Climate Change Litigation Chart Updates – July 2016

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 at gmail dot com.

Here are the additions to the litigation charts (Update #88).

FEATURED CASE

Eighth Circuit Panel Agreed That Minnesota Low-Carbon Power Law Was Unlawful But Disagreed as to Why

The Eighth Circuit Court of Appeals affirmed a district court’s conclusion that Minnesota’s Next Generation Energy Act (NGEA) was unlawful. The NGEA barred importing energy from a “new large energy facility” outside Minnesota or entering into new long-term power purchase agreements, where such activities would contribute to statewide carbon dioxide emissions. Only one judge on the Eighth Circuit panel agreed with the district court conclusion that the statute constituted impermissible extraterritorial regulation under the dormant Commerce Clause. The other two judges concluded that the law was preempted by the Federal Power Act, with one of the two judges also concluding that the law conflicted with the Clean Air Act. A blog post about this decision appears here. North Dakota v. Heydinger, Nos. 14-2156, 14-2251 (8th Cir. June 15, 2016): added to the “Challenges to State Action” slide.

DECISIONS AND SETTLEMENTS

On June 29, 2016, Exxon Mobil Corporation (ExxonMobil) and the Attorney General for the United States Virgin Islands (USVI) told the federal district court for the Northern District of Texas that they had reached an agreement pursuant to which the Attorney General would withdraw the subpoena issued to ExxonMobil in March 2016 and ExxonMobil would dismiss its lawsuit against the Attorney General. In the lawsuit, ExxonMobil had alleged that the USVI Attorney General’s subpoena—issued the investigation under the territory’s Criminally Influenced and Corrupt Organizations Act into suspected misrepresentations regarding ExxonMobil’s contributions to climate change—violated ExxonMobil’s constitutional rights and common law due process. The agreement came eight days after the federal court denied ExxonMobil’s motion to remand the action to state court. A day after the parties notified the Texas federal court of their agreement, a law firm representing the Virgin Islands sent a letter to counsel for the Competitive Enterprise Institute (CEI) providing notice that it would withdraw the third-party subpoena issued to CEI as part of the USVI ExxonMobil climate investigation. CEI then asked the District of Columbia Superior Court for leave to file a “Notice of Supplemental Authority” in support of its special motion to dismiss and motions for sanctions and costs and attorney’s fees. CEI said the withdrawal of the ExxonMobil subpoena confirmed the “pretextual nature” of the USVI Attorney General’s investigation, raised “serious questions about the veracity” of the Attorney General’s representations to the D.C. court, and supported the argument that the Attorney General’s demands on CEI were unsupported by need. Exxon Mobil Corp. v. Walker, No. 4:16-CV-00364-K (N.D. Tex. joint stipulation June 29, 2016); United States Virgin Islands Office of the Attorney General v. ExxonMobil Oil Corp., No. 2016 CA 2469 (D.C. Super. Ct. consent motion for leave to file notice of supplemental authority June 30, 2016): added to the “Regulate Private Conduct” slide.

In Two Challenges to LNG Terminals, D.C. Circuit Upheld FERC’s Environmental Reviews, Left Door Open for Challenges of Energy Department Authorizations of Natural Gas Export

The D.C. Circuit Court of Appeals ruled against environmental groups in two challenges to Federal Energy Regulatory Commission (FERC) authorizations of liquefied natural gas (LNG) export facilities. The environmental groups had argued that FERC’s review of the projects under the National Environmental Policy Act (NEPA) did not fully consider the environmental consequences of FERC’s authorizations of the facilities’ construction, including impacts of induced natural gas production. In one case, in which Sierra Club and Galveston Baykeeper challenged FERC’s authorization of modifications to facilities in Texas to support LNG export, the D.C. Circuit held that Sierra Club had established standing, rejecting FERC’s argument that petitioners were required to tie their injury to the increase in natural gas production allegedly caused by FERC’s actions. The D.C. Circuit also said that the challenge to FERC’s approvals was not mooted by reports prepared by the Department of Energy (DOE) on environmental consequences of LNG production and export. On the merits, however, the D.C. Circuit held that FERC did not have to consider the indirect effects—including potential increases in domestic natural gas production—of exporting LNG because only DOE had authority to license the export of LNG from the facilities. The court said that FERC had “reasonably explained that the asserted linkage [between induced production and the FERC approvals] was too attenuated to be weighed” in FERC’s NEPA review. The D.C. Circuit also upheld FERC’s analysis of cumulative impacts, rejecting the contention that FERC should have conducted a “nationwide analysis” of other pending or approved LNG export terminals. The D.C. Circuit also declined to consider the petitioners’ argument that emissions from the LNG facilities’ electricity use should have been disclosed in pounds per megawatt-hour instead of in tons per year. The D.C. Circuit said it was without jurisdiction to consider this argument because it had not been raised in the underlying FERC proceeding. In the second case, in which Sierra Club challenged FERC’s authorization of increased production at a Louisiana LNG terminal, the court again held that Sierra Club had standing. The court said Sierra Club had satisfied the causation and redressability requirements for standing based on harm to a member’s aesthetic and recreational interests if the volume of tanker traffic to and from the terminal increased. As with the FERC authorizations for the Texas LNG facility, the court concluded, however, that FERC’s authorization of increases in production capacity were “not the legally relevant cause of the indirect effects Sierra Club raises.” The court stated: “Sierra Club, of course, remains free to raise these issues in a challenge to the Energy Department’s NEPA review of its export decision. Nothing in our opinion should be read to foreclose that challenge or predetermine its outcome.” The court also concluded that it lacked jurisdiction to consider Sierra Club’s arguments regarding FERC’s cumulative impacts analysis because Sierra Club had not raised the issue in its motion for rehearing before FERC. The court also rejected the cumulative impact argument on the merits for the same reasons given in the decision on the Texas facility. Sierra Club v. Federal Energy Regulatory Commission, No. 14-1275 (D.C. Cir. June 28, 2016); Sierra Club v. Federal Energy Regulatory Commission, No. 14-1249 (D.C. Cir. June 28, 2016): added to the “Stop Government Act/NEPA” slide.

Tenth Circuit Dismissed Mining Company Appeals of Coal Mine NEPA Decisions

The Tenth Circuit Court of Appeals dismissed an appeal by two mining companies of a Colorado district court decision that said the United States Office of Surface Mining Reclamation and Enforcement (OSM) had violated NEPA when it approved mining plan modifications for mines owned by the companies. While the appeal was pending, OSM completed new NEPA analyses and reapproved the plans, but the mining companies said that OSM’s reapprovals reset the statute of limitations for third-party challenges and included conditions adversely affecting their lease rights and requiring downstream studies. The Tenth Circuit concluded that the appeal was moot because it addressed only the now-superseded OSM actions and did not fall into the “capable of repetition but evading review” exception to the mootness doctrine. WildEarth Guardians v. United States Office of Surface Mining Reclamation & Enforcement, Nos. 15-1186 and 15-1236 (10th Cir. June 17, 2016): added to the “Stop Government Action/NEPA” slide.

The Eighth Circuit Court of Appeals affirmed dismissal on subject matter jurisdiction grounds of a Clean Air Act citizen suit brought by companies that operated steel mills in Arkansas to stop construction of a competitor’s steel mill. The original complaint alleged that the defendant company had failed to satisfy Best Available Control Technology (BACT) requirements, including by conducting an improper greenhouse gas BACT analysis and by improperly eliminating carbon capture and sequestration as a control technology. The Eighth Circuit’s opinion did not address the greenhouse gas-specific allegations of the lawsuit but noted that BACT requirements did not impose ongoing duties to apply BACT and that failure to comply with BACT requirements therefore could not constitute the ongoing or repeated violations required for a citizen suit. Nucor Steel-Arkansas v. Big River Steel, LLC, No. 15-1615 (8th Cir. June 8, 2016): added to the “Regulate Private Conduct” slide.

The Ninth Circuit Court of Appeals denied a petition for rehearing en banc of its ruling upholding the United States Fish and Wildlife Service’s (FWS’s) designation of critical habitat for polar bears. The court said no judge had requested a vote on whether to rehear the matter en banc. Alaska Oil & Gas Association v. Jewell, Nos. 13-35619 (9th Cir. June 8, 2016): added to the “Endangered Species Act” slide.

The Ninth Circuit Court of Appeals affirmed a district court ruling that upheld the United States Bureau of Land Management’s (BLM’s) granting of a right-of-way on federal lands for a wind energy project in San Diego County. The court upheld BLM’s actions under NEPA, as well as under the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Administrative Procedure Act. The Ninth Circuit concluded, among other things, that BLM’s environmental impact statement (EIS) took a hard look at greenhouse gas emissions and global warming. The court found that the EIS’s “passing projection of potential emissions reductions, simply by virtue of the Project’s creation of a new source of renewable energy, is reasonable enough and does not mandate the provision of conclusive proof through additional evidence and analysis beyond that already provided in the EIS.” The court also deferred to BLM’s determination that estimation of greenhouse gas emissions from manufacture and transportation of equipment to the project area would be too speculative. Backcountry Against Dumps v. Jewell, Nos. 14-55666, 14-55842 (9th Cir. June 7, 2016): added to the “Stop Government Action/NEPA” slide.

The United States and Trader Joe’s Company (Trader Joe’s) filed a proposed consent decree in the federal district court for the Northern District of California to resolved alleged violations by Trader Joe’s of Clean Air Act requirements regarding leak repair and recordkeeping for commercial refrigeration equipment. The consent decree would require Trader Joe’s to pay a $500,000 civil penalty and to establish a refrigerant compliance management system, to maintain a company-side average refrigerant leak rate of 12.1% or less, and to use refrigerants with lower global warming potential values in new and remodeled stores. In its announcement of the consent decree, the United States Environmental Protection Agency (EPA) said that the “[t]he total estimated greenhouse gas emissions reductions from this settlement are equal to the amount from over 6,500 passenger vehicles driven in one year, the CO2 emissions from 33 million pounds of coal burned, or the carbon sequestered by 25,000 acres of forests in one year.” The Department of Justice published notice of the proposed consent decree in the June 28 issue of the Federal Register. United States v. Trader Joe’s Co., No. 3:16-cv-03444–EDL (N.D. Cal. complaint and proposed consent decree June 21, 2016): added to the “Regulate Private Conduct” slide.

Federal Court Said Biological Assessment Need Not Consider Cumulative Effects or Climate Change

The federal district court for the District of Oregon upheld actions by the U.S. Forest and Service and U.S. Fish and Wildlife Service authorizing continued livestock grazing on or around the Sycan River in Oregon. The area included recently designated critical habitat for the Klamath River bull trout, which had been designated as threatened under the Endangered Species Act (ESA). Among the arguments rejected by the court was that the Forest Service’s analysis of potential impacts on the bull trout critical habitat in an informal biological assessment was inadequate because it did not fully analyze the cumulative effects of public land grazing with other activities taking place in the area or consider other factors such as climate change. The court said that the ESA imposed no duty on federal agencies to consider cumulative effects in informal consultation, and that the Forest Service therefore “had no obligation to consider cumulative effects at all, let alone in conjunction with the proposed action and climate change.” Oregon Wild v. U.S. Forest Service, No. 1:15-cv-00895 (D. Or. June 17, 2016): added to the “Stop Government Action/Other Statute” slide.

Federal Court Said Former EPA Official Could Testify in Murray Energy Jobs Study Case

The federal district court for the Northern District of West Virginia denied a motion by EPA to disqualify or exclude a former EPA official from testifying in a lawsuit in which the coal company Murray Energy Corporation argues that EPA failed to fulfill its statutory obligation to study the Clean Air Act’s employment impacts. The court said that disqualification was a “drastic remedy” and that EPA had failed to sustain its burden of demonstrating that disqualification was warranted. The court stressed that the official had left EPA more than 10 years ago. The court said it could not discern any part of the official’s report that could be based on confidential information, and indicated there was no merit to the argument that the former official should be disqualified from serving as an expert witness adverse to EPA because he had once worked for the agency. The court also said that EPA’s argument that the former official lacked “scientific, technical or other specialized knowledge” was “ridiculous.” The court further concluded that policy objectives weighed in favor of allowing the former official to testify. Murray Energy Corp. v. McCarthy, No.5:14-cv-00039 (N.D. W. Va. June 17, 2016): added to the “Challenges to Federal Action” slide.

California Federal Court Allowed Plaintiffs to Amend Challenges to Low Carbon Fuel Standard

The federal district court for the Eastern District of California granted in part motions by two sets of plaintiffs to amend their complaints in their “years-long and complex challenge” to California’s Low Carbon Fuel Standard (LCFS). The plaintiffs sought to add constitutional challenges to the current version of the LCFS, which the California Air Resources Board (CARB) amended in November 2015 in response to a state court lawsuit. The court noted that the defendants had not objected to the amendments, except with respect to as-applied constitutional claims made by one set of  plaintiffs. The court agreed with the defendants that, despite the intervening changes to the LCFS, the law of the case foreclosed standing for all but one of the plaintiffs wishing to add the as-applied claims. Rocky Mountain Farmers Union v. Corey, No. 1:09-CV-2234 (E.D. Cal. June 13, 2016): added to the “Challenges to State Action” slide.

EPA Agreed to Respond to Petition Regarding Georgia Biomass Facility by December

EPA and the Partnership for Policy Integrity (PPI) filed a proposed consent decree in the federal district court for the Middle District of Georgia to resolve PPI’s claims that EPA had failed to perform its nondiscretionary duty to respond to PPI’s petition requesting that the agency object to a Title V permit issued by the Georgia Department of Natural Resources for a biomass-fueled power plant in Lamar County. PPI submitted the petition in May 2015 and filed its lawsuit in January 2016. The organization asked EPA to object to the Title V permit because it would not assure compliance with the Clean Air Act. PPI said that EPA should direct that the facility be required to go through the Prevention of Significant Deterioration permitting process. PPI argued, among other things, that the facility was a major source for greenhouse gases and should undergo a BACT analysis. The consent decree would require EPA to sign a response to PPI’s petition by December 16, 2016. Partnership for Policy Integrity v. McCarthy, No 5:16-cv-00038 (M.D. Ga. proposed consent decree May 16, 2016): added to the “Force Government to Act/Clean Air Act” slide.

Texas Supreme Court Cited Global Warming Hypothetical In Rejecting Takings Theory for Municipal Liability for Flooding

The Texas Supreme Court held that municipal governments were not liable under a takings theory for flood damage when they approved development without implementing mitigation measures to address known flood risks. The court withdrew a 2015 opinion in which it had said that homeowners who suffered flood damage had raised an issue of fact in their takings claim. The new majority opinion noted that many public and private amicus curiae had urged rehearing because the homeowners’ theory of liability would “vastly and unwisely expand the liability of governmental entities.” The court described some of the hypothetical situations in which liability might be expanded, including a “disturbing” hypothetical raised by the Harris County Metropolitan Transit Authority that suggested that imposition of liability under a takings theory in the instant case could serve as precedent for holding governments liable for hurricanes allegedly caused by global warming. The court quoted the amicus brief, which stated: “Experts can be hired who will testify that burning fossil fuels raises sea levels and makes storms more intense. Yet governments issue permits allowing exploration and production of fossil fuels, and construction and operation of the power plants that burn them.” Harris County Flood Control District v. Kerr, No. 13-0303 (Tex. June 17, 2016): added to the “Adaptation” slide.

California Appellate Court Said City’s Analysis of Energy Impacts of Costco Store Was Inadequate

The California Court of Appeal found that the City of Ukiah had not sufficiently analyzed the energy impacts of a proposed Costco retail store and gas station in an environmental impact report (EIR) prepared under the California Environmental Quality Act (CEQA). The EIR was certified in December 2013. The court said that the EIR had improperly relied on building code compliance to mitigate construction and operational energy impacts and on mitigation measures to reduce greenhouse gas emissions. The court noted that these shortcomings were similar to inadequacies identified in the Court of Appeals’ decision in February 2014 (several months after the City of Ukiah certified the Costco EIR) in California Clean Energy Committee v. City of Woodland. In that case, the Court of Appeals stated that “[a]lthough there is likely to be a high correlation between reducing greenhouse emissions and energy savings, this court cannot assume the overlap is sufficient under CEQA’s study and mitigation requirements.” After the court issued its City of Woodland decision, the City of Ukiah issued an addendum to the EIR to address energy impacts; the trial court considered this addendum when it upheld the EIR. The Court of Appeals ruled, however, that the addendum “does not cure the prior approval of an inadequate EIR.” Ukiah Citizens for Safety First v. City of Ukiah, No. A145581 (Cal. Ct. App. June 21, 2016): added to the “State NEPAs” slide.

California Appellate Court Said Environmental Review for Shopping Center Was Inadequate

The California Court of Appeal ruled that the environmental review for a shopping center in the City of Victorville did not comply with CEQA. The court found that substantial evidence did not support the City’s finding that the project was consistent with a provision of the general plan requiring new commercial and industrial projects to generate electricity on-site to the maximum extent feasible. The court also found that the record did not support a finding that the project would comply with the general plan’s energy efficiency objective and therefore did not support the City’s conclusion that the project would not have significant air quality impacts from greenhouse gas emissions. Spring Valley Lake Association v. City of Victorville, No. D069442 (Cal. Super. Ct. May 25, 2016): added to the “State NEPAs” slide.

Arizona Court Ordered Release of Climate Scientists Emails

The Arizona Superior Court ordered the Arizona Board of Regents to produce previously withheld emails of two University of Arizona climate scientists pursuant to the State’s public records law. The Board had asserted that it was entitled to withhold the emails from its response to a public records request from the Energy & Environment Legal Institute because the emails were prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary. The court issued its ruling on remand from an appellate court decision that said the court had applied a too-deferential standard in an earlier review of the Board’s determinations to withhold the emails. In the new ruling, the court said it was cognizant of the concerns regarding the “chilling effect” disclosure could have, but it concluded that the potential harm was “speculative at best” and did not overcome the presumption favoring disclosure. The court indicated that the establishment of an “academic privilege exception” to the public records law was an issue for the legislature, not the courts. A blog about this decision appears here. Energy & Environment Legal Institute v. Arizona Board of Regents, No. C20134963 (Ariz. Super. Ct. June 14, 2016): added to the “Climate Protesters and Scientists” slide.

California Court Ruled That CARB’s Environmental Review of Amendments to Heavy-Duty Vehicle Standards Was Improper

A California Superior Court ruled in favor of the challengers to amendments adopted in 2014 to the 2010 emissions standards for on-road heavy duty diesel vehicles. The amendments allowed small fleets of trucks and low-use vehicles extra time to come into compliance with the standards. The court held that CARB had engaged in post hoc environmental review by approving the amendments before it finished its CEQA review. The court also found that there was substantial evidence supporting a fair argument that the amendments would have a significant effect on the environment, including on criteria pollutant and greenhouse gas emissions. The court said that CARB used an improper baseline when it used existing environmental conditions and ignored the 2010 regulations. John R. Lawson Rock & Oil, Inc. v. California Air Resources Board, No. 14CECG01494 (Cal. Super. Ct. June 7, 2016): added to the “Challenges to State Action” slide.

California Court Invalidated Delta Management Plan, But Rejected Argument That Plan’s Sea Level Rise Assumptions Were Flawed

A California Superior Court invalidated the long-term management plan for the Sacramento-San Joaquin Delta but was not persuaded by an argument that the plan relied on sea level rise projections that were too high and not based on best available science. The management plan was prepared by the Delta Stewardship Council pursuant to the Sacramento-San Joaquin Delta Reform Act of 2009. A draft conservation strategy report was based on an assumption of a rise in sea level of 55 inches over the next 50 to 100 years, a projection also referenced in the Act. While petitioners argued that data in the report predicted a rise of only 13.8 inches by 2050 and 35 inches by 2100, the court noted that the 55-inch level was supported in other studies cited by the Council. Delta Stewardship Council Cases, JCCP No. 4758 (Cal. Super. Ct. ruling on motions for clarification and tentative ruling May 18, 2016): added to the “Stop Government Action/Other Statutes” slide.

NEW CASES, MOTIONS, AND NOTICES

TransCanada Filed Arbitration Request Under NAFTA, Seeking More Than $15 Billion for Keystone Permit Denial

TransCanada Corporation and TransCanada PipeLines Limited submitted a formal request for arbitration seeking damages arising from the United States government’s denial of a presidential permit for the Keystone XL Pipeline. The companies asserted that the U.S. had breached its obligations under the North American Free Trade Agreement (NAFTA), including under Articles 1102 (National Treatment), 1103 (Most-Favored Nation Treatment), 1105 (Minimum Standard of Treatment), and 1110 (Expropriation and Compensation). The two Canadian companies submitted claims for damages of more than $15 billion on their own behalf as well as on behalf of U.S. companies owned or controlled by the Canadian companies. They sought to arbitrate the dispute before the International Centre for Settlement of Investment Disputes. The companies asserted that the U.S. had unjustifiably delayed the decision on the pipeline based on “arbitrary and contrived” excuses; that the unjustified denial of the permit was based not on the merits of the application but on “how the international community might react to an approval in light of [the] erroneous perception that the pipeline would result in higher GHG emissions”; and that the U.S. had unjustifiably discriminated against the Keystone XL Pipeline, having previously approved pipeline applications from other investors.TransCanada Corp. v. Government of the United States of America (request for arbitration June 24, 2016): added to the “Challenges to Federal Action” slide.

Utility Air Regulatory Group, American Public Power Association, and 23 states or state agencies or officials filed petitions for review in the D.C. Circuit Court of Appeals challenging the United States Environmental Protection Agency’s (EPA’s) denial of petitions for reconsideration of its new source performance standards for greenhouse gas emissions from power plants. EPA published notice of its denial of the petitions for reconsideration in May. On June 24, 2016, the D.C. Circuit granted a motion to suspend the briefing schedule in pending challenges to the standards to allow parties to consolidate their challenges of the denial of reconsideration with their challenges to the original rule. Motions to consolidate must be filed by July 12, and motions for an amended briefing schedule must be filed by August 4. West Virginia v. EPA, No. 16-1220 (D.C. Cir., filed July 1, 2016); Utility Air Regulatory Group v. EPA, No. 16-1221 (D.C. Cir., filed July 1, 2016); North Dakota v. EPA, Nos. 15-1381 et al. (D.C. Cir. order June 24, 2016): added to the “Challenges to Clean Power Plan” slide.

Sierra Club filed a petition for review in the D.C. Circuit Court of Appeals seeking to overturn the Department of Energy’s authorizations of the export of LNG from the Cove Point LNG Terminal in Maryland. The Department of Energy denied Sierra Club’s request for rehearing in April, rejecting Sierra Club’s arguments that it had not adequately considered greenhouse gas impacts and that it should have considered induced natural gas production and increased coal consumption as indirect effects of its action. Sierra Club v. Department of Energy, No. 16-1186 (D.C. Cir., filed June 15, 2016): added to the “Stop Government Action/NEPA” slide.

Parties filed a first round of briefs in a D.C. Circuit Court of Appeals proceeding in which two chemical manufacturers challenge EPA’s final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) under its Significant New Alternatives Policy (SNAP) program. The program implements Section 612 of the Clean Air Act, which concerns alternatives to ozone-depleting substances. In their opening brief, the chemical manufacturers argued that EPA had exceeded its statutory authority by banning HFCs that were not ozone-depleting. The manufacturers also contended that EPA had acted arbitrarily and capriciously, arguing that EPA had not explained why differences in global warming potential (GWP) between banned HFCs and other chemicals were significant, had improperly used GWP as a “proxy” for atmospheric effects, and had not provided an objective standard for what levels of GWP are acceptable. In its brief, EPA responded that it had authority to change the listing of a non-ozone-depleting substance where alternatives were available that posed a lower risk to human health and the environment. EPA also defended its use of GWP in its analysis of atmospheric effects. Other industry participants intervened on EPA’s behalf and argued, among other things, that Section 612 was intended to foster continued development of safer alternatives to ozone-depleting substances. NRDC also intervened on EPA’s behalf, arguing that EPA acted within its statutory and regulatory authority. A manufacturer of composite preform products used in the marine and transportation industries also challenged the rule. That challenge has been held in abeyance while EPA considers the manufacturer’s request for reconsideration. Mexichem Fluor, Inc. v. EPA, Nos. 15-1328 and 15-1329 (D.C. Cir.); Compsys, Inc. v. EPA, No. 15-1334 (D.C. Cir. order May 31, 2016): added to the “Challenges to Federal Action” slide.

ExxonMobil Asked Texas Federal Court to Block Civil Investigative Demand from Massachusetts Attorney General

ExxonMobil filed a complaint in the federal district court for the Northern District of Texas against the Massachusetts Attorney General, asking the court to bar enforcement of a civil investigative demand (CID) issued to ExxonMobil in April 2016 and to declare that the CID violated ExxonMobil’s rights under federal and state law. ExxonMobil also moved for a preliminary injunction in the Texas federal court, and said that it would file a protective motion in Massachusetts state court to argue that the court lacked personal jurisdiction. ExxonMobil said it would lodge its objections to the CID in state court but would ask the Massachusetts court to stay its consideration of the objections because the Texas federal court should resolve the issue of the CID’s enforceability in the first instance. ExxonMobil’s complaint in the Texas federal court said that the CID indicated that ExxonMobil was the subject of an investigation under a Massachusetts statute concerning unfair or deceptive acts or practices in trade or commerce. ExxonMobil argued that it could not have violated the statute because it had not sold fossil fuel products, operated retail stores, or sold any form of equity to the general public in Massachusetts in the past five years. ExxonMobil alleged that the CID violated its rights under the First, Fourth, and Fourteenth Amendments and Dormant Commerce Clause of the U.S. Constitution and constituted an abuse of process under common law. At the end of June, the Texas federal court granted the parties’ joint motion to enlarge the time period for the Massachusetts Attorney General to respond to the complaint and motion for preliminary injunction “[i]n light of the complex nature of the case and the extensive documents filed by ExxonMobil.” Exxon Mobil Corp. v. Healey, No. 4:16-cv-00469 (N.D. Tex. filed June 15, 2016; joint motion June 22, 2016; order June 30, 2016): added to the “Regulate Private Conduct” slide.

Forest Products Company Sued Greenpeace Under RICO for “Forest Destroyer” Campaign

A company in the forest products industry and six of its subsidiaries sued Greenpeace, another environmental organization, and a number of individual employees of the organizations under the Racketeer Influenced and Corruption Organizations (RICO) Act in the federal district court for the Southern District of Georgia. The plaintiffs alleged that Greenpeace and the other defendants mounted a campaign identifying the forest products company as a “Forest Destroyer.” The complaint’s allegations included that the defendants told a “whopping lie” by suggesting that the plaintiffs created climate change risks by harvesting the Boreal forest. The plaintiffs claimed that the defendants created and disseminated false and misleading reports and information concerning the plaintiffs, “under the guise of protecting the environment, but in truth, for the unlawful purpose of soliciting fraudulent donations from the public at-large.” In addition to RICO claims, the plaintiffs asserted claims for defamation, tortious interference with prospective business relations, tortious interference with contractual relations, common law civil conspiracy, and trademark dilution. Resolute Forest Products, Inc. v. Greenpeace International, No. 1:16-tc-05000 (S.D. Ga., filed May 31, 2016): added to the “Climate Protesters and Scientists” slide.

Groups Sought Vermont Attorney General Emails About Climate Denial

Energy & Environmental Legal Institute and Free Market Environmental Law Clinic filed a lawsuit in Vermont Superior Court against the Vermont attorney general under the State’s Public Records Law. The organizations asked the court to require the attorney general’s office to respond to a public records request submitted in May 2016. The organizations asked for emails of the Vermont attorney general and an assistant attorney general that included the terms “climate denial” or “climate denier” or the names or email addresses of certain lawyers at environmental nongovernmental organizations or the names or email addresses of the New York State Attorney General (NYAG) or the chief of the NYAG’s Environmental Protection Bureau. Energy & Environment Legal Institute v. Attorney General of Vermont, No. 349-6-16WNCV (Vt. Super. Ct., filed June 13, 2016): added to the “Regulate Private Conduct” slide.

Environmental Group Said EPA Covered Up Problems with Methane Measurement in Natural Gas Industry

NC WARN, a nonprofit group in North Carolina, submitted a complaint and request for investigation to the EPA Office of Inspector General (OIG) in which the organization alleged that there had been a “persistent and deliberate cover-up” at EPA that had prevented the agency from taking action to reduce methane venting and leakage in the natural gas industry. The complaint said that a whistleblower engineer had brought concerns regarding problems with measurement of methane emissions from natural gas facilities to the attention of a University of Texas engineering professor who served as chair of EPA’s Science Advisory Board and led a study co-sponsored by Environmental Defense Fund (EDF). The complaint said the whistleblower had also brought his concerns to the attention of other participants in the EDF project and various EPA officials. NC WARN contended that the failure to address these concerns had set back efforts to under methane leakage and its impact on climate. The complaint asked the OIG to conduct an expedited investigation and asked that certain studies be retracted and new studies be undertaken. The complaint also asked OIG to investigate EPA’s use of researchers with “industry bias and direct conflicts of interest.” NC WARN also recommended certain policy changes: a zero-emission goal for methane; a “full regimen” for oversight, testing, and remediation of methane emissions by EPA; and taking into account the global warming potential of methane over a 20-year, instead of a 100-year, timeframe. NC WARN, Complaint and Request for Investigation of Fraud, Waste and Abuse by a High-Ranking EPA Official Leading to Severe Underreporting and Lack of Correction of Methane Venting and Leakage Throughout the US Natural Gas Industry (June 8, 2016): added to the “Force Government to Act/Other Statutes” slide.

Local and State Agencies Asked EPA to Lower NO_x Emission Standard for Heavy-Duty Trucks

Eleven local and state environmental agencies, led by the South Coast Air Quality Management District in California, petitioned EPA to reduce the on-road heavy-duty engine exhaust emission standards for oxides of nitrogen (NO_x) to a level ten times lower than the current level. The petitioners said that the lower standard was necessary in order for a number of areas to meet the national ambient air quality standard (NAAQS) for ozone. They asserted in the petition that it would be more cost-effective for engine manufacturers to simultaneously develop engines that met both the related EPA Phase 2 greenhouse gas reduction requirements and an ultra-low NO_x standard because the two standards would require modifications to the same engine system. Petition to EPA for Rulemaking to Adopt Ultra-Low NOx Exhaust Emission Standards for On-Road Heavy-Duty Trucks and Engines (June 3, 2016): added to the “Force Government Action/Clean Air Act” slide.

Jessica Wentz

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