September 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 # 149.

FEATURED CASE

D.C. Circuit Found Deficiencies in Climate Change and Environmental Justice Analyses for Texas LNG Export Terminals

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) failed to adequately analyze the climate change and environmental justice impacts of two liquefied natural gas (LNG) export terminals on the Brownsville Shipping Channel in Texas and two pipelines that would carry LNG to one of the terminals. The court dismissed a challenge to a third LNG terminal on the Channel as moot after the developer informed FERC that the project would not go forward. With respect to climate change, the D.C. Circuit found that FERC failed to address the significance of a National Environmental Policy Act (NEPA) regulation that the petitioners argued required use of the social cost of carbon or another methodology to assess the impacts of the projects’ greenhouse gas emissions. The regulation provides that “[i]f … information relevant to reasonably foreseeable significant adverse impacts cannot be obtained … because the means to obtain it are not known, the agency shall include within the environmental impact statement … [t]he agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.” The D.C. Circuit agreed with the petitioners that FERC was required to address the significance of this regulation and directed FERC to explain on remand whether the regulation calls for application of the social cost of carbon protocol or another framework. The D.C. Circuit also found that FERC arbitrarily limited the scope of its environmental justice analysis to communities within two miles of the facilities despite acknowledging that impacts would extend beyond a two-mile radius. Because of the deficiencies in the NEPA analyses, the court also found that FERC’s determinations of public interest and convenience under the Natural Gas Act (NGA) were deficient. The court remanded without vacatur, finding that it was reasonably likely that FERC could redress the deficiencies under NEPA and the NGA on remand and that vacating FERC’s orders “would needlessly disrupt completion of the projects.” In an unpublished judgment, the court rejected the petitioners’ other NEPA arguments regarding project design and capacity and cumulative ozone impacts. Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1045 (D.C. Cir. Aug. 3, 2021); Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, Nos. 20-1093, 20-1094 (D.C. Cir. Aug. 3, 2021).

DECISIONS AND SETTLEMENTS

New Jersey Federal Court Remanded Hoboken’s Climate Case Against Fossil Fuel Companies to State Court

On September 8, 2021, a federal district court in New Jersey granted the City of Hoboken’s motion to remand to state court its climate change lawsuit against oil and gas companies. On September 9, the court granted the defendants’ request for a temporary stay of execution of the remand order. As a threshold matter, the court found that it would not be prudent to wait for federal courts of appeal to issue decisions in fossil fuel companies’ appeals of remand orders in other climate change cases. The court noted that it had no indication of when the courts of appeal would address the issues and, “[c]ritically,” that no such appeal was pending in the Third Circuit. On the merits of removal, the court first found that none of the exceptions to the well-pleaded complaint rule applied. The court held that the City’s claims were not completely preempted by the Clean Air Act and also was not persuaded by the companies’ argument that the claims necessarily arose under federal common law. The court found that, as pled, the complaint was “premised solely on state law” and that City of New York v. Chevron Corp.—in which the Second Circuit affirmed dismissal of New York City’s climate change case against oil and gas companies—“merely suggests that Defendants may ultimately prevail with their federal preemption defense argument,” not that there was a basis for federal subject matter jurisdiction. The New Jersey court also found no basis for Grable jurisdiction, rejecting the companies’ arguments that the City’s claims necessarily raised substantial and actually disputed issues of federal law such as First Amendment issues or issues addressed by federal environmental statutes. The court also found that the “chain of causation” between the defendants’ activities on the outer continental shelf and the City’s claims was “too attenuated” for the Outer Continental Shelf Lands Act to provide a basis for jurisdiction. In addition, the court rejected the federal-officer removal statute, federal enclave jurisdiction, and the Class Action Fairness Act as grounds for removal. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Sept. 8, 2021).

Federal Court Stayed Remand Order in Minnesota’s Climate Case Against Fossil Fuel Industry, Denied Attorney Fees

The federal district court for the District of Minnesota stayed its order remanding Minnesota’s climate change lawsuit against the fossil fuel industry. The court found that a stay was prudent both due to uncertainty about the impacts on the Eighth Circuit’s consideration of the remand order of the Supreme Court’s decision in Mayor & City Council of Baltimore v. BP p.l.c. and the Second Circuit’s decision in City of New York v. Chevron Corp. and also because it was possible there might be a final disposition in state court prior to resolution of the Eighth Circuit’s appeal, which would be a “concrete and irreparable” injury to the defendants. The court also found that judicial economy and conservation of resources weighed in favor of a stay. Because the balance of factors was likely to shift over time, the court said it would reevaluate the stay if the Eighth Circuit appeal was not resolved in 12 months. The court also denied Minnesota’s motion for attorney fees, concluding that “removal advanced critical legal questions that have not yet been resolved by the higher courts.” In the Eighth Circuit, Minnesota filed its response brief supporting affirmance of the remand order, and six amicus briefs were filed in support of affirmance. The amicus briefs were filed by 16 states and the District of Columbia; organizations representing local governments; Natural Resources Defense Council; Public Citizen; scholars of federal relations and federal courts; and individual “scholars and scientists with strong interests, education, and experience in the environment and the science of climate change,” along with non-profit environmental and science organizations. Minnesota v. American Petroleum Institute, No. 0:20-cv-01636 (D. Minn. Aug. 20, 2021), No. 21-1752 (8th Cir.).

Alaska Federal Court Vacated Federal Approvals of Major Oil Development Project in National Petroleum Reserve

The federal district court for the District of Alaska found deficiencies in federal defendants’ reviews and approvals of ConocoPhillips Alaska, Inc.’s (ConocoPhillips’) Willow Master Development Plan in the National Petroleum Reserve in Alaska, which was anticipated to produce approximately 586 million barrels of oil over a 30-year life. The court therefore vacated the U.S. Bureau of Land Management’s (BLM’s) approval of the project and the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion. Under NEPA, the court first found that the Naval Petroleum Reserves Production Act’s 60-day time limit for seeking judicial review of environmental impact statements did not apply and that NEPA claims were therefore timely. The court then found that BLM’s exclusion of foreign emissions in its alternatives analysis was arbitrary and capricious because its rationale “suffers from the same flaws the Ninth Circuit identified” in a December 2020 decision involving offshore drilling in the Beaufort Sea. Although the district court acknowledged that BLM provided “a lengthier explanation” of its reasons for not quantifying foreign emissions than the Bureau of Ocean Energy Management provided in the earlier case, the court found that BLM still did not “thoroughly explain” why an estimate of foreign emissions was impossible. The district court also rejected the defendants’ and ConocoPhillips’ assertion that the failure to quantify foreign emissions was inconsequential because BLM could not have adopted the no-action alternative given ConocoPhillips’ existing leasing rights. In addition, the court found that BLM acted contrary to law by failing to consider a statutory directive to give “maximum protection” to surface values in the Teshekpuk Lake Special Area. Under the Endangered Species Act, the court vacated the FWS’s biological opinion because the incidental take statement lacked “the requisite specificity of mitigation measures for the polar bear” and because the take finding for the polar bear was arbitrary and capricious. The court ruled for the federal defendants under other claims under NEPA and the Clean Water Act, including an argument that the defendants did not take a hard look at cumulative impacts of oil and gas development activities and climate change on fish and polar bears. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:20-cv-00290 (D. Alaska Aug. 18, 2021).

Ninth Circuit Said Appeals in Keystone XL Nationwide Permit Case Were Moot

Because the U.S. Army Corps of Engineers had issued a new nationwide permit (NWP) superseding NWP 12, the Ninth Circuit Court of Appeals dismissed, for lack of jurisdiction, appeals of a district court ruling that NWP 12’s issuance did not comply with Endangered Species Act consultation requirements and that the Corps could not rely on NWP 12 to authorize the Keystone XL pipeline. The Ninth Circuit said the new issuance of NWP 12 rendered the appeals moot and ordered the district court to dismiss the underlying claim. The Ninth Circuit declined, however, to take a position on whether the underlying cases were moot in their entirety and also declined to vacate any district court decisions. The federal district court for the District of Montana is to consider these issues on remand. Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 20-35412 (9th Cir. Aug. 11, 2021).

Federal Court in Missouri Dismissed States’ Challenges to Biden Actions on Social Cost of Greenhouse Gases

The federal district court for the Eastern District of Missouri held that Missouri and 12 other states lacked standing for their claims challenging executive actions related to establishing a social cost of greenhouse gas emissions. The court also held that these claims were not ripe. The court found that due to the “inherently speculative nature” of their alleged harm, the plaintiff states failed to establish any of the three elements of standing: injury in fact, causation, or redressability. The court was not persuaded that the states were “entitled to special solicitude” that would excuse them from meeting these standing requirements, or that their inability to file comments on interim estimates for the social cost of greenhouse gases was a “procedural injury” that afforded them standing. With respect to ripeness, the court found that any impact of the executive actions could not be felt immediately and that the states would have “ample opportunity to bring legal challenges to particular regulations” that allegedly inflicted an imminent, concrete, and particularized injury. The states appealed the dismissal of the case. Missouri v. Biden, No. 4:21-cv-00287 (E.D. Mo. Aug. 31, 2021).

Tennessee Federal Court Allowed Conservation Groups to Proceed with Challenge to TVA Long-Term Contracts

The federal district court for the Western District of Tennessee denied the Tennessee Valley Authority’s (TVA’s) motion to dismiss a lawsuit challenging long-term contracts for electricity between TVA and local utilities. The court concluded that the plaintiffs—three conservation groups—had standing for their claims under the TVA Act of 1933 and NEPA, and also that the court had the authority to review whether the long-term contracts violated the TVA Act. The plaintiffs’ allegations include that the long-term agreements will result in greater emissions of greenhouse gases and other pollutants because insulation from a competitive market will constrain development of renewable energy. The complaint also alleges that the long-term agreements are likely to result in increased energy consumption and will therefore exacerbate greenhouse gas emissions and other impacts. Protect Our Aquifer v. Tennessee Valley Authority, No. 2:20-cv-02615 (W.D. Tenn. Aug. 12, 2021).

Tribal Sovereign Immunity Compelled Dismissal of Challenge to Wind Energy Lease in California

The federal district court for the Southern District of California dismissed a lawsuit challenging the U.S. Bureau of Indian Affairs’ (BIA’s) approval of a lease between the Campo Band of Diegueno Mission Indians (the Tribe) and a renewable energy company for development of a wind energy project. The plaintiffs alleged, among other things, that the environmental impact statement failed to consider the project’s entire life cycle greenhouse gas emissions. In its order dismissing the case, the court concluded that the Tribe was a necessary party that could not be joined due to tribal sovereign immunity. The court further found that allowing the case to proceed absent the Tribe would prejudice the Tribe, and that the developer and BIA could not adequately represent the Tribe’s interests. Given this “unmitigable prejudice,” the court concluded “that this litigation cannot, in good conscience, continue in the Tribe’s absence.” The court rejected the plaintiffs’ contention that the action should be allowed to proceed under the “public rights” exception for litigation that transcends private interests and seeks to vindicate a public right. The plaintiffs appealed the court’s decision, which also overruled certain evidentiary objections and a motion to strike by the plaintiffs. Backcountry Against Dumps v. U.S. Bureau of Indian Affairs, No. 3:20-cv-02343 (S.D. Cal.  Aug. 6, 2021).

New Mexico Federal Court Rejected New NEPA Challenge to Drilling Approvals in Mancos Shale

The federal district court for the District of New Mexico dismissed a lawsuit challenging BLM’s NEPA review of 370 applications for permits to drill (APDs) in the Mancos Shale/Gallup Sandstone formation of the San Juan Basin. The court noted that this case “originated from a separate, extensively litigated case” (see here) challenging more than 300 APDs in which the Tenth Circuit ultimately found that BLM failed to adequately consider cumulative impacts on water resources in five environmental assessments (EAs) but otherwise rejected the plaintiffs’ claims. BLM subsequently completed an “EA Addendum” to supplement the NEPA analysis and concluded for all APDs that the supplemental analysis in conjunction with the earlier analysis “did not demonstrate that the APDs in question would affect the human environment or result in cumulative impacts not already disclosed.” The district court found that BLM had not predetermined its decision to grant the subject APDs and also concluded that BLM’s supplementation was permissible. The district court noted that the EA Addendum reanalyzed several factors, including cumulative effects of greenhouse gas emissions, “though the Tenth Circuit did not explicitly require it to do so.” The plaintiffs contended that the analysis of greenhouse gas emissions was flawed in several ways, and the court rejected each of these contentions. First, the court said the plaintiffs’ argument that BLM merely quantified greenhouse gas emissions without analyzing them was without merit. Second, the court found that BLM’s decision to use a 100-year time horizon instead of a 20-year timeframe to analyze the impacts of greenhouse gas emissions “does not misrepresent or diminish the impact of its environmental conclusions, and is consistent with the law and other similar federal emissions practices.” Third, the court found that the plaintiffs did not establish that BLM failed to consider the APDs’ cumulative impacts on greenhouse gas emissions. The court characterized the plaintiffs’ argument as a request that the court “require an agency to codify Plaintiffs’ beliefs about climate change and its origins in federal oil drilling in the agency’s NEPA documentation.” Fourth, the court found that NEPA did not require that BLM evaluate greenhouse gas emissions in the context of carbon budgets. The court’s analysis of the merits was conducted in the context of a preliminary injunction motion, but the court said further analysis or argumentation would not change its disposition as to the merits and therefore granted the defendants’ request that the plaintiffs’ claims be dismissed with prejudice. Diné Citizens Against Ruining Our Environment v. Bernhardt, No. 1:19-cv-00703 (D.N.M. Aug. 3, 2021).

Rehearing Denied in St. Louis Gas Pipeline Case

The D.C. Circuit Court of Appeals denied pipeline developers’ petitions for panel rehearing and rehearing en banc of the court’s decision vacating the Federal Energy Regulatory Commission’s approvals for a natural gas pipeline in the St. Louis area. Environmental Defense Fund v. Federal Energy Regulatory Commission, No. 20-1017 (D.C. Cir. Aug. 5, 2021).

Minnesota Court Affirmed Water Quality Certification for Line 3 Replacement Project

The Minnesota Court of Appeals affirmed the issuance of a water quality certification under Clean Water Act Section 401 for the Line 3 replacement project proposed by Enbridge Energy LP. The project involves replacing an existing pipeline that transports crude oil with a new pipeline using a different route. As a threshold matter, the Court of Appeals rejected the argument that the issuance of a final Section 404 permit for the Line 3 project mooted the appeal. On the merits, the court found that the Section 401 certification was not affected by legal error and was supported by substantial evidence in the record. Among the arguments rejected by the court was the contention that the Minnesota Pollution Control Agency erred by failing to consider the effects of climate change in its analysis of whether the project would violate state water quality standards. The court said this argument did not identify a rule that was allegedly violated but instead challenged “the adequacy of the agency’s analysis of relevant facts in evaluating potential environmental effects.” The court therefore found that it was required to defer to the agency’s application of technical knowledge and expertise. In re Enbridge Line 3 Replacement Project Section 401 Water Quality Certification, No. A20-1513 (Minn. Ct. App. Aug. 30, 2021).

Minnesota Court of Appeals Upheld Approvals for Utility’s Stake in Wisconsin Power Plant

The Minnesota Court of Appeals affirmed the Minnesota Public Utilities Commission’s approval of a utility’s affiliated-interest agreements related to the utility’s stake in a new natural gas-fired power plant in Wisconsin. In a previous decision, the Court of Appeals found that the Commission erred by approving the agreements without complying with the Minnesota Environmental Policy Act. The Minnesota Supreme Court reversed this ruling. On remand from the Supreme Court, the Court of Appeals addressed the remaining issues of whether substantial evidence supported the Commission’s determinations that the power plant was needed and that the power plant would serve the public interest better than a renewable-resource alternative. The Court of Appeals found that substantial evidence supported the Commission’s determinations that the power plant was needed as a low-cost source of energy and because its dispatchable capacity provided a hedge against market pricing. The Court of Appeals also rejected the argument that the Commission’s conclusion that the power plant’s impact on overall system costs would be less than the comprehensive costs of wind or solar alternatives was not supported with sufficient detail and evidence. In re Minnesota Power’s Petition for Approval of EnergyForward Resource Package, Nos. A19-0688, A19-0704 (Minn. Ct. App. Aug. 23, 2021).

Montana Court Allowed Youth Plaintiffs to Proceed with Constitutional and Public Trust Climate Claims

A Montana District Court concluded that youth plaintiffs had standing for their claims that the Montana State Energy Policy and the “Climate Change Exception” to the Montana Environmental Policy Act (MEPA) violate the Montana Constitution—which includes provisions declaring that Montana citizens possess an inalienable right to a clean and healthful environment—and the public trust doctrine. The Climate Change Exception provides that environmental review under MEPA may not include “actual or potential impacts that are regional, national, or global in nature.” The court found that the plaintiffs sufficiently alleged that their alleged harms were caused by carbon emissions for which the State defendants were responsible, that they had “sufficiently raised a factual dispute as to whether the State Energy Policy was a substantial factor in causing Youth Plaintiffs’ injuries,” and that the plaintiffs sufficiently alleged that actions pursuant to the Climate Change Exception implicated their right to a clean and healthful environment. The court further found that the harms would be redressable by declaratory relief. The court agreed with the defendants, however, that injunctive relief ordering a remedial plan or an accounting of greenhouse gas emissions would violate the political question doctrine. The court rejected the argument that the plaintiffs failed to exhaust administrative remedies, finding that the plaintiffs could bring a direct action in court without first seeking administrative review. Held v. State, No. CDV-2020-307 (Mont. Dist. Ct. Aug. 4, 2021).

NEW CASES, MOTIONS, AND OTHER FILINGS

Supreme Court to Consider Whether to Hear Appeals of D.C. Circuit Decision Vacating Trump Administration’s Repeal and Replacement of Clean Power Plan

Briefing was completed on August 24, 2021 on the four petitions for writ of certiorari seeking review of the D.C. Circuit’s January 2021 decision vacating the U.S. Environmental Protection Agency’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The petitions were distributed for the justices’ conference of September 27. West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (U.S. Aug. 5, 2021).

Supplemental Appellate Briefing Continued on Removal Issues in Baltimore and Rhode Island Cases; Fossil Fuel Companies Moved to Dismiss King County’s Case in Washington Federal Court

In addition to the remand of the City of Hoboken’s climate change case and the order staying the remand order in Minnesota’s case (both of which are discussed above), the following developments have occurred in the climate change cases brought against the fossil fuel industry by state and local governments:

• In Baltimore’s case, both the fossil fuel companies and Baltimore have filed supplemental briefs in the Fourth Circuit Court of Appeals in the companies’ appeal of the order remanding the case to state court. The fossil companies argue that Baltimore’s claims arise under federal law and also that the action was removable pursuant to the Outer Continental Shelf Lands Act because it has a connection with the companies’ activities on the outer continental shelf. Several amicus briefs were filed in support of the companies by states led by Indiana, the U.S. Chamber of Commerce, trade groups led by the National Association of Manufacturers, and Energy Policy Advocates. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir.).
• In Rhode Island’s case, briefing also continued in the companies’ appeal of the remand order. As in Baltimore’s appeal, states led by Indiana, trade groups, and the U.S. Chamber of Commerce filed amicus briefs in support of the companies. After Rhode Island filed its supplemental brief on August 27, in which it argued that its claims did not arise under federal common law, and were not subject to removal under the Outer Continental Shelf Lands Act, amicus briefs were filed in support of remand by other states and by Natural Resources Defense Council, organizations representing local governments, and foreign relations and federal court scholars. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
• On August 23, 2021, fossil fuel companies filed motions to dismiss King County’s lawsuit in the federal district court for the Western District of Washington. In their motion to dismiss for failure to state a claim, the companies argued that King County’s case was “virtually identical” to New York City’s case, and that the district court should therefore dismiss it for the same reasons that the Second Circuit affirmed dismissal of New York’s case (i.e., because federal common law applied but was displaced by the Clean Air Act with respect to domestic emissions and because foreign policy considerations foreclosed any federal common law remedy for claims related to foreign emissions). The companies argued that even if state law did apply, the Clean Air Act and foreign affairs doctrine would preempt the claims. In their second motion, the companies argued that they were not subject to personal jurisdiction in Washington. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash.).
• On August 4, 2021, the federal district court for the Northern District of California stayed proceedings in Oakland’s and San Francisco’s cases, in which a renewed motion to remand and motion to amend are pending. The court directed counsel to inform the court when the Ninth Circuit issues a ruling in County of San Mateo v. Chevron Corp., in which the Ninth Circuit is considering the fossil fuel companies’ additional grounds for removal on remand from the Supreme Court’s ruling that the scope of appellate review of remand orders extends beyond federal-officer removal when federal-officer removal is one of the removing defendants’ bases for removal. People of State of California v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. Aug. 4, 2021).
• Briefing was completed on New York City’s motion to remand its consumer protection lawsuit against the fossil fuel industry to state court. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y.).

 

Environmental Groups Challenged Environmental Review for Offshore Oil and Gas Lease Sale

Four environmental groups filed a lawsuit in federal court in the District of Columbia challenging federal defendants’ decision to hold an offshore oil and gas lease sale in the Gulf of Mexico. The complaint asserted claims under NEPA and the Administrative Procedure Act, alleging, among other flaws, that the NEPA analysis “incredulously asserts that burning” up to 1.12 billion barrels of oil and 4.4 trillion cubic feet of natural gas that would result from the lease sale “will not contribute to climate change” and will “reduce greenhouse gas emissions” compared to a no-action alternative. The plaintiffs alleged that this “irrational conclusion” was based “on the idea that foreign substitution effects would increase emissions if the U.S. did not hold a lease sale,” an assumption that the plaintiffs was not supported by available information. The plaintiffs also contended that the defendants should have updated the almost five-year-old NEPA analysis to include “new information that demonstrates additional oil and gas leasing will exacerbate the climate crisis to an extent that the Bureau did not consider in its previous NEPA analysis.” The complaint also alleged that new information revealed other risks and threats, including safety issues and harms to frontline communities and endangered species. Friends of the Earth v. Haaland, No. 1:21-cv-02317 (D.D.C., filed Aug. 31, 2021).

Nantucket Residents Challenged Federal Approvals of Offshore Wind Project

Nantucket residents filed a lawsuit in federal court in Massachusetts alleging that the Bureau of Ocean Energy Management’s environmental review of the Vineyard Wind 1 offshore wind project did not comply with NEPA. The complaint alleged deficiencies in the environmental impact statement’s consideration of greenhouse gases (GHG) , including inadequate analysis and disclosure of construction-related emissions and operational emissions. The complaint also alleged that BOEM failed to account for “GHG reduction benefits of whales and how the Project and the other offshore wind projects, by causing whale mortality, will cause those benefits to disappear.” In addition to their NEPA claim, the plaintiffs asserted that the federal defendants violated the procedural and substantive requirements of the Endangered Species Act by failing to ensure that the project would not jeopardize the survival of the North Atlantic Right Whale and other federally listed species. ACK Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, No. 1:21-cv-11390 (D. Mass., filed Aug. 25, 2021).

Environmental Groups’ Challenge to Development Project in California Cited Protected Species’ Vulnerability to Climate Change

Two environmental groups filed a lawsuit in the federal district court for the Eastern District of California challenging federal authorizations for a 314-acre multi-use development in the City of Chico. They asserted claims under the Endangered Species Act, NEPA, the Clean Water Act, and the Administrative Procedure Act. The allegations in support of their Endangered Species Act claims included that the U.S. Fish and Wildlife Service had ignored best available science when establishing the environmental baseline for its jeopardy analysis for listed species (vernal pool shrimp and meadowfoam), including information that the species’ habitats were adversely affected by and increasingly vulnerable to climate change. AquAlliance v. U.S. Fish & Wildlife Service, No. 2:21-cv-01527 (E.D. Cal., filed Aug. 25, 2021).

Lawsuit Challenged Determination that Freshwater Minnow Did Not Warrant Protection as Endangered or Threatened Species

Center for Biological Diversity filed a lawsuit challenging the U.S. Fish and Wildlife Service’s determination that the Clear Lake hitch—a large freshwater minnow native to Clear Lake in Lake County, California—was not warranted for listing under the Endangered Species Act. The complaint alleged that the decision was unlawful and failed to rely on the best scientific and commercial data available, including by arbitrarily ignoring the FWS’s own analysis that hitch “are critically vulnerable to climate change.” The complaint asserted claims under the Endangered Species Act and the Administrative Procedure Act. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 3:21-cv-06323 (N.D. Cal., filed Aug. 17, 2021).

Trade Groups Filed New Lawsuit Challenging Moratorium on Federal Oil and Gas Lease Sales

American Petroleum Institute and other national, international, and regional trade groups filed a lawsuit in federal district court in Louisiana seeking to compel federal defendants to proceed with onshore and offshore oil and gas lease sales. The trade groups alleged that the defendants had implemented a moratorium on the lease sales in violation of the Administrative Procedure Act, the Mineral Leasing Act, the Federal Land Policy and Management Act, the Outer Continental Shelf Lands Act, and NEPA. American Petroleum Institute v. U.S. Department of the Interior, No. 2:21-cv-02506 (W.D. La., filed Aug. 16, 2021).

Challenge to Crude Oil Pipeline Voluntarily Dismissed After Developer Abandoned Project

On August 13, 2021, three environmental organizations voluntarily dismissed their federal lawsuit challenging the U.S. Army Corps of Engineers’ authorization of the Byhalia crude oil pipeline under Nationwide Permit 12. The organizations’ notice reported that the pipeline developer had abandoned the project and the approvals at issue in the litigation. Memphis Community Against Pollution Inc. v. U.S. Army Corps of Engineers, No. 2:21-cv-02201 (W.D. Tenn. Aug. 13, 2021).

Plaintiffs Reported Agreement in Principle Regarding Settlement of Challenges to Oil and Gas Lease Sales in Western U.S.

In three cases challenging oil and gas lease sales in the western United States, the plaintiffs asked the federal district court for the District of Columbia to stay the proceedings for 60 days to facilitate a negotiated final resolution of the cases. They reported that they had reached “an agreement in principle on a framework for a settlement agreement that would result in the stipulated dismissal” of the cases. The federal defendants did not oppose the motion, but certain intervenors opposed the stays on the grounds that challenges to some of the lease sales were untimely and that the court therefore should resolve intervenor American Petroleum Institute’s motions to dismiss those claims in the interests of vindicating the purposes served by the Mineral Leasing Act’s 90-day limitations period for review of decisions involving oil and gas leases. The federal defendants previously sought voluntary remand of the cases. WildEarth Guardians v. Haaland, No. 16-cv-1724 (D.D.C.), WildEarth Guardians v. Haaland, No. 21-cv-175 (D.D.C.), WildEarth Guardians v. Haaland, No. 20-cv-56 (D.D.C.).

Federal Government Proceeded with Offshore and Onshore Oil and Gas Leasing but Appealed Louisiana Federal Court Injunction

On August 16, 2021, federal defendants filed a notice of their appeal of a Louisiana federal district court’s decision granting plaintiff states’ motion for a preliminary injunction barring the Biden administration from implementing a pause on new oil and natural gas leases on public lands or in offshore waters. A week earlier, the plaintiff states filed a motion for order to show cause and to compel compliance with the preliminary injunction, arguing that the defendants violated the court’s order by refusing to hold new onshore lease sales and move forward with offshore lease sales. The defendants opposed this motion, contending that they had been working over the last 10 weeks to prepare to hold onshore and offshore leases, and that they were “on track” to publicly announce onshore and offshore leasing activity by August 31. In a press release on August 24, the Interior Department announced steps to comply with the district court’s injunction and also said it would undertake “a programmatic analysis to address what changes in the Department’s programs may be necessary to meet the President’s targets of cutting greenhouse gas emissions in half by 2030 and achieving net zero greenhouse gas emissions by 2050.” On August 31, BOEM issued a record of decision for Lease Sale 257. Also on August 31, BLM sought public input on parcels proposed for potential oil and gas leasing. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La.).

Lawsuit Alleged that Air Quality Management District’s Rule Was Unlawful Regulation of Truck Emissions

California Trucking Association (CTA) filed a lawsuit in federal court in California seeking to block implementation of a rule adopted by the South Coast Air Quality Management District (SCAQMD). CTA alleged the rule was intended “to control mobile source emissions by imposing preempted [zero emission or near zero emission (ZE/NZE)] emissions standards on medium to heavy-duty trucks used at warehouses, backed by the threat of economic sanctions styled as a mitigation fee.” The complaint alleged that the rule imposed compliance obligations on warehouses based on the number, type, and emission characteristics of trucks that visit the warehouse facilities. CTA said SCAQMD had styled the rule as a lawful indirect source review rule but that it was “not truly concerned with indirect sources” such as vehicle trips by workers traveling to and from warehouse, construction equipment used to construct new warehouses, or direct emissions from warehouses. Instead, CTA alleged, the rule was “entirely about the trucks” and was therefore preempted by the Clean Air Act and the Federal Aviation Administration Authorization Act of 1994. CTA also alleged that the rule violated state air laws and constituted an unlawful tax. California Trucking Association v. South Coast Air Quality Management District, No. 2:21-cv-06341 (C.D. Cal., filed Aug. 5, 2021).

Lawsuit Challenged Removal of Seasonal Restrictions on “Hopper Dredging” in North Carolina Harbors

A lawsuit filed in the federal district court for the Eastern District of North Carolina alleged that the U.S. Army Corps of Engineers acted in violation of NEPA and the Administrative Procedure Act when it ended seasonal restrictions on hopper dredging at Wilmington and Morehead City Harbors in North Carolina. The complaint alleged that hopper dredges were “massive vessels that operate like a vacuum cleaner” by sucking up bottom sediment and discharging it into a “hopper” within the vessel until disposal, and that such dredging “poses a unique and often fatal risk to aquatic wildlife.” The complaint alleges that the Corps failed to adequately address or disclose impacts of eliminating the restrictions, including climate change impacts such as “the compounding impacts climate change will have on species, water quality, water temperatures, or the affected project area.” Cape Fear River Watch v. U.S. Army Corps of Engineers, No. 7:21-cv-138 (E.D.N.C., filed Aug. 4, 2021).

Tribe and Nonprofit Groups Challenged Corps of Engineers Permit for Oil Export Terminal Expansion Project in Texas

The Karankawa Kadla Tribe of the Texas Gulf Coast and two nonprofit organizations filed a lawsuit against the U.S. Army Corps of Engineers in the federal district court for the Southern District of Texas challenging issuance of a Clean Water Act Section 404 permit for expansion of the Moda Ingleside Energy Center, a crude oil export terminal in the Corpus Christi Ship Channel. The plaintiffs asserted violations of the Clean Water Act, NEPA, and the Administrative Procedure Act, including a failure to consider the expansion’s contribution to climate change. Indigenous Peoples of the Coastal Bend v. U.S. Army Corps of Engineers, No. 2:21-cv-00161 (S.D. Tex., filed Aug. 3, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

Australian Court Ordered New South Wales EPA to Develop Climate Regulations

Bushfire Survivors for Climate Action brought a civil enforcement proceeding in April 2020 to compel the New South Wales Environmental Protection Authority (EPA) to regulate greenhouse gas emissions. The plaintiffs, represented by the New South Wales Environmental Defenders Office, are Australians who allege that they have been harmed by bush fires made likely or more intense by climate change. The case was brought under the New South Wales Protection of the Environment Operations Act 1997 (PEOA), which requires the EPA to “develop environmental quality objectives, guidelines and policies to ensure environment protection.”

On August 26, 2021, the Court ordered the EPA “to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.” The Court found that the PEOA’s duty to develop environmental protection instruments includes the duty to develop climate change protection instruments. The Court pointed to evidence presented by plaintiff’s expert Professor Penny Sackett, and the Intergovernmental Panel on Climate Change reports which she relied on, to conclude that “the threat to the environment of climate change is of sufficiently great magnitude and sufficiently great impact as to be one against which the environment needs to be protected.” The EPA had failed to fulfill its duty to protect from this threat because none of the instruments it presented adequately provided for protection from climate change. The documents it presented either were not prepared by the EPA or were “directed towards ancillary or insignificant causes or consequences of climate change.” Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority (New South Wales Land and Environment Court).

Appellate Court in Brazil Rejected Lower Court’s Transfer of a Case on the Grounds that Climate Litigation Is Distinct from Other Types of Environmental Litigation

The Institute of Amazonian Studies (Instituto de Estudos Amazônicos – IEA) filed a Public Civil Action (class action) against the Federal Government of Brazil in October 2020, seeking recognition of a fundamental right to a stable climate for present and future generations under the Brazilian Constitution, and seeking an order to compel the federal government to comply with national climate law. Plaintiffs allege that the federal government has failed to comply with its own action plans to prevent deforestation and mitigate and adapt to climate change, violating national law and fundamental rights.

The Federal District Court of Curitiba issued an order rejecting jurisdiction and transferring the case to the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas, on account of the alleged connection between this case and another case in that court. The other case involves a dispute over whether the government adequately implemented measures to combat those who put the Amazon forest and its ecological hotspots under threat during the Covid-19 pandemic. Plaintiffs appealed the transfer decision to the 4th Federal Regional Court.

On August 20, 2021, the appellate 4th Federal Regional Court suspended the lower court decision to transfer the case and returned the case to the Federal District Court of Curitiba. The Court found that this case and the ecological hotspots case “present quite different typology and structure, specialized instruments and distinct political-legal approaches, in addition to the fact that their object, cause of action and demands do not coincide.” The Court found that this case has as its central objective to put pressure on the legislative and executive branches to ensure a stable climate. The ecological hotspots case, on the other hand, addresses matters related to environmental law, and does not have a central theme linked to Brazilian climate legislation. The decision also includes a lengthy discussion of the unique nature and importance of climate litigation. Institute of Amazonian Studies v. Brazil (Brazil 4th Federal Regional Court).

Suit Filed in Australia Alleged Oil and Gas Company Santos Misled Investors and Consumers on Its Climate Commitments

On August 25, 2021, Australasian Centre for Corporate Responsibility (ACCR), a shareholder advocacy NGO, sued Australian oil and gas company Santos over its claims that it provides clean energy natural gas and has a plan for net zero emissions by 2040. According to news reports, ACCR raised two major claims. First, ACCR alleges that Santos’ claims that natural gas is “clean fuel” that provides “clean energy” misrepresents the true effect of natural gas on the climate, including the large releases of carbon dioxide and methane during extraction and burning. Second, ACCR alleges that Santos’ claims that it has a clear and credible plan to achieve net zero emissions by 2040 are misleading. ACCR alleges that Santos plans to expand its natural gas operations and that the plan to achieve net zero emissions depends on undisclosed assumptions about the effectiveness of carbon capture and storage processes. The suit alleges that these misrepresentations are in violation of Australian consumer protection and corporations laws. Australasian Centre for Corporate Responsibility v. Santos (Federal Court of Australia).