August 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 # 148.

FEATURED CASE

Washington Supreme Court Said Climate Activist Was Entitled to Present Necessity Defense Based on Evidence that Legal Alternatives Were Not “Truly Reasonable”

The Washington Supreme Court ruled that a climate activist should be permitted to present a necessity defense to charges of criminal trespass and unlawful obstruction of a train in connection with a 2016 protest on railroad tracks used by trains carrying coal and oil products. The Supreme Court reversed an intermediate appellate court’s decision affirming a superior court determination that the defendant could not present a necessity defense. The intermediate appellate court held that the defendant was not entitled to present the defense because he had “reasonable legal alternatives” to trespass and obstruction even if those alternatives were not effective. The Supreme Court called the appellate court’s conclusion that there are always reasonable legal alternatives to disobeying constitutional laws “untenable,” and held that “reasonable legal alternatives” must be effective. Whether a legal alternative was “truly reasonable” would be a fact-dependent determination, and “[i]f the defendant offers evidence that they have actually tried the alternative, had no time to try it, or have a history of futile attempts with the alternative, they have created a question of fact for the jury regarding whether there are reasonable legal alternatives.” In this case, the defendant had presented a question of fact as to whether reasonable legal alternatives existed with evidence of his efforts over the years to “call attention to the harms of climate change through lawful methods.” The Supreme Court also noted the testimony of the defendant’s expert on nonviolent resistance “that peaceful civil disobedience is essential to combating climate change.” In the interests of judicial economy, the Supreme Court also held that the defendant satisfied the other three elements of the necessity defense: (1) he presented sufficient evidence to reach a jury on the question of whether he believed his actions were necessary to avoid or minimize harms; (2) he did not bring about the threatened harms; and (3) he presented sufficient facts to support a conclusion that the harms he sought to avoid were greater than the harm caused by violation of the law, including evidence that he planned the protest for a time when trains were not scheduled to approach and that he notified the railway company. State of Washington ex rel. Haskell v. Spokane County District Court, No. 98719-0 (Wash. July 15, 2021).

DECISIONS AND SETTLEMENTS

First Circuit Vacated Stay Order in Lawsuit Alleging Exxon Failed to Prepare Petroleum Terminal for Climate Change

The First Circuit Court of Appeals ruled that a federal district court in Massachusetts improperly stayed Conservation Law Foundation’s citizen suit charging Exxon Mobil Corporation (Exxon) with violating its National Pollutant Discharge Elimination System (NPDES) permit as well as the Resource Conservation and Recovery Act by failing to account for climate change factors at a petroleum storage and distribution terminal in Everett, Massachusetts. The district court had granted Exxon’s motion to stay the case under the doctrine of primary jurisdiction to allow the U.S. Environmental Protection Agency (EPA) to issue a decision on Exxon’s application to renew the NPDES permit, which had expired in 2014. The First Circuit found that it had appellate jurisdiction even though the stay order was not a final decision because the stay order rendered Conservation Law Foundation “effectively out of court” due to the length of the stay and its indefinite nature. The First Circuit further found that the stay was unnecessary because abstention under the primary jurisdiction doctrine was improper. The First Circuit concluded that two of the three factors for application of the primary jurisdiction doctrine could weigh in favor of a stay—(1) issuing the permit was “at the heart” of the task assigned to EPA by Congress, and (2) the court assumed for the sake of argument that “agency expertise would be helpful to unravel which climate models most accurately capture the effects of the climate change factors” that Exxon allegedly failed to take into account. The First Circuit concluded, however, that the third factor—whether EPA’s decision would materially aid the court—outweighed the other factors and that EPA’s determination on the permit application “seems to us largely irrelevant to whether ExxonMobil has violated the conditions of the permit currently in effect” and that it was “wholly speculative whether the issuance of the permit will illuminate EPA’s beliefs as to the best climate change models or how good engineers would respond to them.” The court also found that a need for “national uniformity” was not at issue in this case. The First Circuit therefore disagreed with the district court’s determination that EPA’s decision on the permit could render much of the case moot, as well as the district court’s belief that deferring to EPA would not delay resolution of the case. The First Circuit vacated the stay order and remanded to the district court. Conservation Law Foundation v. Exxon Mobil Corp., No. 20-1456 (1st Cir. July 1, 2021).

Ninth Circuit Affirmed Rejection of NEPA Challenges to Immigration Policies

The Ninth Circuit Court of Appeals affirmed judgment in favor of the Secretary of the Department of Homeland Security on claims that the Department violated the National Environmental Policy Act (NEPA) by failing to consider environmental impacts of certain immigration programs and policies. The plaintiffs—identified as environmentalists, environmental groups, natural resource conservation groups, and cattle ranchers—alleged, among other things, that the immigration actions resulted in increased greenhouse gas emissions. The Ninth Circuit found that a manual that described how the Department would implement NEPA was not a final agency action subject to review under the Administrative Procedure Act, and that immigration “programs” challenged by the plaintiffs, including Temporary Protective Status and long-term nonimmigrant visas, were not discrete agency actions subject to review. The Ninth Circuit ruled that the plaintiffs did not have standing for their remaining claims. Whitewater Draw Natural Resource Conservation District v. Mayorkas, No. 20-55777 (9th Cir. July 19, 2021).

D.C. Circuit Said EPA Endangered Species Determinations for 2019 Renewable Fuel Rule Were Arbitrary and Capricious

The D.C. Circuit largely rejected challenges to the U.S. Environmental Protection Agency’s (EPA’s) 2019 rule setting renewable fuel volumes in the Clean Air Act’s Renewable Fuel Standard Program. The court rejected all arguments by obligated parties and renewable fuel producers but agreed with environmental petitioners that EPA’s (1) determination that the rule would have no effect on endangered species or their critical habitat and (2) decision not to reduce applicable volumes to prevent severe environmental harm were at odds with the evidence in the administrative record. Growth Energy v. EPA, No. 19-1023 (D.C. Cir. July 16, 2021).

Ninth Circuit Dismissed Appeal of Denial of Environmental Groups’ Preliminary Injunction Motion in Keystone XL Case; District Court Denied Motion to Dismiss Challenge to 2019 Presidential Permit as Moot

After the developers terminated the Keystone XL pipeline project, the Ninth Circuit Court of Appeals on July 16, 2021 dismissed for lack of jurisdiction an appeal of the district court’s denial of a motion for a preliminary injunction barring work on the pipeline. The Ninth Circuit declined to remand with instructions for dismissal of the underlying action and also declined to vacate any district court decisions. In addition, the Ninth Circuit took no position on whether the underlying action was moot or whether vacatur was appropriate, instead leaving those matters to the district court. On July 21, the plaintiffs filed their opposition in district court in Montana to the developers’ motion to dismiss the action as moot. The plaintiffs cited three reasons that the case was not moot: (1) President Biden’s revocation of the presidential permit could be vacated in the pending Texas v. Biden litigation in the Southern District of Texas and President Biden or a future president could reinstate the permit; (2) the developers had not committed to address the harmful effects of the uncompleted construction of the pipeline project; and (3) the developers could revive the project if they are unsuccessful in a $15 billion claim under the arbitration provision of the North American Free Trade Agreement based on economic harm from President Biden’s revocation. The developers announced their filing of a notice of intent to pursue such a claim on July 2. The plaintiffs argued that these factors make the lawfulness of the presidential permit granted by President Trump “anything but a moot question.” On July 30, 2021, the district court (which previously determined that the revocation of the permit did not render the case moot) denied the developers’ motion to dismiss. The court found that nothing in the developers’ announcement of the termination of the project altered its earlier decision on mootness. The court said the 2019 permit continued to present a live controversy, and that, even if it did not, it met the mootness exception for voluntary cessation of unlawful activity. Indigenous Environmental Network v. Biden, No. 20-36068 (9th Cir. July 16, 2021); Indigenous Environmental Network v. Trump, No. 4:19-00028 (D. Mont. July 30, 2021).

In the case challenging President Biden’s revocation of the presidential permit, the federal government moved to dismiss, arguing that the case was moot, that the court lacked jurisdiction to grant relief against the president and the agency defendants, and that the states lacked standing, which also made venue improper. The defendants also argued that the states failed to state a separation of powers claim or a non-delegation claim. On July 13, the federal district court for the Southern District of Texas stayed discovery until the motion to dismiss was decided, citing “unique circumstances” due to separate of powers concerns related to seeking discovery against the president and vice president, and also due to the “expansive scope” of proposed discovery, especially since the case appeared to involve a “purely legal question” about the scope of presidential authority. Texas v. Biden, No. 3:21-cv-00065 (S.D. Tex. July 12, 2021).

Pipeline Company Voluntarily Dismissed Appeal in Case Challenging South Portland Ordinance

On July 15, 2021, a company that operates a crude oil pipeline system running from South Portland, Maine, to oil refineries in Quebec filed a stipulation of voluntary dismissal in the First Circuit Court of Appeals to voluntarily dismiss its appeal of a district court decision upholding a South Portland ordinance that prohibited bulk loading of crude oil onto marine tank vessels. The Portland Press Herald reported that the pipeline company said its parent company decided to dismiss the appeal because the company did not have current plans to reverse the flow in the pipeline to bring crude oil from Canada to South Portland for export. Portland Pipe Line Corp. v. City of South Portland, No. 18-2118 (1st Cir. July 15, 2021).

Parties Agreed to Dismissal of Lawsuit After Interior Department Withdrew 2019 Interpretation that Allegedly Expanded Potential Sand Mining of Coastal Barriers

National Audubon Society, Secretary of the Interior Deb Haaland, other federal defendants, and New Jersey localities who intervened as defendants agreed to the dismissal of National Audubon Society’s lawsuit challenging a 2019 Interior Department memorandum that interpreted the Coastal Barrier Resources Act to allow use of sand removed from within the Coastal Barrier Resources System for shoreline stabilization projects outside the System. National Audubon Society alleged that the rule “vastly expands potential sand mining projects in delicate coastal barriers” and further alleged that coastal barriers would become even more important due to climate change and were expected to mitigate $108 billion of sea level rise and flooding damages over the next 50 years. On June 22, 2021, the federal defendants informed the court that they anticipated that they would revise the 2019 interpretation and issue a new interpretation. In July, the Interior Department rescinded the 2019 memorandum, reinstating the interpretation that had been in place from 1994 to 2019, which required that sand from the System be used only in shoreline stabilization projects within the System. The Biden-Harris administration had identified the 2019 interpretation as an action to be reviewed under President Biden’s Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” National Audubon Society v. Haaland, No. 1:20-cv-05065 (S.D.N.Y. July 23, 2021).

Federal Court Rejected Federal Preemption Challenge to Berkeley Natural Gas Ban

The federal district court for the Northern District of California ruled that a restaurant trade association failed to state a claim that the federal Energy Policy and Conservation Act (EPCA) preempted the City of Berkeley’s ordinance prohibiting natural gas infrastructure in new construction. The court rejected Berkeley’s jurisdictional grounds for dismissal (standing and ripeness) but found that the association failed to demonstrate that EPCA expressly preempted Berkeley’s ordinance because the ordinance “does not directly regulate either energy use or energy efficiency of covered appliances.” The court further found that EPCA’s legislative history did not support the plaintiff’s “expansive interpretation.” The court also noted that states and localities “expressly maintain control over the local distribution of natural gas under related federal statutes” such as the Natural Gas Act. The court declined to exercise supplemental jurisdiction over the plaintiff’s state law claims and dismissed them without prejudice. Sabin Center Senior Fellow Amy Turner discussed the court’s decision in a post on the Climate Law Blog. California Restaurant Association v. City of Berkeley, No. 4:19-cv-07668 (N.D. Cal. July 6, 2021).

“Valve Turner” Defendants Convicted of Aiding and Abetting Criminal Damage to Property

On July 8, 2021, a jury in Minnesota state court found four activists guilty of aiding and abetting fourth degree criminal damage to property, a misdemeanor offense. The defendants were arrested in February 2019 after they entered an Enbridge pipeline valve site and turned valves on a pipeline. The defendants were sentenced to 15 days in jail, with credit for time served, and to pay fees and fines of $75. The court also ordered a one-year probation term and directed them not to enter any Enbridge property or facility. The Climate Defense Project’s Climate Necessity Defense Case Guide indicates that in August 2019 the court granted in part the State’s motion to exclude evidence for a necessity defense, finding that the “Four Necessity Valve Turners” had legal alternatives and failed to show that climate change harms were imminent; the court found, however, that the defendants presented sufficient evidence of a direct causal connection between violating the law and preventing harm. The Case Guide reports that the court excluded expert testimony but allowed a limited necessity defense. State v. Yildirim, No. 31-CR-19-395 (Minn. Dist. Ct. July 8, 2021).

Maryland Appellate Court Affirmed Ruling for Baltimore in Case Seeking Correspondence and Agreements Related to City’s Climate Case

The Maryland Court of Special Appeals affirmed a decision granting summary judgment to the Mayor and City Council of Baltimore (the City) in a case brought by Energy Policy Advocates under the Maryland Public Information Act to compel the City to disclose correspondence between City attorneys and outside environmental groups, as well as correspondence and agreements with the law firm that represents the City in its lawsuit seeking to hold fossil fuel companies liable for their contributions to climate change. The appellate court found that the circuit court did not abuse its discretion when it granted summary judgment to the City based on the City’s pleadings and an affidavit. The appellate court noted that the judge had found that in camera review or a Vaughn index were not necessary because the information requested by Energy Policy Advocates was protected from disclosure given that there was ongoing litigation. Energy Policy Advocates v. Mayor & City Council of Baltimore, No. 1059 (Md. Ct. Spec. App. July 15, 2021).

D.C. Court Said Climate Scientist Provided Sufficient Evidence of Actual Malice for Blog Authors but Not for Publisher

In climate scientist Michael Mann’s defamation lawsuit against individuals and organizations that published blog posts that characterized his work as fraudulent and attributed misconduct to him, a District of Columbia Superior Court denied summary judgment motions by the defendants on the issue of the individual authors’ “actual malice” and by Mann on the issue of the falsity of the blog posts. The court found, however, that Mann failed to offer evidence establishing that Competitive Enterprise Institute (CEI)—which published one of the blogs—acted with “actual malice.” (The court made a similar ruling in March 2021 with respect to National Review, Inc. the publisher of the other blog.) The court said this failure to establish actual malice was the result of the nature of the blog, which was “designed for low-effort management on the part of CEI, where outside writers enjoy a platform for their opinions, with only cursory review by a relatively low-ranking CEI employee prior to publication.” With respect to the author of the post on CEI’s blog, the court found that Mann offered “significant evidence” that would allow a reasonable jury to find that the author acted with actual malice. The court denied summary judgment on the issue of whether the article was false. In a separate decision, the court denied a motion by the author of the blog post on the National Review’s website for summary judgment on the issues of protected speech concerning public opinions, actual malice, truth, and whether Mann should be awarded damages. The court also denied Mann’s motion for summary judgment on the issue of whether statements in the blog post were false. Mann v. National Review, Inc., 2012 CA 008263 B (D.C. Super. Ct. July 22, 2021).

NEW CASES, MOTIONS, AND OTHER FILINGS

Courts of Appeal Received New Briefs on Removal Issues in State and Local Climate Cases

Supplemental briefing began in federal courts of appeal in cases remanded by the Supreme Court after the Court issued its decision in Mayor & City Council of Baltimore v. BP p.l.c. holding that the scope of appellate review of remand orders extended beyond review of removal based on the federal-officer removal statute.

• In Rhode Island’s case, the defendants submitted their principal supplemental brief on July 28, arguing that removal of the case was proper because Rhode Island’s claims necessarily arose under federal law and also because the case had a connection with the defendants’ activities on the outer continental shelf. The Chamber of Commerce of the United States of America filed an amicus brief in support of the defendants, arguing that federal courts had original jurisdiction over cases with claims that have an “inherently federal basis” and that the artful pleading doctrine applied to Rhode Island’s state law claims “about the inherently global problem of climate change.” Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).

• In the Tenth Circuit, both fossil fuel companies and local government entities filed supplemental briefs on July 16. The local governments argued that the court should reject the companies’ remaining arguments for removal (federal common law, Grable (substantial federal question), complete preemption, federal enclave jurisdiction, and the Outer Continental Shelf Lands Act). The fossil fuel companies’ supplemental brief focused on their argument that federal common law necessarily governed the local governments’ claims because the claims concerned injuries allegedly caused by interstate emissions. The companies argued that the Second Circuit’s recent decision affirming the dismissal of New York City’s climate case supported their position because New York’s claims were “indistinguishable” from the claims in this case. The local governments took the position that the Second Circuit’s decision regarding the application of federal common law was distinct from the jurisdictional question at issue in this case; the local governments also argued, however, that the Second Circuit’s decision was incorrect. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 19-1330 (10th Cir. July 16, 2021).
• In Baltimore’s case, the fossil fuel companies’ supplemental opening brief is due August 6, the supplemental response brief is due September 7, and any supplemental reply brief is due September 28. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. July 26, 2021).

In addition, briefing began in fossil fuel companies’ appeals of the remand orders in cases brought by the City and County of Honolulu and the County of Maui. The companies argued that the actions were removable under the federal-officer removal statute, the Outer Continental Shelf Lands Act, and federal enclave jurisdiction. They also preserved their argument that Honolulu’s and Maui’s claims necessarily arose under federal law because they related to interstate and international air emissions, an argument rejected by the Ninth Circuit in City of Oakland v. BP p.l.c., as well as the argument that the plaintiffs’ claims depend on the resolution of substantial federal questions related to the federal government’s exclusive control over navigable waters of the United States, issues of treaty interpretation, issues of constitutional law, and federal relations. Two amicus briefs were filed in support of the companies, one by the U.S. Chamber of Commerce and the other by a retired general and a retired admiral, who wrote that they “strongly believe … important national and international policy issues should be addressed to Congress and the Executive Branch, not adjudicated piecemeal across the country in a multitude of state courts.” City & County of Honolulu v. Sunoco LP, Nos. 21-15313, 21-15318 (9th Cir.).

Developments in other local government climate cases pending in federal district courts included the following:

• In Oakland and San Francisco’s case, a fully briefed renewed motion to remand is pending before the federal district court for the Northern District of California. The parties submitted a joint case management statement on July 9 in which they indicated they were ready to proceed with the remand motion if the court was inclined to do so, but that they would understand if the district court preferred to wait until the Ninth Circuit ruled on the issues of remand under the Outer Continental Shelf Lands Act and federal enclave jurisdiction. The defendants believed it would be reasonable to proceed on the remand motion because two other grounds for removal were at issue in this case—(1) Grable jurisdiction because Oakland and San Francisco’s misrepresentation claims “necessarily incorporate affirmative federal constitutional elements imposed by the First Amendment” and (2) a “more robust” basis for federal-officer removal than the Ninth Circuit considered in rejecting federal-officer removal in San Mateo. The cities took the position that the Ninth Circuit’s previous decisions in San Mateo and Oakland bound the district court on these issues but did not object to proceeding. County of San Mateo v. Chevron Corp. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal.).
• On July 7, New York City filed its memorandum of law in support of its motion to remand. The defendants’ opposition to the motion is due by August 16. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. July 7, 2021).
• In King County’s case, which has been stayed since October 2018, the court granted the parties’ stipulated motion regarding deadlines for the defendants’ renewed motions to dismiss. Within 45 days, the defendants must file their motions to dismiss for failure to state a claim and for lack of personal jurisdiction. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. July 7, 2021).

After Congressional Review Act Disapproval, Petitioners Sought Voluntary Dismissal of Challenges to Trump EPA Amendments to Oil and Gas New Source Standards

Petitioners challenging the September 2020 EPA rule that repealed significant portions of the new source performance standards (NSPS) for the oil and natural gas sector moved for voluntary dismissal of their petitions for review in the D.C. Circuit after President Biden signed a joint resolution under the Congressional Review Act disapproving the September 2020 rule. The rule removed sources in the transmission and storage segment from the source category, rescinded the NSPS applicable to such sources, and also rescinded methane-specific requirements applicable to production and processing sources. The final rule also adopted an interpretation of Clean Air Act Section 111 that required, as a predicate to establishing NSPS, a determination by EPA that a pollutant causes or contributes significantly to dangerous air pollution. In a related case seeking to compel EPA to establish emission guidelines for methane emissions from existing sources in the oil and gas sector, the federal district court for the District of Columbia accepted the parties’ proposal that the parties submit a joint status report regarding how they wished to proceed after EPA issues a proposed rule for the emission guidelines. California v. Regan, Nos. 20-1357, 20-1359, 20-1363 (D.C. Cir. July 29, 2021); New York v. EPA, No. 1:18-cv-00773 (D.D.C. July 7, 2021).

Environmental Groups Appealed Dismissal of NEPA Regulations Lawsuit

Environmental groups filed a notice of appeal of the order of the federal district court for the Western District of Virginia dismissing their lawsuit challenging the Trump administration’s amendment of the Council on Environmental Quality’s regulations implementing NEPA. The district court held that the plaintiffs did not have standing and that their claims were not ripe. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va. July 30, 2021).

BLM Sought Remand Without Vacatur of NEPA Documents in Western State Oil and Gas Leasing Challenges

On July 30, 2021, the U.S. Bureau of Land Management (BLM) asked the federal district court for the District of Columbia for voluntary remand without vacatur of environmental assessments and findings of no significant impact in three cases challenging oil and gas lease sales in Colorado, Montana, New Mexico, Utah, and Wyoming. The cases were filed in 2016, 2020, and 2021. The federal defendants told the court that they had determined that remand was appropriate to allow additional analysis under NEPA in light of the court’s November 2020 decision in the 2016 case that found shortcomings in the analysis of greenhouse gas emission associated with the Wyoming leases at issue in that case. The federal defendants asserted that remand without vacatur was appropriate because there was “at least a serious possibility” that BLM would be able to substantiate its decision on remand, because the court lacked authority to order vacatur without an independent determination that the leasing decisions did not comply with NEPA, and because the plaintiffs and intervenors would have an opportunity to challenge any decisions the agency made on remand. American Petroleum Institute, which intervened as a defendant in all three cases, filed motions to dismiss in the 2020 and 2021 lawsuits, arguing that challenges to some of the leases in the lawsuits were time-barred. In the 2021 case, API also argued that res judicata or the doctrine of laches should bar the plaintiffs from challenging leasing decisions issued prior to the plaintiffs’ filing of their 2020 lawsuit. WildEarth Guardians v. Haaland, No. 1:21-cv-00175 (D.D.C. July 30, 2021); WildEarth Guardians v. Haaland, No. 1:20-cv-056 (D.D.C. July 30, 2021); WildEarth Guardians v. Haaland, No. 1:16-cv-01724 (D.D.C. July 30, 2021).

Federal Securities Actions Against Oatmilk Company Included Greenwashing Allegations

Two securities class actions filed in the federal district court for the Southern District of New York alleged that Oatly Group AB, the oatmilk company, and Oatly officials and directors made false statements and failed to disclose adverse facts that deceived the investing public and artificially inflated the prices of Oatly stock shares between the time of the company’s initial public offering in the United States in May 2021 and July 2021, when a short seller issued a report on “a number of improprieties at Oatly, including improper accounting practices and greenwashing (making the Company’s product appear more sustainable than it actually is).” The complaint alleged that Oatly’s statements in the registration statement filed with the Securities and Exchange Commission and in an investor presentation including misleading statements related to the greenhouse gas emissions and energy consumption associated with its product. Bentley v. Oatly Group AB, No. 1:21-cv-06485 (S.D.N.Y., filed July 30, 2021); Jochims v. Oatly Group AB, No. 1:21-cv-06360 (S.D.N.Y., filed July 26, 2021).

States Moved for Preliminary Injunction in Social Cost of Carbon Lawsuit in Louisiana

Louisiana and the nine other states challenging the Biden administration’s social cost of greenhouse gases estimates in the federal district court for the Western District of Louisiana filed a motion for a preliminary injunction. The states argued that they were likely to succeed on the merits of their claims that promulgation of the estimates was beyond the authority of President Biden and the Interagency Working Group that released the estimates and that the estimates violated the Administrative Procedure Act, as well as the Energy Policy and Conservation Act, the Clean Air Act, NEPA, the Mineral Leasing Act, and the Outer Continental Shelf Lands Act. The states also contended that the estimates would cause irreparable harm to their sovereign, proprietary, and parens patriae interests. Landmark Legal Foundation filed a motion for leave to file an amicus brief in support of the preliminary injunction motion. The brief would focus on separation of powers and Administrative Procedure Act issues. Louisiana v. Biden, No. 2:21-cv-01074 (W.D. La. July 29, 2021).

In a separate lawsuit pending in the federal district court for the Eastern District of Missouri, briefing was completed during July on both the motion for preliminary injunction filed by 13 other states to block the social cost of greenhouse gases and the motion to dismiss filed by the Biden administration. Missouri v. Biden, No. 4:21-cv-00287 (E.D. Mo.).

Solar Company Challenged Federal Approvals for Offshore Wind Project

Two related companies that own, operate, and develop solar electric generating facilities and the president and senior general counsel (also a part-time resident of Edgartown, Massachusetts) filed a lawsuit in the federal district court for the District of Massachusetts challenging the Vineyard Wind Project, an 800-megawatt offshore wind farm that would be the first commercial-scale offshore wind farm in the United States. The plaintiffs alleged that the defendants violated NEPA, the Outer Continental Shelf Lands Act, the Clean Water Act, and the Marine Mammal Protection Act. The complaint’s allegations included that the final environmental impact statement (FEIS) failed to analyze the cumulative and lifecycle greenhouse gas impacts of offshore wind projects, and that the FEIS assumed, without analysis, that offshore wind generation would not itself add to global warming over the next 10 years and that offshore wind would displace natural gas generation and not other forms of renewable energy generation. The complaint also alleged that the FEIS did not take a hard look at warming generated by the project’s alteration of wind flow. The plaintiffs contended that the defendants should have evaluated a no-action alternative’s climate effects and effects on onshore renewable energy. In addition, the complaint alleged that the FEIS failed to properly analyze climate change effects on hurricanes that may impact the project and that the FEIS was “riddled with over-assessments of the purported benefits” of the project, including climate benefits. Another climate change-related allegation was an alleged failure to consider the impacts of the project and climate change on the food supply for the North Atlantic Right Whale. Allco Renewable Energy Ltd. v. Haaland, No. 1:21-cv-11171 (D. Mass., filed July 18, 2021).

Short-Term Measures Sought to Protect Steelhead and Salmon

Environmental groups and the State of Oregon filed motions for preliminary injunctions in the long-standing lawsuit challenging biological opinions prepared under the Endangered Species Act for the continued operation and maintenance of the Columbia River System. The most recent biological opinion (BiOp) and related record of decision (ROD) were issued in September 2020 after district courts invalidated six earlier biological opinions. Oregon argued that many errors identified by the court when it invalidated prior BiOps were repeated in the 2020 BiOp and ROD and that the “precarious” status quo of salmon and steelhead fish had worsened because of low population abundances and climate change. Oregon requested short-term measures to protect listed fish while the federal defendants comply with legal obligations. The environmental groups argued that a preliminary injunction was “urgently needed to reduce irreparable harm” to listed steelhead and salmon. They contended that they were likely to succeed on the merits of their claims, including their claim that the defendants failed “to rationally or legally account for the effect of advancing climate change.” American Rivers v. National Marine Fisheries Service, No. 3:01-cv-00640 (D. Or. July 16, 2021).

Other States and NRDC Weighed in on States’ Requested Intervention as Defendants in Juliana Case; Plaintiffs Said They Would Not Seek Nominal Damages

In Juliana v. United States, briefing was completed on the motion by states led by Alabama to intervene as defendants for the limited purpose of contesting the district court’s jurisdiction and to prevent a potential “collusive settlement” between the plaintiffs and the federal defendants. Six other states, led by New York, filed a motion for leave to file a brief as amici in support of the plaintiffs; they asserted an “interest in correcting proposed intervenors’ erroneous assertions about purported collusion between the parties” in two lawsuits referenced in the motion to intervene, as well as an interest in correcting the proposed intervenor states’ “incomplete picture of the effects that federal action to address climate change will have on States and state residents.” Natural Resources Defense Council (NRDC) also sought to file an amicus brief that argued that the court should deny the intervention motion without prejudice. NRDC reasoned that the states would not be prejudiced if intervention were deferred until the time of any proposed consent decree that might affect the states’ interests. Other developments in the case included the plaintiffs’ filing of a supplement to their motion for leave to file an amended complaint. The modifications removed a plaintiff and substituted Biden administration officials as defendants. The plaintiffs also informed the court in the motion that they had decided not to seek to add nominal damages to their request for relief. On July 16, the federal defendants filed a response to plaintiffs’ notice of supplemental authority regarding four recent Supreme Court decisions that the plaintiffs argued supported their standing; the defendants said the decisions did not affect the Ninth Circuit’s determination that declaratory relief could not on its own redress an injury, and that the court therefore should deny the plaintiffs’ motion for leave to amend. In addition, July 12 was the deadline for the Juliana plaintiffs to file a petition for certiorari in the Supreme Court to seek review of the Ninth Circuit’s decision finding that they lacked standing. Juliana v. United States, No. 6:15-cv-01517 (D. Or.). [Editor’s Note: Due to a technical issue, some recent updates for Juliana v. United States are currently not available on the website.]

North Dakota Challenged Oil and Gas Leasing Moratorium

The State of North Dakota filed a lawsuit in the federal district court for the District of North Dakota seeking review of the Biden administration’s moratorium on federal oil and gas lease sales. North Dakota asserted violations of the Mineral Leasing Act, the Federal Land Policy and Management Act, NEPA, and the Administrative Procedure Act. The State asked the court to compel the federal defendants to hold quarterly lease sales and to prohibit the defendants from canceling lease sales in North Dakota. Two other lawsuits had previously been filed to challenge the pause on leasing, and the Western District of Louisiana issued an order in June blocking the pause on new onshore and offshore leasing. North Dakota v. U.S. Department of the Interior, No. 1:21-cv-00148 (D.N.D., filed July 7, 2021).

Two New Citizen Suits Asserted Failure to Prepare Fuel Terminals for Climate Change

On July 7, 2021, Conservation Law Foundation filed two citizen suits asserting that the defendants’ bulk storage and fuel terminals in New Haven, Connecticut violated the Clean Water Act and Resource Conservation and Recovery Act. The complaints alleged that the defendants had not designed, maintained, modified, or operated their terminals to account for “the numerous effects of climate change,” including sea-level rise and more frequent and more severe storms. Conservation Law Foundation sought declaratory and injunctive relief, civil penalties, environmental restoration and compensatory mitigation, and costs of litigation, including attorney and expert witness fees. Conservation Law Foundation v. Shell Oil Co., No. 3:21-cv-00933 (D. Conn., filed July 7, 2021); Conservation Law Foundation v. Gulf Oil LP, No. 3:21-cv-00932 (D. Conn., filed July 7, 2021).

Pro Se Constitutional Climate Suit Filed in Colorado Federal Court

A Colorado resident filed a pro se lawsuit in the federal district court for the District of Colorado alleging that the United States and other federal defendants violated his fundamental constitutional rights by causing and contributing to the accumulation of greenhouse gases in the atmosphere. The plaintiff previously filed a similar lawsuit in the federal district court for the District of Arizona, which administratively closed the case in August 2019 pending completion of Juliana v. United States. Komor v. United States, No. 1:21-cv-01560 (D. Colo., filed June 9, 2021).

Lawsuit Alleged Failure to Consider Cumulative Climate Change Effects in Grazing Analysis

A lawsuit filed in the federal district court for the District of Arizona alleged that the environmental review for BLM’s revised livestock grazing analysis for the Sonoran Desert National Monument Resource Management Plan failed to address problems with prior analysis identified by the court in an earlier case. The plaintiffs alleged that BLM’s new decision violated the Federal Land Policy and Management Act, the National Landscape Conservation System Act, NEPA, and the National Historic Preservation Act. Among the alleged shortcomings in the NEPA review was an alleged failure to analyze how proposed grazing, combined with the impacts of drought, climate change, and other factors would affect the Monument’s biological and cultural objects. Western Watersheds Project v. U.S. Bureau of Land Management, No. 2:21-cv-01126 (D. Ariz., filed June 29, 2021).

Petitioners Sought Minnesota High Court Review of Enbridge Replacement Pipeline Approvals

Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Honor the Earth, and Sierra Club requested that the Minnesota Supreme Court review the June decision of the Minnesota Court of Appeals that upheld a certificate of need and revised environmental impact statement for Enbridge’s Line 3 Replacements Project. They sought review of two issues: the alleged failure to evaluate the accuracy of long-range energy demand forecasts and the Public Utilities Commission’s finding that the existing Line 3 was in urgent need of replacement for safety reasons. In re Enbridge Energy, LP, Nos. A20-1071, A20-1072, A20-1074, A20-1075, A20-1077 (Minn. July 14, 2021).

Suit Alleged Violations of Hawai‘i Environmental Policy Act in Approvals for Commercial Aquarium Collection

A lawsuit filed in Hawai‘i state court alleged that a revised environmental impact statement for commercial aquarium fishing violated the Hawai‘i Environmental Policy Act. Among other things, the plaintiffs contended that the Board of Land and Natural Resources rejected an initial final environmental impact statement on numerous grounds, including a failure to discuss “the extreme threat of climate change” on reefs and the potential for mitigating harm if the proposed fishery had unanticipated or greater negative effects with climate change—but that the Board failed to reject a revised FEIS that repeated the inadequacies. Kaupiko v. Board of Land & Natural Resources, No. 1CCV-21-0000892 (Haw. Cir. Ct., filed July 13, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

Australian Court Issued Declaration on the Duty of Care to Australian Youth

Eight young people filed a putative class action in Australia’s Federal Court to block a coal project in September 2020. The lawsuit sought an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. The plaintiffs claimed to represent all people under 18, and argued that Federal Minister Sussan Ley has a common law duty of care for young people.

In a May 27, 2021 judgment, the Court established a new duty of care to avoid causing personal harm to young people but declined to issue an injunction to force the Minister to block the coal mine extension. In its judgment, the Court delayed issuing a declaration about the duty of care owed by the minister, and raised a number of questions to the parties about the scope of the duty.

On July 8, 2021, the Court issued a declaration that “The [Minister] has a duty to take reasonable care … to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.” In issuing the declaration, the Court rejected arguments by the Minister to limit the declaration to only the applicants. Instead, the Court declared the duty applied to all Australian young people because both the applicants and Australian young people had the “same interest.” The Court ordered the Minister to pay costs. Sharma and others v. Minister for the Environment (Federal Court of Australia).

Supreme Court of Spain Admitted Second Climate Suit Against the Government

On May 28, 2021, Greenpeace Spain, Oxfam Intermón, Ecologistas en Acción, and Coordinadora de ONG para el Desarrollo filed suit alleging that the Government of Spain’s climate plan was insufficient to meet Paris Agreement goals and the 1.5C temperature target. Spain approved the National Energy and Climate Plan 2021-2030 in March 2021. Plaintiff NGOs challenged the plan both on the grounds that it was not ambitious enough to meet the Paris Agreement’s temperature goals and also because it did not uphold public participation guarantees required for an adequate environmental assessment. On July 1, 2021, the Supreme Court admitted the case. Greenpeace v. Spain II (Supreme Court of Spain).

The case was filed by most of the same plaintiffs as those in a similar case also challenging the National Energy and Climate Plan. In that case, the Supreme Court rejected the defendants’ motion to dismiss for lack of subject matter jurisdiction. The Court found that the approval of the National Energy and Climate Plan did not exhaust plaintiffs’ claims because their claims were broader than simply seeking the passage of the Plan. Instead, they sought an order that the Plan must be more ambitions in order to be aligned with the objectives of the Paris Agreement. The government appealed on June 30 and the plaintiffs responded to the appeal on July 9, 2021.

Suit Filed in South Africa Challenged Offshore Oil and Gas Permits on Climate Grounds

An environmental justice organization, South Durban Community Environmental Alliance, filed suit challenging the South African government’s approval of offshore oil and gas exploration by Eni South Africa and Sasol in June 2021. The suit challenges the authorization on several grounds, including the government’s failure to consider the climate impacts resulting from the exploration in its Environmental Impact Assessment. Plaintiffs allege that this is in violation of the country’s climate change commitments, including those under the Paris Agreement, and its environmental assessment laws. South Durban Community Environmental Alliance v. Minister of Environment and Others (South Africa High Court).

New Zealand Lawyers Challenged Climate Change Commission’s Recommendations

On July 1, 2021, a group of hundreds of New Zealand lawyers, called the Lawyers for Climate Action NZ,  sued the country’s Climate Change Commission alleging that its recommendations to the Minister for Climate Change violated New Zealand law and the Paris Agreement. Plaintiffs allege that the commission’s carbon budgets are inconsistent with holding warming to 1.5C, that it understated required emissions reductions under the Paris Agreement, and that the commission unlawfully relied on the uncertain prospect of paying other countries to reduce their emissions. Together, these actions violated New Zealand’s Climate Change Response Act and its obligations under the Paris Agreement. Lawyers for Climate Action NZ v. The Climate Change Commission (High Court of New Zealand).