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 firstname.lastname@example.org.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 147.
Louisiana Federal Court Blocked Biden Administration “Pause” on New Oil and Gas Leases
The federal district court for the Western District of Louisiana issued a nationwide preliminary injunction barring the Biden administration from implementing a “Pause” on new oil and natural gas leases on public lands or in offshore waters. President Biden ordered the pause in Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” to allow completion of a “comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior’s broad stewardship responsibilities …, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.” Although the states challenging the pause based their request for a preliminary injunction on federal agencies’ violations of the Administrative Procedure Act, the court found as an initial matter that the states had made a showing that President Biden had exceeded his powers when he ordered the “Pause” because the Outer Continental Shelf Lands Act (OCSLA) does not grant specific authority for the President to pause offshore oil and gas leases. The court then proceeded to conclude that the states had alleged standing, with allegations of particularized and concrete injuries based on loss of proceeds from new leases, as well as from loss of jobs and economic damages. The court found that those alleged injuries were fairly traceable to the pause and that a favorable ruling would redress the injuries. The court also found that the states could establish standing as a result of “special solicitude.” In addition, the court found that the states’ claims under the Administrative Procedure Act (APA) were within the “zone of interests,” as were their citizen suit claim under OCSLA and their ultra vires claim. The court rejected the government’s contention that the “Pause” and related actions—the cancellation and stoppage of offshore lease sales and the cancellation or postponement of “eligible lands” under the Mineral Leasing Act (MLA)—were not final agency actions reviewable under the APA. The court cited cases finding actions that were not permanent to be final agency actions. In addition, the court rejected the contention that these actions were committed to agency discretion and therefore not reviewable; the court held that the pausing of a lease sale was not within the discretion of agencies under either the OCSLA or the MLA. With respect to the criteria for a preliminary injunction, the court found that the states had a substantial likelihood of success on the merits on proving that the federal agencies implemented the “Pause” as directed by the executive order both to sales under the MLA and the OCSLA. The court concluded that the states had a substantial likelihood of success on the merits of their claims that the federal agencies’ actions were contrary to law (the OCSLA and MLA), that their actions were arbitrary and capricious, that the agencies failed to provide notice and an opportunity to comment, and that they unreasonably withheld or unreasonably delayed action they were required to take. The court also found that the states demonstrated a substantial threat of irreparable injury in the form of “very substantial damages” from lost ground rents and bonuses that would be difficult or impossible to recover due to sovereign immunity. In addition, the court found that equity and the public interest weighed in favor of the plaintiff states. Having found that the factors for a preliminary injunction were satisfied, the court also found that the injunction should be nationwide in scope due to the need for uniformity. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La. June 15, 2021).
After the Louisiana federal court issued the nationwide injunction, the federal district court for the District of Wyoming issued a sua sponte order in a separate case challenging the pause on new onshore leasing. The order directed the parties to submit briefs on whether the court should stay proceedings in light of the Louisiana court’s order. The parties all opposed staying the proceedings, though the trade group petitioners said the court could temporarily defer ruling on their motion for a preliminary injunction. On June 30, the Wyoming federal court denied the motions without prejudice, finding that they were “materially moot.” Western Energy Alliance v. Biden, No. 0:21-cv-00013 (D. Wyo. June 16, 2021).
DECISIONS & SETTLEMENTS
Supreme Court Declined to Review Ninth Circuit Reversal of Denial of Remand in Oakland and San Francisco Climate Cases
On June 14, 2021, the U.S. Supreme Court denied fossil fuel companies’ petition for writ of certiorari seeking review of the Ninth Circuit’s decision reversing 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 had 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’ renewed motion for remand is currently pending in the district court, with the cities arguing against the companies’ remaining grounds for removal: federal-officer removal, Outer Continental Shelf Lands Act, enclave jurisdiction, and bankruptcy removal. The cities also have filed a motion to amend their complaints to withdraw federal common law public nuisance claims that they added after the district court denied remand. On June 23, 2021, Chevron Corporation filed notice in the district court of its voluntary dismissal of third-party complaints against the energy company Equinor ASA (formerly Statoil ASA). Chevron filed the third-party complaint in December 2017 against the company—of which the Norwegian State is majority stakeholder—for indemnity and contribution. The third-party complaint asserted that while the plaintiffs’ claims were meritless, Statoil, “as well as potentially the many other sovereign governments that use and promote fossil fuels,” must be joined as third-party defendants. Chevron filed similar notices of withdrawal in other cases brought by California localities. Chevron Corp. v. City of Oakland, No. 20-1089 (U.S. June 14, 2021).
Supreme Court Denied Montana and Wyoming’s Challenge to Washington Actions that Barred Coal Exports
The U.S. Supreme Court denied Montana and Wyoming’s motion for leave to file a bill of complaint that asserted that the State of Washington denied access to its ports for shipments of Montana and Wyoming’s coal to Asia in violation of the dormant Commerce Clause and the Foreign Commerce Clause. Justices Thomas and Alito would have granted the motion. Montana v. Washington, No. 22O152 (U.S. June 28, 2021).
Supreme Court Upheld Renewable Fuel Exemptions for Small Refineries
In a 6-3 decision, the U.S. Supreme Court reversed the Tenth Circuit and upheld “extension[s]” of exemptions from renewal fuel program requirements for three small refineries. EPA granted the extensions after a “lull” during which the refineries were not subject to exemptions. The Clean Air Act provision at issue authorizes small refineries to petition EPA “for an extension of the exemption … for the reason of disproportionate economic hardship.” The Court held that the provision used “extension” in its “temporal sense,” but that the statute did not impose a “continuity requirement” and instead allowed small refineries to apply for hardship extensions “at any time.” The Court therefore held that renewable fuel producers who challenged EPA’s approvals of the refineries’ extension requests had not shown that EPA acted in excess of its statutory authority. Justice Barrett dissented, joined by Justices Sotomayor and Kagan. In their view, the majority’s interpretation “caters to an outlier meaning of ‘extend’ and clashes with statutory structure.” HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, No. 20-472 (U.S. June 25, 2021).
D.C. Circuit Vacated Approval for Natural Gas Pipeline in St. Louis Due to FERC’s Failure to Address Applicant’s Self-Dealing
The D.C. Circuit vacated Federal Energy Regulatory Commission (FERC) orders authorizing a natural gas pipeline in the St. Louis area. The court concluded that FERC acted arbitrarily and capriciously because FERC “declined to engage with” Environmental Defense Fund’s arguments and underlying evidence regarding self-dealing by the applicant and the affiliate with which the applicant entered into a “precedent agreement” for pipeline capacity. The D.C. Circuit further found that in determining that the pipeline was required by public convenience and necessity, FERC engaged in only a “cursory balancing” of public benefits and adverse impacts and that this balancing was therefore arbitrary and capricious. The D.C. Circuit did not address arguments regarding the adequacy of FERC’s environmental review of the project, including FERC’s treatment of climate change, because the court found that the individual petitioner who asserted National Environmental Policy Act claims did not have standing. The court said the petitioner’s “alleged aesthetic injuries reflect nothing more than generalized grievances,” that her allegations regarding traffic hazards did not meet her causation burden, and that alleged construction-related injuries were not redressable because construction was complete. An analysis of the case by Sabin Center Senior Fellow Jennifer Danis is available on the Climate Law Blog. Environmental Defense Fund v. Federal Energy Regulatory Commission, No. 20-1016 (D.C. Cir. June 22, 2021).
BLM Dropped Appeal of Adverse Decision on Environmental Review for Utah Coal Mine Expansion
The Tenth Circuit Court of Appeals granted the federal government’s unopposed motion for voluntary dismissal of its appeal of a March 2021 District of Utah decision that found that the U.S. Bureau of Land Management failed to take a hard look at the indirect and cumulative impacts of greenhouse gases associated with a coal lease that authorized expansion of a coal mine. Utah Physicians for a Healthy Environment v. U.S. Bureau of Land Management, No. 21-4069 (10th Cir. June 21, 2021).
After Developers Terminated Methanol Terminal Project, Ninth Circuit Granted Motions to Dismiss Appeals
On June 16, 2021, the Ninth Circuit Court of Appeals granted a joint motion to dismiss appeals of a November 2020 order vacating U.S. Army Corps of Engineers permits for construction of a methanol refinery and export terminal at the Port of Kalama in Washington State. The federal defendants-appellants and intervenor defendant-appellant Port of Kalama filed the joint motion several days after the project’s developer notified the Port that it would terminate its lease. Columbia Riverkeeper v. U.S. Army Corps of Engineers, No. 21-35053, 21-35054 (9th Cir. June 16, 2021).
Federal Defendants Abandoned Appeal of Decision Requiring Additional Alternatives Analysis
On June 11, 2021, the Tenth Circuit Court of Appeals granted federal defendants-appellants’ motion to voluntarily dismiss their appeal of a December 2020 District of Utah decision remanding a case challenging the issuance of oil and gas leases in the Uinta Basin. The district court found the analysis of greenhouse gas and climate change impacts to be adequate but remanded for consideration of alternatives that did not involve leasing all nominated parcels. The conservation groups’ appeal of the district court decision is still pending, with the opening brief due on July 12. The Tenth Circuit directed the conservation groups “to address with specificity … whether this court has jurisdiction over their appeal.” Rocky Mountain Wild v. Bernhardt, Nos. 21-4019, 21-4020 (10th Cir. June 11, 2021).
Federal Court Allowed NEPA Claim to Proceed Against USDA Hog Slaughter Rule
The federal district court for the Western District of New York denied a motion to dismiss a lawsuit challenging a U.S. Department of Agriculture (USDA) final rule establishing an optional new inspection system for hog slaughter establishments. The court concluded that the plaintiffs had sufficiently established standing at this stage of the litigation, including for their National Environmental Policy Act (NEPA) claim, which asserted that USDA should not have relied on a categorical exclusion, including because “extraordinary circumstances” required preparation of an environmental assessment or environmental impact statement. The alleged extraordinary circumstances related to the potential adverse environmental effects, including “supply-level” effects such as the risk of climate change due to increases in emissions of the greenhouse gases methane and nitrous oxide at concentrated animal feeding operations. Farm Sanctuary v. U.S. Department of Agriculture, No. 6:19-cv-06910 (W.D.N.Y. June 28, 2021).
Federal Court Kept Forest Plan in Place but Remanded for More Consideration of Grizzly Bear Impacts and Other Issues
The federal district court for the District of Montana largely rejected challenges to federal approvals of revisions to the Flathead National Forest Land Management Plan in northwestern Montana but remanded without vacatur for additional analysis of certain issues under the Endangered Species Act. Those issues included the revised plan’s impact on the national grizzly bear population. The opinion did not specifically address the plaintiffs’ allegations that the federal defendants failed to account for climate change impacts on grizzly bears. WildEarth Guardians v. Steele, No. 9:19-cv-00056 (D. Mont. June 24, 2021).
Virginia Federal Court Said Challenge to NEPA Regulations Was Not Justiciable
The federal district court for the Western District of Virginia dismissed without prejudice a lawsuit brought by environmental groups to challenge the Council on Environmental Quality’s (CEQ’s) 2020 amendments to the National Environmental Policy Act (NEPA) regulations. The court concluded that the groups’ claims were not justiciable both because the claims were not ripe and because the groups did not have standing. With respect to ripeness, the court found that “[t]he potential applications and outcomes of the regulatory changes adopted are simply too attenuated and speculative to allow for a full understanding and consideration of how they may impact the plaintiffs.” The court noted that each federal agency would have to adopt its own NEPA procedures before CEQ’s regulatory amendments could be applied to any particular federal action, and further noted that following the change in administrations, CEQ was “actively reconsidering” the 2020 amendments and had directed agencies not to use resources to develop their own procedures. With respect to standing, the court found that the environmental groups’ alleged environmental, procedural, and information injuries were too speculative to satisfy the constitutional injury-in-fact requirement. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va. June 21, 2021).
Utah Federal Court Said Suspension of Oil and Gas Leases Was Not Subject to NEPA
The federal district court for the District of Utah dismissed without prejudice conservation groups’ lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) suspension of 82 oil and gas leases issued in 2018. BLM suspended the leases after a federal court in Washington, D.C. ruled in 2019 that BLM had failed to adequately assess the potential impacts of greenhouse gas emissions for certain oil and gas leases in Wyoming. The District of Utah held that the lease suspensions merely maintained the status quo and therefore were not major federal actions subject to NEPA; the conservation groups therefore lacked standing. The court also concluded that the groups’ argument that BLM should have canceled the leases instead of suspending them was not relevant to its cause of action alleging that the lease suspensions violated NEPA. Living Rivers v. Hoffman, No. 4:19-cv-00057 (D. Utah June 21, 2021).
Hawai‘i Supreme Court Upheld Denial of Request to Re-Open Order Approving Wind Power Purchase Agreement
The Hawai‘i Supreme Court held that the state’s Public Utilities Commission (PUC) did not abuse its discretion when it declined to re-open a 2014 order that approved a Purchase Power Agreement for wind energy. One of the allegations made by the nonprofit organization that sought to re-open the order was that the 2014 order did not analyze the project’s impact on greenhouse gas emissions as required by the public utilities law. The court found that the PUC properly declined to re-open the order to address this issue since the organization could have raised the issue earlier since the absence of an analysis of greenhouse gas emissions was “readily apparent.” In re Hawaiian Electric Co., No. SCOT-20-0000309 (Haw. June 29, 2021).
Massachusetts High Court Upheld Transmission Line Approval
The Massachusetts Supreme Judicial Court affirmed the Energy Facilities Siting Board’s approval of a proposal for a new underground electrical transmission line running between substations in the Towns of Sudbury and Hudson. The court noted that the Board was required to balance three objectives—reliability, environmental impact, and cost—by maximizing reliability and minimizing environmental impact and cost; that a proposal was not required to “be the best in each of the three categories”; and that the factors were to be “considered in combination with each other,” with no single factor prioritized over another. In this case, the court found no basis for disturbing the Board’s determinations, given the Board’s “careful and reasoned decision.” Citing the importance of a reliable electrical system, the court rejected arguments by the Town of Sudbury that the Board’s determination regarding the need for additional energy resources was too conservative. The court also rejected the Town’s argument that the project was not consistent with current health, environmental protection, and resource use and development policies in Massachusetts. The court noted that the Board had determined that the project was consistent with the Commonwealth’s environmental protection policies, including the Global Warming Solutions Act of 2008, because the project would generate minimal greenhouse gases and have no adverse climate change impacts and would facilitate integration of renewable energy resources by increasing the transmission system’s reliability. Although the Town argued that a non-transmission alternative solution would have been more consistent with more recent policies, including climate and environmental policies, the court found that the Town did not provide a basis for reversing the Board’s assessment. Town of Sudbury v. Energy Facilities Siting Board, No. SJC-12997 (Mass. June 25, 2021).
Washington Appellate Court Sent CAFO Permits Back to Agency for Consideration of Climate Impacts and Other Issues
The Washington Court of Appeals held that the Pollution Control Hearing Board erred when it approved the Washington Department of Ecology’s general permits for concentrated animal feeding operations (CAFOs). Among the inadequacies found by the court was Ecology’s failure to consider climate change in drafting the permits. The court agreed with environmental groups that Ecology had a responsibility under the State Environmental Policy Act (SEPA) to consider climate change impacts “to the extent that it must interpret its rules and statutes consistently with SEPA’s mandates.” The approval of the permit was therefore contrary to law because climate change had to be considered “to some extent” in order for Ecology to act consistently with implementing regulations under the Clean Water Act and the Water Pollution Control Act. Washington State Dairy Federation v. Washington Department of Ecology, No. 52952-1-II (Wash. Ct. App. June 29, 2021).
California Appellate Court Said Substantial Evidence Supported Setback Requirement for Coastal Residence
The California Court of Appeal upheld conditions imposed by the California Coastal Commission on the construction of a single-family residence on a bluff adjacent to the Pacific Ocean in the City of Encinitas. The Commission required the home to be set back 79 feet from the bluff edge, required the elimination of a basement, and provided that the homeowners could not build any bluff or shoreline armoring device to protect the home. Regarding the setback, the Court of Appeal noted that the court had “explicitly resolved the same setback question” in an earlier case, Lindstrom v. California Coastal Commission, and the Court of Appeal was not persuaded by the homeowners’ arguments that it should revisit its determination in Lindstrom. The Court of Appeal further found that substantial evidence supported the imposition of the 79-foot setback requirement. The court said the Commission’s staff “used well-accepted scientific methodology” and that the Commission “provided ample explanation” for the conclusion that a higher projected level of sea-level rise was more appropriate than the level for which homeowners’ consultant advocated. The Court of Appeal noted that the Commission staff used more recent sea level rise data and recommendations, which the homeowners’ consultant acknowledged provided current sea level rise estimates. Regarding the basement, the Court of Appeal rejected the homeowners’ contention that the City’s requirement that new construction be designed and constructed for future removal applied only to construction within 40 feet of the bluff’s edge; the court further found that substantial evidence supported the finding that a basement could not be safely removed. Regarding the bar on any armoring device to protect the home, the Court of Appeal agreed with the Commission that the trial court’s invalidation of the condition should be reversed because the homeowners had abandoned their challenge to the condition on appeal. Martin v. California Coastal Commission, No. D076956 (Cal. Ct. App. June 23, 2021).
Minnesota Court of Appeals Upheld State Approvals for Enbridge Crude Oil Replacement Pipeline
The Minnesota Court of Appeals upheld the Minnesota Public Utilities Commission’s determination that a revised final environmental impact statement (EIS) for the Line 3 replacement crude oil pipeline was adequate, as well as the Commission’s decisions to issue a certificate of need and a routing permit for the project. The court concluded that it must defer to the Commission’s determination that Enbridge Energy, Limited Partnership demonstrated need for a replacement pipeline because the Commission’s decision was “adequately explained and reasonable, based on the record.” It noted that the Commission “balanced a plethora of factors and criteria … against the backdrop of an existing, deteriorating pipeline” and “based upon a public record developed over multiple years with extraordinary public participation.” Regarding the Commission’s consideration of greenhouse gas emissions and climate change as part of its assessment of the project’s relationship to overall state energy needs, the court rejected the contention that it was arbitrary and capricious not to attach a dollar figure to greenhouse gas emissions from the project. The court found that the Commission adequately explained its rationale for rejecting the dollar figure adopted by the administrative law judge. The court also said it was not arbitrary and capricious for the Commission to reason that the replacement project was not expected to increase crude oil demand. The court also found that the Commission addressed the court’s earlier concern that the EIS had not adequately addressed the impact of an oil spill on Lake Superior and its watershed. In addition, the court found that the selection of a pipeline route was reasonable and “based upon respect for tribal sovereignty, while minimizing environmental impacts.” One judge dissented, writing that the certificate of need was unsupported by substantial evidence and based on erroneous interpretations of the governing statute. He agreed with relators that the Commission acted arbitrarily and capriciously by failing to consider the project’s lifecycle greenhouse gas emissions. In re Enbridge Energy, LP, Nos. A20-1071, A20-1072, A20-1074, A20-1075, A20-1077 (Minn. Ct. App. June 14, 2021).
Massachusetts Court Declined to Dismiss Massachusetts Investor and Consumer Protection Action Against Exxon
In two decisions, a Massachusetts Superior Court denied Exxon Mobil Corporation’s (Exxon’s) motions to dismiss an action brought by the Massachusetts Attorney General asserting that Exxon systematically and intentionally misled investors and consumers about climate change. In the first decision, the court declined to dismiss the action on personal jurisdiction grounds or for failure to state a claim. With respect to personal jurisdiction, the court found that the Commonwealth sufficiently alleged that its investor deception claim arose from Exxon’s contacts with Massachusetts. Regarding the consumer deception claims, the court found that the claims arose from Exxon’s advertisements through its Massachusetts franchisees, and that the court therefore could assert personal jurisdiction over Exxon based on the Supreme Judicial Court’s previous determination that Exxon’s franchise network of retail service stations satisfied the “transacting any business” prong of the Massachusetts personal jurisdiction statute. The court also found that the exercise of jurisdiction over Exxon satisfied the Massachusetts long-arm statute and due process requirements. In rejecting Exxon’s arguments that Massachusetts failed to state a claim, the court found that Massachusetts’s allegations regarding statements to investors that climate change risks did not pose a meaningful threat were sufficient to survive a motion to dismiss. The court rejected Exxon’s characterization of the allegations as based on failures to disclose information readily available to the public. The court also found that the allegations plausibly alleged that Exxon deliberatively misrepresented and omitted information about the risks of climate change and that Exxon was engaged in trade or commerce when it made the allegedly deceptive statements. The court also found that the Commonwealth’s deceptive advertising claims did not have to be based on allegations that Exxon’s representations about particular fuel products were false, only that the representations were misleading. In addition, the court found that it could not conclude at this stage of the litigation that Exxon’s representations would not mislead a “reasonable consumer”; the court also was not persuaded by Exxon’s argument that the claims involved a “pure omission” not subject to liability. Regarding the Commonwealth’s “greenwashing” claims, the court concluded that it would not be appropriate to determine at the motion to dismiss stage whether the alleged misrepresentations were “inactionable puffery.” The court also declined to rule at this stage on whether any of the allegedly misleading statements to investors and customers constituted speech protected by the First Amendment.
In the second decision, the court denied Exxon’s special motion to dismiss under the Massachusetts anti-SLAPP (Strategic Litigation Against Public Participation) statute. The court found that Exxon failed to meet the threshold burden of showing that the Commonwealth claims were based on “petitioning activity” protected by the anti-SLAPP law. The court was not persuaded by Exxon’s contentions that its statements to investors were issued in a manner likely to reach or influence regulators and members of the public, and that its allegedly deceptive statements about its products constituted advocacy of climate policy choices and attempts to enlist public participation in policy debate. The court found that Exxon did not show that it made the statements “solely, or even primarily, to influence, inform, or reach any governmental body, directly or indirectly. Instead, the statements appear to be directed at influencing investors to retain or purchase Exxon’s securities or inducing consumers to purchase Exxon’s products and thereby increase its profits.” Commonwealth v. Exxon Mobil Corp., No. 1984CV03333-BLS1 (Mass. Super. Ct. June 22, 2021).
NEW CASES, MOTIONS, AND OTHER FILINGS
North Dakota and Second Coal Company Asked for Review of D.C. Circuit Decision on Affordable Clean Energy Rule
On June 23, 2021, two additional petitions for writ of certiorari were filed seeking Supreme Court review of the D.C. Circuit’s January 2021 decision vacating the Trump administration’s Affordable Clean Energy (ACE) Rule for carbon dioxide emissions from existing coal-fired power plants. The ACE Rule replaced the Obama administration’s Clean Power Plan. The June certiorari petitions were filed by a coal mining company and by North Dakota. Both North Dakota and the coal mining company asked the Court to review the question of the scope of EPA’s regulatory authority under Section 111(d) of the Clean Air Act. The coal mining company also sought review of the question of EPA’s authority to regulate stationary sources such as power plants under Section 111(d) if hazardous pollutant emissions from such sources are already regulated under Section 112. Nineteen other states and another coal company previously filed petitions seeking review of the D.C. Circuit’s decision, which held that the ACE Rule was grounded in an interpretation of the statute that erroneously limited EPA’s authority. EPA’s response to the petitions is due on August 5, 2021. Westmoreland Mining Holdings LLC v. EPA, No. 20-1778 (U.S. June 23, 2021); North Dakota v. EPA, No. 20-1780 (U.S. June 23, 2021).
State and Local Government Climate Cases Returned to Federal Courts of Appeal; Remand Motions Filed in Anne Arundel County and New York City Cases
Following the Supreme Court’s decision holding that federal courts of appeal have broader jurisdiction to review remand orders when one ground for removal is the federal-officer removal statute, cases brought by Baltimore, Rhode Island, and local governments in California and Colorado have returned to the First, Fourth, Ninth, and Tenth Circuit Courts of Appeal.
- In Rhode Island’s case, the First Circuit ordered the parties to file additional briefs addressing the impact of the Supreme Court’s decision. The fossil fuel company defendants-appellants’ supplemental brief is due July 28. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
- In Baltimore’s case, the fossil fuel companies filed a consent motion on June 22 requesting that the Fourth Circuit set a schedule for supplemental briefing and oral argument. The companies suggested a schedule consistent with the one adopted by the First Circuit. The companies contended that additional briefing was necessary both because their initial briefing before the Fourth Circuit in support of their grounds for remand was constrained by the need to address the now-resolved issue of the scope of appellate review and also because there have been significant legal developments since the initial briefing was completed. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. June 22, 2021).
- In the cases brought by County of San Mateo and other California local governments, the Ninth Circuit on July 1 denied a similar motion filed by fossil fuel companies requesting that the court set a schedule for supplemental briefing and oral argument. County of San Mateo v. Chevron Corp., No. 18-15499, 18-15502, 18-15503, 18-16376 (9th Cir. June 23, 2021).
- In the case brought by Boulder and San Miguel Counties and the City of Boulder, the Tenth Circuit recalled the mandate and vacated its earlier judgment. The Tenth Circuit directed the parties to file supplemental briefs simultaneously on July 16 to address the import of the Supreme Court’s decision. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 19-1330 (10th Cir. June 25, 2021).
The following developments have taken place in the last month in other climate cases brought by state and local governments:
- In King County’s case in Washington federal court, which has been stayed since October 2018, the parties informed the court that they had been discussing next steps in light of the Supreme Court’s denial of the petition for writ of certiorari in City of Oakland v. BP p.l.c., and that they hoped to reach an agreement soon on next steps. They requested a continuation of the stay, with a joint status report and proposal for next steps to be due by July 6. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. June 28, 2021).
- Anne Arundel County, Maryland filed a motion in federal court in Maryland to remand its case to state court. The County acknowledged that proceedings had been stayed but said it was filing the motion “out of abundance of caution and to avoid inadvertent waiver.” The County said it would file a memorandum in support of the motion after the stay was lifted. The motion previewed the County’s arguments, including that the federal court lacked jurisdiction because the County asserted only state law claims, and that the case was not removable under the Outer Continental Lands Shelf Act or the federal-officer removal statute or based on federal enclave jurisdiction. Anne Arundel County v. BP p.l.c., No. 1:21-cv-01323 (D. Md. June 28, 2021).
- New York City filed a motion to remand in its suit asserting violations of the City’s consumer protection law. The City contended that the defendants failed to establish that the federal district court for the Southern District of New York had jurisdiction based on any of the grounds cited in the notice of removal. The City said it solely alleged violations of state law, and that the complaint did not necessarily raise a substantial and disputed question of federal law (Grable jurisdiction). The City also asserted that there was no federal jurisdiction under the federal-officer removal state, the Outer Continental Shelf Lands Act, or the Class Action Fairness Act, or based on federal enclave or diversity jurisdiction. The City requested costs and fees incurred as a result of the allegedly improper removal. New York City is to file its opening brief in support of the remand motion on July 7, 2021, with the opposition brief due on August 16, and the reply brief due September 6. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. June 25, 2021).
- On June 17, 2021, the fossil fuel industry defendants-appellants filed their opening brief in the Eighth Circuit Court of Appeals for their appeal of the remand order in the State of Minnesota’s lawsuit. They argued that removal was proper because Minnesota’s claims arose under federal law and necessarily raised substantial and disputed federal issues, and also based on the federal-officer removal statute, the Outer Continental Shelf Lands Act, and the Class Action Fairness Act. On June 23, the nonprofit corporation Energy Policy Advocates filed a motion for leave to file amicus brief in support of the defendants-appellants. The amicus brief said Energy Policy Advocates had made “tenacious use of public-records laws” to document the “troubling origin” of the State’s lawsuit. The group argued that the case originated with “activists and lobbyists who desire to impact national climate policy,” and that federal courts therefore should adjudicate the case. The group also argued that concerns about state court bias were amplified in this case. Minnesota v. American Petroleum Institute, No. 21-01752 (8th Cir.).
- On June 8, 2021, Exxon Mobil Corporation appealed the remand order in the State of Connecticut’s climate lawsuit. On June 11, the federal district court for District of Connecticut granted a temporary stay of the remand order pending the Second Circuit’s decision on Exxon’s motion to stay, which Exxon filed on June 18. The district court said it did not view Exxon’s arguments in support of its motion to stay execution of the remand order “as showing a strong likelihood of success on the merits, or even a likelihood of success with the balance of the equities in the defendants [sic] favor.” Connecticut v. Exxon Mobil Corp., No. 3:20-cv-01555 (D. Conn.), No. 21-1446 (2d Cir.).
Opening Brief Filed in Appeal of Dismissal of “Right to Wilderness” Case
Nonprofit organizations and individuals filed their opening brief in their Ninth Circuit appeal of a District of Oregon decision dismissing their lawsuit asserting a constitutional “right to wilderness” that the federal government violated by failing to protect public wild lands from climate change. The plaintiffs-appellants argued that the district court erred when it found that the plaintiffs lacked standing and ruled that no plaintiff can suffer a particularized injury due to climate change. The plaintiffs also contended that they had specifically alleged the particular remedies they sought to protect public lands from the adverse impacts from climate change. In addition, the plaintiffs argued that they had pled sufficient facts to state “a substantive due process right to be let alone … , expressed through solitude in wilderness.” Animal Legal Defense Fund v. United States, No. 19-35708 (9th Cir. June 21, 2021).
EPA Requested Continuation of Abeyance in Case Challenging Repeal of Oil and Gas Sector Regulations
On June 14, 2021, EPA filed a status report in the case challenging the 2020 rule that repealed portions of EPA’s Clean Air Act regulations for emissions from the oil and gas sector. EPA reported on actions it had taken in its review of the 2020 rule, including opening a public docket, holding training sessions on the rulemaking process, and scheduling listening sessions for June 15-17. EPA said it also was monitoring congressional action on S.J. Res. 14, which would disapprove the 2020 rule under the Congressional Review Act. EPA reported that the Senate passed S.J. Res. 14 on April 28, and that the House Committee on Energy and Commerce approved it on June 10. EPA said it would notify the court if the resolution was signed into law since it would have the effect of terminating EPA’s administrative reconsideration of the rule. In light of these developments, EPA requested that the case continue to be held in abeyance. The House of Representatives subsequently passed the resolution on June 25, and President Biden signed it on June 30. California v. Regan, No. 20-1357 (D.C. Cir. June 14, 2021).
Tenth Circuit Abated WildEarth Guardians’ Appeal of Decision Upholding NEPA Review for New Mexico Oil and Gas Leases
The Tenth Circuit Court of Appeals granted a motion by federal defendants-appellees and WildEarth Guardians to abate WildEarth Guardians’ appeal of a 2020 district court decision that largely rejected the organization’s claims that the NEPA review for oil and gas leases in southeastern New Mexico was inadequate. The arguments rejected by the district court included that the U.S. Bureau of Land Management failed to consider cumulative climate change effects and that BLM should have applied the social cost of carbon. In their request for abatement, the federal defendants and WildEarth Guardians said abatement was necessary to facilitate further mediation of a potential resolution that would avoid the need for further litigation. American Petroleum Institute opposed abatement, arguing that it would delay final resolution of the claims and undermine national policies favoring development of oil and gas resources as well as private investments in the issued leases. The court abated the case for an initial 180-day period and said continuation of the abatement beyond that time would require agreement of all parties or an order of the court. WildEarth Guardians v. Haaland, No. 20-2146 (10th Cir. June 11, 2021).
Keystone XL Developers Said Termination of Project Rendered Challenge to Presidential Permit Moot; Other Keystone Lawsuits Delayed or on Hold
In the case challenging President Trump’s issuance of a presidential permit for the Keystone XL Pipeline project, the Keystone XL developers on June 9, 2021 notified the federal district court for the District of Montana of the project’s termination. The developers contended that the project’s termination was a material change of circumstances that warranted reconsideration of the court’s May 28 ruling that the case was not moot despite President Biden’s revocation of the permit. The developers said they would confer with the parties to determine whether they agreed the case was now moot and that if any party disagreed, the developers would file a motion to dismiss. The developers filed their motion to dismiss on June 30. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. June 9, 2021).
In an appeal in the case challenging the U.S. Army Corps of Engineers’ reliance on the 2017 Nationwide Permit (NWP) 12 to authorize the Keystone XL project, the project’s developers told the Ninth Circuit that the termination of the project made the challenge of the application of NWP 12 to Keystone XL moot. Northern Plains Resource Council v. U.S. Army Corps of Engineers, Nos. 20-35412, 20-35414, and 20-35432 (9th Cir. June 25, 2021).
Two separate lawsuits challenging BLM’s approval of a right-of-way for the Keystone XL project were stayed until August 6, 2021 at the parties’ request to allow them to consider next steps. Bold Alliance v. U.S. Department of the Interior, No. 4:20-cv-00059 (D. Mont. June 16, 2021); Rosebud Sioux Tribe v. U.S. Department of Interior, No. 4:20-cv-00109 (D. Mont. June 7, 2021).
In a lawsuit brought by Texas and 22 other states in the federal district court for the Southern District of Texas, the court granted the federal defendants’ requests for extensions of time to file their motion to dismiss, which will argue that the case is moot. The defendants requested the extensions with the consent of the states, who said they were evaluating the issue. The motion to dismiss is currently due on July 13. Texas v. Biden, No. 3:21-cv-00065 (S.D. Tex.).
Chicago Residents Asserted Parking Meter Monopoly Would Inhibit Carbon-Free Transportation Alternatives
Three Chicago residents filed a lawsuit challenging an agreement under which the City of Chicago granted a private company “monopoly control over the City’s parking meter system for an astonishing 75-year-long period.” The plaintiffs alleged the agreement was made “without regard for changes in transportation resulting from climate change and the imperative need to reduce greenhouse gas emissions.” They also alleged that they faced loss or damage from paying for “an increasingly outmoded parking system” that “delays or inhibits the increased use or availability of better carbon free means of transportation.” They asserted that the agreement and the company’s monopoly control over City parking meters violated the Sherman Act and that the company’s operations under the agreement constituted an unfair trade practice in violation of the Illinois Consumer Fraud and Deceptive Practices Act. Uetricht v. Chicago Parking Meters, LLC, No. 1:21-cv-03364 (N.D. Ill., filed June 23, 2021).
Plaintiffs Alleged that True Reason for SEC Shareholder Proposal Rule Amendments Was Management Opposition to Environmental and Social Issue Proposals
A lawsuit filed in federal district court in the District of Columbia challenged the U.S. Securities and Exchange Commission’s (SEC’s) adoption of amendments to Rule 14a-8, which governs the submission of shareholder proposals for inclusion in a company’s proxy statement. The plaintiffs—a coalition of institutional investors, an individual shareholder advocate, and a nonprofit corporation described as “one of the nation’s leading practitioners of corporate engagement and shareholder advocacy”—asserted that the SEC violated the Administrative Procedure Act because the amendments were arbitrary, capricious, and not in accordance with law; because the SEC acted in excess of its statutory authority and failed to observe required procedures; and because the SEC used a pretextual justification for the amendments (reducing costs) when its “true reason … was corporate management opposition to the substance of many types of shareholder proposals, particularly those addressing environmental and social issues.” The complaint alleged that climate change had become “an increasing focus” of shareholder proposals. Interfaith Center on Corporate Responsibility v. U.S. Securities and Exchange Commission, No. 1:21-cv-01620 (D.D.C., filed June 15, 2021).
Settlement Talks and Hearing Held in Juliana; States Sought to Intervene to Oppose Settlement
On June 23, 2021, the parties in Juliana v. United States met with the magistrate judge for an initial settlement conference. Two days later, the district court heard oral argument on the plaintiffs’ motion to file an amended complaint and took the matter under advisement. The youth plaintiffs seek to amend their complaint to add a request for declaratory relief after the Ninth Circuit ruled that they lacked standing because they did not establish the redressability element of Article III standing. Earlier in June, 17 states filed a motion for limited intervention on behalf of the defendants. They argued that intervention was necessary to allow them “to ensure their interests are not undermined through settlement of a dispute that this Court lacks jurisdiction to adjudicate.” An eighteenth state, Kansas, filed a similar motion for limited intervention two weeks later. The plaintiffs’ response to the 17 states’ motion is due on July 6. Juliana v. United States, No. 6:15-cv-01517 (D. Or. June 8, 2021). [Editor’s Note: Due to a technical issue, recent updates for Juliana v. United States are currently not available on the website.]
Biden Administration Asked Missouri Federal Court to Dismiss States’ Challenge to Actions on Social Cost of Greenhouse Gases
Federal defendants filed a motion to dismiss in the lawsuit brought by Missouri and other states to challenge the Interim Values for the Social Cost of Carbon, Methane, and Nitrous Oxide, which were released in response to a directive in President Biden’s Executive Order 13990, which the states also challenge. The defendants argued that the states did not have standing because any possibility of an injury caused by the challenged actions was speculative and any injury would be the result of “future, hypothetical agency actions,” not the actions challenged in this case. The defendants also contended the alleged injuries were not redressable. In addition, the defendants argued that the claims were not ripe, that the states lacked a cause of action, and that their claims were meritless. The defendants also responded to the states’ motion for a preliminary injunction, arguing that they had failed to show imminent, irreparable harm, that a preliminary injunction would disserve the public interest, and that any relief should be limited to declaring the Interim Values non-binding. Missouri v. Biden, No. 4:21-cv-00287 (E.D. Mo. motion to dismiss June 4, 2021).
Developer Appealed California Court’s Rejection of Challenge to “Reach Code”
A developer who unsuccessfully challenged the City of Santa Rosa’s adoption of a “Reach Code” appealed the denial of his petition/complaint in the California Court of Appeal. The Reach Code requires new low-rise residential construction to provide a permanent electricity supply for space heating, water heating, cooking, and clothes drying, and bans plumbing for natural gas. A California trial court rejected the plaintiff’s claims that the City’s adoption of the Reach Code violated the California Environmental Quality Act and laws governing reach codes. Gallaher v. City of Santa Rosa, No. SCV-265711 (Cal. Super. Ct. June 21, 2021).
Consumer Protection Lawsuit Against Coca-Cola Cited Climate Impacts of Plastic
Earth Island Institute—a “public-interest organization” whose mission includes “educating consumers … and engaging in advocacy related to environmental and human health issues”—brought a lawsuit in the Superior Court of the District of Columbia against The Coca-Cola Company alleging that Coca-Cola engaged in false and deceptive marketing by representing itself as a “sustainable and environmentally friendly company, despite being one of the largest contributors to plastic pollution in the world.” The complaint asserted violations of D.C. Consumer Protection Procedures Act. Among the harmful impacts of plastic pollution alleged by the plaintiff were plastics’ “incredibly carbon-intensive life cycles.” Earth Island Institute v. Coca-Cola Co., No. 2021 CA 001846 B (D.C. Super. Ct., filed June 8, 2021).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Belgian Court Held the Government in Breach of Its Duty of Care and in Violation of Human Rights for Failing to Take Necessary Climate Measures
Similar to the Urgenda case in the Netherlands, the Klimaatzaak—“climate case”—was brought by an organization of concerned citizens, and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government to be more aggressive in reducing greenhouse gas emissions. The suit named the Belgian State, the Walloon Region, the Flemish Region, and the Brussels-Capital Region as defendants. Specifically, plaintiffs called for reductions of 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050.
On June 17, 2021, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific reduction targets on separation of powers grounds.
The Court found the federal state and the three regions jointly and individually in breach of their duty of care for failing to enact good climate governance. The Court found that despite being aware of the certain risk of dangerous climate change to the country’s population, the authorities failed to take necessary action, meaning that they failed to act with prudence and diligence under Article 1382 of the Civil Code. Further, by failing to take sufficient climate action to protect the life and privacy of the plaintiffs, the defendants were in breach of their obligations under Articles 2 and 8 of the European Convention on Human Rights.
However, the Court declined to issue an injunction ordering the government to set the specific emission reduction targets requested by the plaintiffs. The Court found that the separation of powers doctrine limited the Court’s ability to set such targets, and doing so would contravene legislative or administrative authority. Neither European nor international law required the specific reduction targets requested by the plaintiffs, and the scientific report that they relied on, while scientifically meritorious, was not legally binding. The specific targets, therefore, were a matter for the legislative and executive bodies to decide. VZW Klimaatzaak v. Kingdom of Belgium & Others (Brussels Court of First Instance).
Brazilian Court Granted a Preliminary Injunction Ordering the Removal of Cattle Herds from Farms that Caused Deforestation
A Federal Environmental and Agrarian Court in Brazil issued a preliminary decision on April 16, 2021, granting an injunction against a Brazilian farmer (Dauro Parreiras de Rezende), ordering the removal of a cattle herd from farms that caused deforestation. The case was brought by the Amazon Task Force, established by the federal public prosecutors in 2018 to combat illegal deforestation in Amazonia, through the Ministério Público Federal (MPF), or the federal prosecution office. The MPF brought a tort case against de Rezende for causing the deforestation of 2,488.56 hectares (the equivalent of 4,650 football fields) between 2011 and 2018 in the Amazon, in violation of the right to a healthy environment guaranteed by the Brazilian Constitution. In its preliminary decision, the Court also suspended any paperwork related to the movement of cattle to or from the farms.
The MPF further seeks up to R$ 85.4 million (about USD $17 million) in monetary damages from de Rezende for (i) residual material and intermediate climate damage, i.e., the value of emissions that deforestation has caused; (ii) collective pain and suffering as a violation of human rights (moral damages); (iii) intermediate and residual material environmental damages; and (iv) compensation for illegal profits from deforestation. Ministério Público Federal v. de Rezende (7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas).
Plaintiffs Appealed the Norwegian Arctic Oil Case to the European Court of Human Rights
A coalition of environmental groups sought a declaratory judgment from Norwegian courts that Norway’s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. On December 22, 2020, the Supreme Court of Norway upheld the licenses for deep-sea extraction. The Court reasoned that although the Norwegian constitution protects citizens from environmental and climate harms, the future emissions from exported oil are too uncertain to bar the granting of these petroleum exploration licenses.
The plaintiffs appealed to the European Court of Human Rights on June 15, 2021. They argue that the Norwegian government, in issuing the licenses for oil and gas exploration that will lead to emissions in 2035 and beyond, violated plaintiff’s rights under Articles 2 (right to life) and 8 (right to privacy) of the European Convention on Human Rights. In addition, they argue that the Norwegian courts failed to adequately assess their claims and thus failed to provide plaintiffs access to an effective domestic remedy under Article 13. Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (European Court of Human Rights).
Italian Citizens and NGOs Filed Case Alleging that Italian Government’s Climate Inaction Is Violating Fundamental Rights
On June 5, 2021, environmental justice NGO A Sud and more than 200 plaintiffs filed suit alleging that the Italian government, by failing to take actions necessary to meet Paris Agreement temperature targets, is violating fundamental rights, including the right to a stable and safe climate. The action, part of a campaign called Giudizio Universale (The Last Judgment), seeks a declaration that the government’s inaction is contributing to the climate emergency and a court order to reduce emissions 92% by 2030 compared to 1990 levels. According to an executive summary of the claim released by the plaintiffs, the government’s climate obligations stem from the Paris Agreement, EU regulations, and IPCC reports. The human right to a stable and safe climate is based on guarantees in Article 6 of the Treaty of the European Union (guarantee of fundamental rights), and Articles 2 (right to life) and 8 (right to privacy) of the European Convention on Human Rights, among others. These rights violations give rise to non-contractual liability of the Italian government under Article 2043 of the Italian Civil Code. A Sud et al. v. Italy (Civil Court of Rome).
Five Cases in Poland Alleged Polish Government’s Failure to Protect Plaintiffs from Climate Change Violates Personal and Human Rights
During the week of June 7, 2021, three of five individual suits were filed alleging that the Polish government failed to protect plaintiffs from worsening climate impacts, in violation of Polish personal rights protected by the Polish Civil Code. Together, the five suits represent efforts by parents, ecotourism business owners, farmers, and a youth climate campaigner to sue the government in district court using similar claims and a common remedy. According to a briefing released by ClientEarth, who are supporting the plaintiffs, Poland’s outdated stance on climate change, including producing 70% of its electricity from coal, has contributed to climate-caused droughts, wildfires, flooding, and crop failures. Plaintiffs allege violation of the rights to life, health, and property enshrined in the Polish Civil Code, in addition to the rights to life and private and family life codified in Articles 2 and 8 of the European Convention on Human Rights. They seek a court order requiring the government to reduce national GHG emissions 61% by 2030 compared to 1990 levels, and to reach net zero emissions by 2043. Górska et al. v. Poland (Poland District Courts).