defend the standards. California v. EPA, No. 21-1018 (D.C. Cir. Feb. 17, 2021).
• Keystone XL Pipeline: In Executive Order 13990, President Biden also revoked the 2019 Presidential Permit for the Keystone XL pipeline. The federal district court for the District of Montana subsequently stayed two cases challenging the 2019 permit until April 5 and directed the parties to submit a status report before that date regarding whether the court should proceed with mootness briefing or continue the stay. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. Feb. 17, 2021); Rosebud Sioux Tribe v. Trump, No. 4:18-cv-118 (D. Mont. Feb. 3, 2021).
• Oil and Gas Leasing in Arctic National Wildlife Refuge: The federal district court for the District of Alaska granted federal defendants’ request for a stay of proceedings in the lawsuits challenging the approval of an oil and gas leasing program on the Coastal Plain of the Arctic National Wildlife Refuge. The parties must file status reports by April 12, 2021 advising the court about what further proceedings may be necessary. Gwich’in Steering Committee v. de la Vega, No. 3:20-cv-00204 (D. Alaska Feb. 12, 2021).
• National Environmental Policy Act: The federal district court for the Western District of Virginia denied the defendants’ request for a 60-day stay to allow the Biden-Harris administration time to review challenged amendments to the National Environmental Policy Act (NEPA) regulations. The court noted that briefing on summary judgment motions was nearly complete and found that adding delay to the court’s decision on the pending motions would not be appropriate. In the federal district court for the Northern District of California, however, the court stayed a case challenging the NEPA amendments for 60 days pursuant to a joint stipulation submitted by the parties. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va. Feb. 19, 2021); Alaska Community Action on Toxics v. Council on Environmental Quality, No. 3:20-cv-5199 (N.D. Cal. Feb. 12, 2021).
• “Waters of the United States”: The federal district court for the Northern District of California granted federal defendants’ motion for a 60-day stay and to continue deadlines in the case challenging the Trump administration’s rule defining “waters of the United States” under the Clean Water Act. States that had intervened to defend the rule opposed the stay and continuance of the deadlines. California v. Nishida, No. 3:20-cv-03005 (N.D. Cal. Feb. 10, 2021).
• Endangered Species Act Regulations: The federal district court for the Northern District of California ordered a 60-day stay in three cases challenging amendments to the Endangered Species Act regulations and vacated deadlines. The District of Hawai‘i granted a request for a 60-day stay in a separate challenge to the definition of “habitat” under the Endangered Species Act. Center for Biological Diversity v. de la Vega, No. 4:19-cv-05206 N.D. Cal. Feb. 16, 2021); Conservation Council for Hawai‘i v. de la Vega, No. 1:21-cv-00040 (D. Haw. Feb. 10, 2021).

 

EPA Asked D.C. Circuit to Vacate Rule Extending Implementation Timeline for Landfill Emission Guidelines

EPA filed a motion in the D.C. Circuit for voluntary vacatur and remand of the final rule extending implementation timelines for emission guidelines under Clean Air Act Section 111(d) for municipal solid waste landfills. EPA argued that it was appropriate for the court to grant the request due to the D.C. Circuit opinion in American Lung Association v. EPA that found the justifications for extending Section 111(d) implementation timelines to be inadequate. EPA also noted that it had evaluated the final rule pursuant to President Biden’s Executive Order 13990 and that it planned to issue a federal plan by May 2021 for any state without an approved state plan implementing the landfill emission guidelines. In addition to arguing that vacatur was an appropriate course of action because the D.C. Circuit had already rejected arguments similar to those EPA made in support of the landfill rule, EPA also contended that vacatur was more practical than remand without vacatur and that vacatur would not have disruptive consequences such as deleterious effects on public health and the environment. Environmental Defense Fund v. EPA, No. 19-1222 (D.C. Cir. Mar. 4, 2021).

Annapolis Sued Fossil Fuel Companies for Climate Change Damages

The City of Annapolis filed a lawsuit in Maryland Circuit Court seeking damages and other relief from fossil fuel companies that the City alleged “engaged in a coordinated, multi-front effort” to conceal and discredit information about climate change and their products’ contribution to climate change. The City alleged that it had suffered and would continue to suffer severe injuries due to climate change, including inundation and loss of City property, loss of tax revenue, damage to infrastructure, and increased costs to prepare the City for the impacts of climate change. The City asserted claims of public nuisance, private nuisance, strict liability for failure to warn, negligent failure to warn, trespass, and violations of the Maryland Consumer Protection Act. The complaint alleged that the City sought “to ensure that the parties who have profited from externalizing the consequences and costs of dealing with global warming and its physical, environmental, social, and economic consequences bear the costs of those impacts on Annapolis, rather than the City, taxpayers, residents, or broader segments of the public.” The relief sought includes compensatory damages; equitable relief, including abatement of the nuisances; punitive damages; disgorgement of profits; and attorneys’ fees. City of Annapolis v. BP p.l.c., No. C-02-CV-21-000250 (Md. Cir. Ct., filed Feb. 22, 2021).

Recent developments in other cases seeking to hold fossil fuel companies’ liable for their alleged contributions to climate change include the following:

• Defendants filed their opposition to Delaware’s motion to remand. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. Mar. 5, 2021).
• In Oakland and San Francisco’s cases, the defendants filed their oppositions to the cities’ renewed motion to remand and their motion for leave to amend their complaints to remove federal claims. In their opposition to remand, the defendants contended that the action was removable under the Outer Continental Shelf Lands Act and the federal-officer removal statute and also because the plaintiffs’ claims arose on federal enclaves and because the claims necessarily raised disputed and substantial freedom of speech issues. In response to the motion to amend, the defendants argued that it was unnecessary for the plaintiffs to amend their complaints at this time, and that “one is left to wonder” whether the plaintiffs were seeking to derail Supreme Court review of one of the questions presented in the defendants’ January petition for writ of certiorari: whether a plaintiff is barred from challenging removal on appeal after curing any jurisdictional defect (in this case, by adding a federal claim after the district court denied remand) and litigating the case to final judgment. In the Supreme Court, the cities’ response to the certiorari petition is due on May 10, 2021. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. Feb. 25, 2021); No. 20-1089 (U.S.).
• In the City of Hoboken’s case, briefing was completed on the City’s motion to remand. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Feb. 26, 2021).

 

Parties Briefed Scope of Corps of Engineers’ NEPA Review After First Circuit Paused Work on Transmission Line

After the First Circuit Court of Appeals temporarily enjoined commencement of construction for a segment of a power transmission line project in Maine, the parties completed briefing on the plaintiffs’ appeal of a district court’s denial of their motion for a preliminary injunction. The plaintiffs—who challenged the Clean Water Act Section 404 permit granted by the U.S. Army Corps of Engineers—argued that the scope of the Corps’ NEPA analysis was “overly narrow,” leading the Corps to give inadequate attention to many of the transmission line’s impacts, including greenhouse gas emissions. The federal defendants argued that the Corps’ jurisdiction was narrow and touched only construction activities related to wetlands and vernal pools. The defendants contended that the Corps did not have sufficient control over the pipeline to “federalize” the project and that it therefore properly limited the scope of its NEPA review. Sierra Club v. U.S. Army Corps of Engineers, No. 20-2195 (1st Cir. Jan. 21, 2021).

Nonprofit Group Charged that Ozone NAAQS Challenge Was “Backdoor” Effort to Restrict Greenhouse Gas Emissions

The nonprofit Energy Policy Advocates filed an amicus brief in the D.C. Circuit Court of Appeals in support of EPA’s determination to retain the existing national ambient air quality standards (NAAQS) for ozone. Energy Policy Advocates stated in its brief that it had obtained public records that showed that the petitioners and EPA sought to set in motion a coordinated “backdoor” effort to vacate the Trump EPA’s determination and adopt a secondary ozone NAAQS “which transmogrifies the NAAQS program to regulate non-criteria pollutant CO2/GHGs, after activists were frustrated in their pursuits through proper channels.” Energy Policy Advocates also contended that the records it obtained showed an alternative motive for challenging the ozone NAAQS: “to assist private plaintiffs against private parties in climate ‘public nuisance’ litigation by obtaining a declaration, effectively, that the predominant ‘nuisance’ claims are not in fact displaced by EPA regulatory authority under American Electric Power v. Connecticut.” New York v. EPA, No. 21-2028 (D.C. Cir. Feb. 22, 2021).

Challenges to Small Refinery Exemptions from Renewable Fuel Standard Filed in D.C. Circuit and Tenth Circuit

The D.C. Circuit Court of Appeals granted motions to hold in abeyance a case challenging the granting of small refinery exemptions from Renewable Fuel Standard requirements. EPA granted the exemptions on January 19, 2021. The case will be held in abeyance pending the Supreme Court’s disposition of HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association or a relevant determination regarding jurisdiction or venue in a related case filed by the same petitioner in the Tenth Circuit seeking the same relief. The petitioner filed the Tenth Circuit petition for review after learning that the exemptions were issued for refineries in the Tenth Circuit and stated its intention to dismiss the D.C. Circuit petition once the Tenth Circuit addresses any jurisdictional challenges. On March 5, the Tenth Circuit denied the petitioner’s motion to stay EPA’s action and granted EPA’s motion to hold the case in abeyance. Renewable Fuels Association v. EPA, No. 21-1032 (D.C. Cir. Feb. 22, 2021); Renewable Fuels Association v. EPA, No. 21-9518 (10th Cir., filed Feb. 8, 2021).

States Challenged Rollback of Penalty Increase for Fuel Economy Violations

New York and 14 other states filed a petition seeking review of the National Highway Traffic Safety Administration’s final rule that reversed an inflation adjustment to penalties for violations of fuel economy standards. The final rule was published in the January 14, 2021 issue of the Federal Register. Environmental groups filed a challenge to the rule in January. New York v. National Highway Traffic Safety Administration, No. 21-339 (2d Cir., filed Feb. 16, 2021).

Oil and Gas Company Asked Court to Order BLM to Approve Drilling Permits for North Dakota Leases

An oil and gas exploration and production company operating oil and gas leases in North Dakota filed a lawsuit in the federal district court for the District of North Dakota to compel the U.S. Bureau of Land Management (BLM) to act on applications for permit to drill (APDs) submitted in 2020. The company alleged that BLM would have approved the APDs but for Secretarial Order 3395 signed by the Acting Secretary of the Interior on January 20, 2021, which withdrew authority from BLM to approve the APDs and placed the authority in the hands of new presidential appointees. The company asserted that by failing to approve the APDs, the defendants had failed to meet non-discretionary obligations under the Mineral Leasing Act. Continental Resources, Inc. v. de la Vega, No. 1:21-cv-00034 (D.N.D., filed Feb. 23, 2021).

Lawsuit Alleged Failure to Update Stock Assessments for Marine Mammals to Reflect Climate Change Impacts and Other New Information

Two organizations filed a lawsuit in the federal district court for the Northern District of California asserting that the U.S. Fish and Wildlife Service had failed to comply with its non-discretionary obligation to issue updated stock assessment reports under the Marine Mammal Protection Act. The plaintiffs alleged that despite the MMPA’s requirement that the stock assessments be updated every year or every three years, depending on a species’ vulnerability, the stock assessments for some species had not been updated for more than a decade even though significant new information—including, for example, the depletion of sea ice on which polar bears and walruses depend and the impacts on sea otters from the die-off of kelp stemming from climate change—had become available. Center for Biological Diversity v. de la Vega, No. 3:21-cv-1182 (N.D. Cal., filed Feb. 18, 2021).

Conservation Groups Challenged Environmental Review for Midwest Transmission Line

Four conservation organizations filed a lawsuit in the federal district court for the Western District of Wisconsin challenging a 101-mile high-voltage transmission line running from Iowa to a substation in Wisconsin. The plaintiffs contended that the environmental impact statement approved by the Rural Utilities Service did not comply with the National Environmental Policy Act, including because it “did not adequately consider greenhouse gas emissions and potential climate impacts from the project and the fossil fuel-generated electricity that it would carry.” The plaintiffs also asserted that the transmission line’s approval violated the National Wildlife Refuge System Improvement Act of 1997. National Wildlife Refuge Association v. Rural Utilities Service, No. 3:21-cv-00096 (W.D. Wis., filed Feb. 10, 2021).

Lawsuit Alleged Failure to Review Impacts of Oil and Gas Activities in California

Center for Biological Diversity (CBD) filed a lawsuit in California Superior Court alleging that the Geologic Energy Management Division of the California Department of Conservation (CalGEM) issued permits for oil and gas drilling and other oil and gas activities without complying with the California Environmental Quality Act. CBD contended that CalGEM engaged in an “unlawful pattern practice” of approving such activities by issuing permits and approvals without any environmental review, in reliance on inapplicable exemptions, or based on inadequate environmental reviews conducted by local governments. CBD alleged that the “continual addition of new oil and gas activity” resulted in significant and well-documented environmental impacts, including significant amounts of greenhouse gas emissions associated with extraction, refining, combustion, and transportation. Center for Biological Diversity v. California Geological Energy Management Division, No. __ (Cal. Super. Ct., filed Feb. 24, 2021).

WildEarth Guardians Filed Lawsuit to Compel Agency Decision on Refinery Permits

WildEarth Guardians filed a lawsuit in Colorado District Court seeking to compel Colorado agencies to act on two Title V permit renewal applications for a refinery that is allegedly the largest non-coal source of greenhouse gas emissions in Colorado. The applications were submitted in September 2016 and October 2010. In its announcement of the suit, WildEarth Guardians called the refinery an “environmental injustice” and indicated that WildEarth Guardians and others had previously called for the permits to be denied and the refinery shut down due to chronic air quality violations. WildEarth Guardians v. Colorado Department of Public Health & Environment, No. 2021cv030213 (Colo. Dist. Ct., filed Feb. 16, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

European Court of Human Rights Reaffirmed Its Decision to Fast-Track Climate Case Against 33 Governments

Six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries in September 2020. The complaint alleges that the governments have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action.

The European Court of Human Rights accepted and fast-tracked the case on November 30, 2020. The Court communicated the case to the defendant countries and initially required them to respond by the end of February 2021. According to the Global Legal Action Network, who are supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated.

On February 4, 2021, the Court rejected a motion by the defendant governments asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case, not on the merits. The Court sent a letter to the parties rejecting these motions and gave the defendants until May 27, 2021 to submit a defense on both admissibility and the merits of the case. Youth for Climate Justice v. Austria, et al. (European Court of Human Rights).

Haitian Children Petitioned the Inter-American Commission on Human Rights to Redress Human Rights Violations from Trash Disposal

On February 4, 2021, Haitian children petitioned the Inter-American Commission on Human Rights to redress human rights violations stemming from waste disposal in their residential district. The petition lays out a factual background of toxic trash disposal from Port-Au-Prince in the residential district of Cité Soleil, which causes short- and long-term health harms most acutely affecting children. The petition includes a discussion of climate change’s exacerbation of the harms to children through environmental displacement and exacerbation of waterborne diseases. Petitioners allege violations of the American Convention’s Rights of the Child (Article 19), the Right to Dignity (Article 11), the Right to Live in a Healthy Environment (Articles 4, 26), and the Right to Judicial Protection (Article 25). The Commission is expected to first decide whether to assert jurisdiction. Petition to the Inter-American Commission on Human Rights Seeking to Redress Violations of the Rights of Children in Cité Soleil, Haiti (Inter-American Commission on Human Rights).