April 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 # 144.

Some of these updates may not appear on the chart right away due to a technical issue.

FEATURED CASE

Second Circuit Rejected New York City’s State Law Climate Claims Against Oil Companies

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies.        The Second Circuit’s decision largely followed the reasoning of the district court’s 2018 decision. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions, and found that Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), provided “sound reasoning” for determining that the Clean Air Act also displaced federal common law damages claims. The Second Circuit also rejected New York City’s contention that the Clean Air Act’s displacement of federal common law claims resuscitated its state law common law claims. Finally, the Second Circuit held that although the Clean Air Act did not displace New York’s federal common law claims addressing emissions outside the United States, foreign policy concerns foreclosed such claims. The Second Circuit said holding the oil companies liable for “purely foreign activity” would “sow confusion and needlessly complicate the nation’s foreign policy, while clearly infringing on the prerogatives of the political branches.” City of New York v. BP p.l.c., No. 18-2188 (2d Cir. Apr. 1, 2021).

DECISIONS AND SETTLEMENTS

Ninth Circuit Declined to Stay Remand Order in Honolulu and Maui Cases

The Ninth Circuit Court of Appeals denied fossil fuel companies’ emergency motions for stay pending appeal of a district court order remanding cases brought by the City and County of Honolulu and the County of Maui seeking climate change damages. The Ninth Circuit found that the companies failed to establish irreparable injury with arguments regarding increased litigation burdens, possible inefficiencies, and the possibility that a state court could “irrevocably” adjudicate the plaintiffs’ claims while the appeals were pending. The Ninth Circuit also found that the companies did not make a sufficient showing on the merits, given the Ninth Circuit’s decisions in County of San Mateo v. Chevron Corp. and City of Oakland v. BP p.l.c. City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir. Mar. 13, 2021); County of Maui v. Chevron USA Inc., No. 21-15318 (9th Cir. Mar. 13, 2021).

D.C. and Minnesota Federal Courts Remanded Climate Cases Against Fossil Fuel Industry

Two federal district courts—in Minnesota and the District of Columbia—granted motions to remand cases brought by plaintiffs against the fossil fuel industry.

• In Minnesota, the district court granted the State of Minnesota’s motion to remand its case, which asserts state law claims under common law and consumer protection statutes. The district court found that the defendants failed to establish that federal jurisdiction was warranted on any of the seven independent grounds they asserted: federal common law; presence of disputed and substantial federal issues (the Grable doctrine); the federal officer removal statute; the Outer Continental Shelf Lands Act; federal enclaves; the Class Action Fairness Act; and diversity. The companies filed an emergency motion for a temporary stay of execution of the remand order on the same day (March 31) that the district court issued the order. On April 7, the court granted the emergency motion pending briefing on the companies’ motion to stay, which was filed on April 7. Minnesota v. American Petroleum Institute, No. 0:20-cv-01636 (D. Minn. Mar. 31, 2021).
• In the District of Columbia, the district court remanded a case brought against Exxon Mobil Corporation (Exxon) by the nonprofit organization Beyond Pesticides under D.C.’s consumer protection statute. The court rejected Exxon’s arguments that the diversity jurisdiction statute or the Class Action Fairness Act provided a basis for federal jurisdiction. On March 26, 2021, the court denied Exxon’s emergency motion for a temporary stay of the remand order. Exxon subsequently filed a motion in the district court to stay execution pending appeal and filed a petition for permission to appeal in the D.C. Circuit under 28 U.S.C. § 1453(c), which provides for expedited appeals of district court orders granting or denying motions to remand class actions. Exxon also filed an emergency motion for stay in the D.C. Circuit. On April 6, the D.C. Circuit ordered that the case be administratively stayed to allow the court an opportunity to consider the petition and emergency motion. Beyond Pesticides v. Exxon Mobil Corp., No. 20-cv-1815 (D.D.C. Mar. 22, 2021), In re Exxon Mobil Corp., No. 21-8001 (D.C. Cir. Apr. 1, 2021).

 

Supreme Court Said Florida Failed to Prove Georgia’s Overconsumption of Water Caused Injuries

The U.S. Supreme Court dismissed Florida’s original jurisdiction case seeking an equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin. The Court unanimously found that Florida had not met its heavy burden of proving by clear and convincing evidence that Georgia’s overconsumption of the Basin waters caused the collapse of Florida’s oyster fisheries and harm to Florida’s river ecosystem. The Court pointed to documents and witnesses presented by Florida that supported Georgia’s contention that Florida’s mismanagement of the fishery caused its collapse; the Court also cited evidence that “the unprecedented series of multiyear droughts, as well as changes in seasonal rainfall patterns, may have played a significant role” in the conditions that led to the fishery’s collapse. Florida v. Georgia, No. 142 (U.S. Apr. 1, 2021).

D.C. Circuit Vacated Trump EPA’s Significant Contribution Rule

The D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motion for voluntary vacatur of a final rule published on January 13, 2021 that adopted a numerical threshold and other criteria for determining when a source category’s greenhouse gas emissions significantly contribute to air pollution that endangers public health or welfare, making the source category subject to new source performance standards. EPA acknowledged in its motion that it had promulgated the rule without providing notice and opportunity to comment on the rule’s central elements. Because the rule therefore was unlawful and EPA did not intend to cure the procedural defect, EPA requested vacatur and remand. California v. EPA, No. 21-1035 (D.C. Cir. Apr. 5, 2021).

D.C. Circuit Vacated Rule Extending Implementation Deadlines for Landfill Emission Guidelines

The D.C. Circuit Court of Appeals granted EPA’s request for voluntary vacatur and remand of a final rule delaying implementation of emission guidelines for municipal solid waste landfills under Clean Air Act Section 111(d). EPA requested vacatur based on the D.C. Circuit January 2021 opinion in American Lung Association v. EPA, which addressed the repeal and replacement of the Clean Power Plan and also found that the justifications for extending Section 111(d) implementation timelines were inadequate. The landfill regulations incorporated the deadlines found to be invalid in American Lung Association. Environmental Defense Fund v. EPA, No. 19-1222 (D.C. Cir. Apr. 5, 2021).

Bankrupt Coal Export Terminal Developer’s Appeal Dismissed in Lawsuit Against Washington Officials

After the developer of a proposed coal export terminal in Washington filed for bankruptcy and rejected its rights to the development site, the Ninth Circuit Court of Appeals dismissed the developer’s appeal of a district court decision in the developer’s lawsuit asserting that Washington officials’ actions denying a Section 401 water quality certification and a sublease of aquatic lands were preempted by federal law and in violation of the dormant Commerce Clause. The district court dismissed the preemption claims and abstained from considering the dormant Commerce Clause claims. In their motion to dismiss the appeal, the Washington officials and environmental groups that intervened on their behalf argued that the developer’s bankruptcy made the case moot. Lighthouse Resources, Inc. v. Inslee, No. 19-35415 (9th Cir. Mar. 23, 2021).

Seventh Circuit Declined to Stay Trump Administration Revisions to Showerhead Conservation Standard

The Seventh Circuit Court of Appeals denied petitioners’ motion for a stay pending appeal in the case challenging the U.S. Department of Energy (DOE) final rule revising the definition for “showerhead” and adding definitions for “body spray” and “safety shower showerhead” in the energy conservation standards for consumer products. DOE has indicated that it is reviewing the rule pursuant to President Biden’s Executive Order 13990. Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1167 (7th Cir. order denying stay Mar. 18, 2021).

Fifth Circuit to Hold Pipeline Permit Challenge in Abeyance While Corps Considers Project Changes

The Fifth Circuit Court of Appeals held in abeyance a petition challenging a U.S. Corps of Engineers permit for a natural gas pipeline in Texas until the Corps completes reconsideration of the permit. The Corps suspended the permit after modifications to the plan for the liquefied natural gas terminal to which the pipeline was related. Shrimpers & Fishermen of the RGV v. U.S. Army Corps of Engineers, No. 20-60281 (5th Cir. Mar. 9, 2021).

Work on Willow Project on Hold After Parties Reach Agreement

The Ninth Circuit Court of Appeals dismissed without prejudice an appeal of the district court’s denial of a preliminary injunction in cases challenging the Willow project, a major oil development project in the National Petroleum Reserve-Alaska. In February, the Ninth Circuit temporarily enjoined certain construction work for the duration of the appeal. The plaintiffs agreed to dismissal of the appeal after the oil and gas company agreed not to take certain actions until December 1, 2021. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 21-35085 (9th Cir. Mar. 9, 2021).

D.C. Circuit Dismissed Challenge to Renewal of Florida Nuclear Plant Licenses

The D.C. Circuit Court of Appeals dismissed a challenge to license renewals for the Turkey Point nuclear generating station in Florida as “incurably premature.” The court concluded that it lacked jurisdiction because administrative appeals that raised the same legal issues were still pending before the Nuclear Regulatory Commission. Among the issues raised by the petitioners was whether the plan for protecting groundwater would be effective in a changing climate. Friends of the Earth v. U.S. Nuclear Regulatory Commission, No. 20-1026 (D.C. Cir. Mar. 4, 2021).

District Court Said Plaintiffs Could Proceed with Title V Permit Claim Against Coal Mine Operator

The federal district court for the District of Colorado allowed WildEarth Guardians to proceed with their claim that a coal mine owner and operator failed to obtain a Title V operating permit for the mine but accepted a magistrate judge’s recommendation that a claim alleging that the defendants should have obtained a Prevention of Significant Deterioration construction permit for the expansion should be dismissed. The district court concluded that the plaintiffs had sufficiently alleged that the Title V permit claim was not time-barred. WildEarth Guardians v Mountain Coal Co., No. 20-cv-1342 (D. Colo. Mar. 30, 2021).

Federal Court Dismissed Challenge to Colorado Dam Project Authorizations for Lack of Jurisdiction

The federal district court for the District of Colorado agreed with federal respondents that the Federal Power Act (FPA) required that petitioners’ challenges to U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service (FWS) actions authorizing a dam project in Colorado be brought in a federal court of appeal. The district court noted that the FPA vests federal courts of appeal with exclusive jurisdiction to review not only the licensing orders of the Federal Energy Regulatory Commission (FERC) but also “all issues inhering in the controversy” related to a FERC order. In this case, the court found that the Corps, FERC, and FWS decisions were “inextricably intertwined.” The court therefore dismissed the case—which alleged, among other things, that the federal agencies failed to take into account climate change impacts and future climate change models—for lack of jurisdiction. Save the Colorado v. Semonite, No. 18-cv-03258 (D. Colo. Mar. 31, 2021).

Alaska Federal Court Said Consideration of Oil and Gas Activities’ Impacts on Beluga Whales in Cook Inlet Was Inadequate but Upheld Cumulative Effects Analysis

The federal district court for the District of Alaska rejected plaintiffs’ contention that the National Marine Fisheries Service’s (NMFS’s) cumulative effects analysis for incidental take regulations authorizing oil and gas exploration and production activities in Cook Inlet was inadequate, but found that NMFS failed to consider the direct impacts of tugs towing the drill rig on Cook Inlet beluga whales. Regarding the cumulative effects analysis, the court found that NMFS’s environmental assessment catalogued “a wide variety of potential impacts,” including climate change, and plaintiffs failed to identify individual impacts ignored by NMFS. The court found that NMFS “provided a well-developed discussion of the various impacts,” rejecting the plaintiffs’ argument that NMFS merely listed the impacts. Cook Inletkeeper v. Raimondo, No. 3:19-cv-00238 (D. Alaska Mar. 30, 2021).

Colorado Federal Court Granted BLM’s Request for Remand of Resource Management Plan to Conduct Additional Analysis

The federal district court for the District of Colorado granted federal respondents’ motion for voluntary remand of a case challenging the Resource Management Plan (RMP) and Environmental Impact Statement for the Grand Junction Field Office. The case was similar to a prior case in which the court held in 2018 that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act by failing to take a hard look at indirect emissions from oil and gas development and to consider reasonable alternatives to making lands available for oil and gas leasing. Based on the 2018 decision, BLM determined that it would prepare a supplemental analysis for the Grand Junction RMP. The court denied the petitioners’ request that the court define the scope of analysis on remand, as well as their request that the court order the respondents not to hold oil and gas lease sales until a new decision document was released. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:19-cv-02869 (D. Colo. Mar. 26, 2021).

Utah Federal Court Said Analysis of Coal Mine Expansion’s Greenhouse Gas Impacts Was Inadequate

The federal district court for the District of Utah found that BLM failed to adequately consider greenhouse gas and climate change impacts of a proposed coal lease authorizing the expansion of a coal mine. Although the court rejected the plaintiffs’ claim that BLM performed only a “bare arithmetic emissions calculation” of greenhouse gas emissions, the court agreed with the plaintiffs that BLM could not set forth the project’s potential economic benefits in the socioeconomics section of the environmental impact statement (EIS) without analyzing the socioeconomic costs of greenhouse gas emissions together with climate change. The court did not, however, direct BLM to use the social cost of carbon in this analysis, finding that BLM was “owed some deference on the tools it uses.” The court also said it was not adopting a “categorical test that if economic benefits are quantified then economic costs always must be too, because, among other things, some costs may not accurately be reduced to numbers.” In addition, the court found that BLM failed to take a sufficiently hard look at cumulative impacts of greenhouse gas emissions because it did not substantively analyze present and reasonably foreseeable future sources of greenhouse gas emissions. The court declined, however, to impose a requirement that all federal or Department of Interior mining approvals be included in the cumulative impact analysis, leaving the determination of the scope to the agency’s discretion. The court rejected the argument that BLM did not take a hard look at mercury emissions. The court remanded to BLM but did not vacate the EIS or record of decision. Utah Physicians for a Healthy Environment v. U.S. Bureau of Land Management, No. 2:19-cv-00256 (D. Utah Mar. 24, 2021).

Parties Settled Suit Concerning Protections for Endangered New Mexico Meadow Jumping Mouse

Center for Biological Diversity and Maricopa Audubon Society agreed to a settlement resolving their claims that federal defendants failed to take actions to protect the endangered New Mexico meadow jumping mouse in the Apache-Sitgreaves National Forest. The U.S. Forest Service agreed to certain steps to inspect, maintain, and repair a boundary fence, and also to inspect riparian fencing and exclosures within jumping mouse critical habitat and to remove horses and cattle when they are found within exclosures. The U.S. Fish and Wildlife Service agreed to prepare a draft recovery plan for the jumping mouse by the end of January 2022, and to finalize the plan by the end of January 2023. The plaintiffs alleged that the jumping mouse’s habitat was threatened by drought and wildfires, both exacerbated by climate change; the Forest Service viewed climate change effects as part of the baseline, not as a result of the management plan for the national forest. Center for Biological Diversity v. de la Vega, No. 4:20-cv-00075 (D. Ariz. Mar. 17, 2021).

Federal Court Upheld NEPA Review of Colorado Predator Management Program

The federal district court for the District of Colorado found that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service–Wildlife Services (Wildlife Services) took a hard look at the impacts of continuing its Colorado branch’s predator damage management program. The court noted that the program is intended to reduce conflicts with predators such as bears and coyotes that impact livestock, agricultural and natural resources, property, and human and health safety. One of the arguments rejected by the court was that Wildlife Services relied on inaccurate data in assessing impacts on black bear and coyote populations, including by failing to analyze human population growth and climate change as factors contributing to increased levels of black bear and human conflicts in Colorado. The court found that the review of these factors was sufficient. WildEarth Guardians v. Wehner, No. 1:17-cv-00891 (D. Colo. Mar. 10, 2021).

Oil and Gas Company Sought Voluntary Dismissal of Action to Compel Biden Administration Action on Drilling Permits

The federal district court for the District of North Dakota dismissed without prejudice a lawsuit brought by an oil and gas exploration and production company in February 2021 to compel BLM to act on applications for permit to drill (APDs) submitted in 2020 for oil and gas leases in North Dakota. The company submitted a notice of voluntary dismissal after BLM granted the APDs in February and March 2021. Continental Resources, Inc. v. de la Vega, No. 1:21-cv-00034 (D.N.D. Mar. 10, 2021).

D.C. Federal Court Directed Department of Interior to Search for Drafts of Zinke Order Rescinding Moratorium on Coal Leasing Program

The federal district court for the District of Columbia directed the U.S. Department of the Interior (DOI) to undertake additional searches for records in response to Center for Biological Diversity’s (CBD’s) requests under the Freedom of Information Act (FOIA) for records of discussions and correspondence related to President Trump’s March 2017 executive order directing the Secretary of the Interior to lift the moratorium on the federal coal leasing program. The court agreed with CBD that the absence of drafts of then-Secretary Ryan Zinke’s order implementing the executive order, along with the absence of Secretary-level communications about the order, gave rise to “material doubt” about the adequacy of the agency’s declarations regarding the searches it conducted. The court determined that DOI must either supplement its declarations or take additional steps to confirm it completed an adequate search for Secretary-level communications and drafts of the order, including by requesting that Zinke search his own files and asking him whether he used additional personal platforms beyond the email address already searched to conduct agency business. In addition, the court concluded that FOIA obligated DOI to take additional steps to search Zinke’s government-issued phone. The court rejected CBD’s contention that DOI should undertake a specific search of Trump transition team records but directed DOI to clarify the extent to which its searches encompassed and identified correspondence between DOI and the transition team, or to expand its search to include such records. Center for Biological Diversity v. Bureau of Land Management, No. 17-cv-1208 (D.D.C. Mar. 9, 2021).

Ohio Federal Court Remanded Environmental Assessment for Additional Analysis of Hydraulic Fracturing Impacts in Wayne National Forest

A year after finding that the U.S. Forest Service and BLM failed to take a hard look at the impacts of hydraulic fracturing in the Wayne National Forest, the federal district court for the Southern District of Ohio remanded without vacatur the environmental assessment, finding of no significant impact, and consent to lease for additional analysis of surface area disturbance, cumulative impacts on the Indiana Bat and Little Muskingum River, and air quality impacts. The complaint alleged failure to consider climate change effects on the forest and protected species, but the court’s decisions did not address those issues. Center for Biological Diversity v. U.S. Forest Service, No. 2:17-cv-00372 (S.D. Ohio Mar. 8, 2021).

California Appellate Court Rejected CEQA Challenge to Approval of Aggregate Operation Expansion

The California Court of Appeal affirmed the denial of a challenge to the California Environmental Quality Act review for expansion of an aggregate operation in Napa County. The appellate court reviewed five impact areas raised by the petitioner on appeal, including the claim that the environmental impact report (EIR) insufficiently addressed and mitigated greenhouse gas emission impacts caused by loss of oak woodland. The court found that the petitioner had failed to apprise the Napa County Board of Supervisors of the carbon sequestration issue. The court also addressed the merits of the argument, noting that the petitioner did not cite authority requiring “mathematical calculations concerning carbon sequestration mitigation.” The court further concluded that the EIR contained “ample discussion” of greenhouse gas issues actually raised by the petitioner, and that “appropriate mitigation measures” were required. Stop Syar Expansion v. County of Napa, No. A158723 (Cal. Ct. App. Mar. 25, 2021).

New Jersey Upheld Approval of Zero Emission Certificates for Nuclear Power Plants

The Appellate Division of the New Jersey Superior Court affirmed the Board of Public Utilities’ approval of applications by three nuclear power plants under the Zero Emission Certificate (ZEC) program. The court found that the Board’s decision was adequately supported by the record and consistent with the language and legislative intent of the 2018 statute that established the ZEC program. The court noted that the ZEC statute was intended to help New Jersey achieve its clean energy goals by subsidizing nuclear power generators to keep them operational in the face of competition from carbon-emitting generators. In re Implementation of L. 2018, C. 16 Regarding Establishment of Zero Emission Certification Program for Eligible Nuclear Power Plants, No. A-3939-18 (N.J. Super. Ct. App. Div. Mar. 19, 2021).

California Appellate Court Said Greenhouse Gas Credits Did Not Reduce City’s Electricity Users’ Tax Base

The California Court of Appeal reversed the dismissal of the City of Torrance’s lawsuit that alleged that Southern California Edison Company (Edison)—the sole electricity provider in the city—impermissibly reduced the amount of the electricity users’ tax that it remitted to the City after collecting it from residents and businesses. Edison reduced the tax base by the amount of an annual “industry assistance credit” established by the California Public Utilities Commission that rewards businesses that implement energy-efficient programs that reduce greenhouse gas emissions. The appellate court agreed with the City that the credits should not affect the tax base. The appellate court further concluded, however, that Edison was not directly liable for the uncollected electricity users’ taxes but that the City had to be given the opportunity to amend its complaint to seek unpaid taxes from consumers that underpaid the electricity users’ tax due to Edison’s use of an incorrect tax base. City of Torrance v. Southern California Edison Co., No. B300296 (Cal. Ct. App. Mar. 17, 2021).

Maryland Appellate Court Allowed Redaction of Attorney General’s Application to Participate in Special Assistant AG Program

The Maryland Court of Special Appeals affirmed the dismissal of a lawsuit seeking to compel disclosure under the Maryland Public Information Act of the entirety of the Maryland Office of the Attorney General’s (OAG’s) application to participate in a program of the State Energy & Environmental Impact Center at New York University (NYU) Law School. If selected for the program, the Impact Center hired an NYU Fellow  to serve as special assistant attorney general to work in the attorney general’s (AG’s) office on matters related to the “advancement and defense of progressive clean energy, climate change, and environmental matters.” The appellate court agreed with the OAG that redacted portions of the application were privileged as “preliminary communications made between a client and its prospective counsel while seeking legal assistance.” The redacted sections were therefore exempt from disclosure due to attorney-client privilege. Government Accountability & Oversight, P.C. v. Frosh, No. 2ndd (Md. Ct. Spec. App. Mar. 1, 2021).

California Court Said Change in Water Use to Adapt to Climate Change Was CEQA “Project”

The California Superior Court granted a petition for writ of mandate requiring the Los Angeles Department of Water and Power (LADWP) to conduct a California Environmental Quality Act (CEQA) review for its change in use of water on 6,400 acres owned by LADWP in Mono County. The court noted that the changes in water use were “driven by the appropriate goal of planning for how the LADWP will adapt to the challenges of climate change.” Based on its independent review of the evidence, the court concluded that the change in water use was a CEQA “project” because it was “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” County of Mono v. City of Los Angeles, No. RG18-923377 (Cal. Super. Ct. Mar. 8, 2021).

Louisiana Appellate Court Reversed Remand of Chemical Plant Air Permits to Agency

The Louisiana Court of Appeal concluded that a district court abused its discretion by remanding to the Louisiana Department of Environmental Quality (DEQ) a lawsuit challenging air permits for a chemical complex. The appellate court cited the timing of the remand, which occurred before any merits briefing, and also found that the court exceeded statutory authority that authorizes remand so that the agency may consider additional evidence. In this case, the appellate court said the court remanded not only for consideration of additional evidence (updated EJSCREEN data) but also ordered DEQ to undertake more thorough environmental justice analysis and open a public comment period to accept comment pollution and health risks. The plaintiffs’ allegations in the lawsuit include that given Louisiana’s vulnerability to climate change impacts, DEQ failed to fulfill its obligations as a public trustee by not considering the environmental effects of the project’s contribution to greenhouse gas emissions, or the adverse costs of greenhouse gas emissions. Rise St. James v. Louisiana Department of Environmental Quality, No. 2021 CW 0032 (La. Ct. App. Mar. 15, 2021).

NEW CASES, MOTIONS, AND OTHER NOTICES

Amicus Briefs Filed in Support of Supreme Court Review of Jurisdiction Question in San Francisco and Oakland Cases, Colorado Localities Agreed to Await Supreme Court’s Decision in Baltimore Case, and Other Climate Nuisance Case Developments

In addition to the decisions and orders discussed above, there have been a number of developments in other climate change cases against the fossil fuel industry.

• On March 11, 2021, four amicus briefs were filed in support of fossil fuel companies’ petition for writ of certiorari seeking review of the Ninth Circuit’s decision that reversed the district court’s denial of Oakland’s and San Francisco’s motions to remand their climate change nuisance cases. The amicus briefs were filed by American Petroleum Institute, National Association of Manufacturers, the Chamber of Congress of the United States of America, and 18 states, led by Indiana. The petition requested that the Court consider the questions of “[w]hether putative state-law tort claims alleging harm from global climate change are removable because they arise under federal law” and “[w]hether a plaintiff is barred from challenging removal on appeal after curing any jurisdictional defect and litigating the case to final judgment.” In the district court, briefing was completed on March 18 for San Francisco and Oakland’s motion to amend their complaints to remove federal claims and their renewed motion to remand. Chevron Corp. v. City of Oakland, No. 20-1089 (U.S. Mar. 11, 2021); City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. Mar. 18, 2021).
• On March 5, 2021, the Boards of County Commissioners of Boulder County and San Miguel County and the City of Boulder (plaintiffs) filed their opposition to fossil fuel companies’ petition for writ of certiorari seeking review of the district court order remanding their climate change case. The plaintiffs agreed with the companies that this case presents the same question regarding the scope of appellate review of remand orders as BP p.l.c. v. Mayor & City Council of Baltimore, in which the Court heard oral argument in January. The plaintiffs did not object to the companies’ position that the petition should be held pending the decision in Baltimore and then disposed of pursuant to the Baltimore decision. The Court distributed the petition for its April 16 conference. Suncor Energy (U.S.A.), Inc. v. Board of County Commissioners of Boulder County, No. 20-783 (U.S. Mar. 5, 2021).
• On March 25, 2021, defendants Chevron Corporation and Chevron U.S.A., Inc. (Chevron) removed the City of Annapolis’s climate change case against Chevron and other fossil fuel companies to federal court. All other defendants consented to removal. The notice of removal identified the following grounds for removal: Annapolis’s claims necessarily arise under federal law; the claims necessarily raise disputed and substantial federal issues; the Outer Continental Shelf Lands Act; the federal officer removal statute; and federal enclave jurisdiction. Chevron also asserted that Annapolis’s allegations that the companies concealed and misrepresented their products’ contributions to climate change were “a strained attempt to evade federal jurisdiction.” Chevron further contended that these allegations “ignore the vast public record establishing that the risks of climate change, including its potential impacts on Maryland, have been discussed publicly since at least the 1950s.” City of Annapolis v. BP p.l.c., No. 1:21-cv-00772 (D. Md. Mar. 25, 2021).
• In the City of Hoboken’s case against fossil fuel companies, the companies filed a motion on March 17, 2021 to strike arguments regarding collateral estoppel and a request for fees in Hoboken’s reply because they were raised for the first time. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Mar. 17, 2021).

D.C. Circuit Held Challenge to Trump-Era Vehicle Standards in Abeyance

On April 2, 2021, the D.C. Circuit Court of Appeals granted the motion by EPA and the National Highway Traffic Safety Administration to hold in abeyance the proceedings challenging the Trump administration’s greenhouse gas emission and fuel economy standards for passenger cars and light trucks (the Safer Affordable Fuel-Efficiency (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks). The court ordered that the cases be held in abeyance pending further order of the court, with status reports on the agencies’ review of the rule to be filed every 90 days. On April 6, it was reported that EPA Administrator Michael Regan had said the Biden administration was on track to propose new standards by the end of July 2021 (as directed by President Biden’s Executive Order 13990). Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir. Apr. 2, 2021).

Second Circuit Held Challenge to Fuel Economy Penalty Increase Delay in Abeyance

The Second Circuit Court of Appeals granted the National Highway Traffic Safety Administration’s motion to hold in abeyance challenges to an interim final rule published on January 14, 2021 that delayed an inflation adjustment to the civil penalty for violations of fuel economy standards. Petitioners had moved for expedited review, but the court denied that request. The court also referred to the merits panel a motion by Tesla, Inc. for summary vacatur or a stay pending judicial review. Tesla originally sought to intervene in the proceedings, but then filed its own petition for review. The Second Circuit denied its motion to intervene as moot and granted a motion to intervene by Alliance for Automotive Innovation, which submitted the rulemaking petition to which the interim final rule responded. Natural Resources Defense Council v. National Highway Traffic Safety Administration, No. 21-139 (2d Cir. Mar. 4, 2021).

Juliana Plaintiffs Sought to Amend Complaint to Add Request for Declaratory Relief

After the Ninth Circuit denied rehearing en banc of its decision that youth plaintiffs lacked standing to pursue their constitutional climate change claims against the federal government, the plaintiffs filed a motion in the federal district court in Oregon seeking leave to amend their complaint. The plaintiffs argued that the amended complaint cured the redressability issue that formed the basis for the Ninth Circuit’s decision. The plaintiffs contended that their amended complaint sought “only relief … that is traditionally granted and well within this Court’s Article III authority.” Specifically, the proposed amended complaint sought relief pursuant to the Declaratory Judgment Act and omitted requests for “specific relief,” including a remedial plan, that the Ninth Circuit determined would be outside the authority of Article III courts. The defendants opposed the motion, arguing that it was barred by the Ninth Circuit’s mandate, which included “unambiguous” instructions to the district court to dismiss the case, and that amendments would be futile. Juliana v. United States, No. 6:15-cv-01517 (D. Or. motion for leave to amend Mar. 9, 2021).

Briefing in Mountain Valley Pipeline Case Addressed Consideration of Potential Climate Impacts on Protected Species

Briefing was completed in environmental groups’ lawsuit seeking review, for a second time, of the U.S. Fish and Wildlife Service’s approvals for the Mountain Valley Pipeline. The petitioners’ arguments include contentions that the FWS failed to meaningfully analyze climate impacts on the Roanoke logperch and the candy darter, and also failed to specify impact for the Indiana bat, whose habitat is threatened by climate change. The petitioners argued that currently unoccupied bat habitat cleared for the pipeline would no longer be suitable for future use by the bat. The respondents argued that they properly accounted for potential impacts on the logperch and darter and that climate change was not anticipated to limit the availability of Indiana bat habitat in the bat’s Appalachian Mountain Recovery Unit. Appalachian Voices v. U.S. Department of Interior, No. 20-2159 (4th Cir. Mar. 19, 2021).

Environmental Groups Challenged Use of Nationwide Permit 12 to Authorize Crude Oil Pipeline

Three environmental organizations filed a lawsuit in federal district court for the Western District of Tennessee challenging the U.S. Army Corps of Engineers’ 2017 issuance of Nationwide Permit 12 (NWP 12), as well as the Corps’ verification of use of NWP 12 for the Byhalia crude oil pipeline. The organizations asserted claims under the National Environmental Policy Act, the Clean Water Act, and the Administrative Procedure Act. The complaint alleged, among other things, that the Corps failed to take a hard look at the climate change impacts of the 2017 issuance of NWP 12—which covered utility lines, including pipelines. The organizations alleged that potential climate impacts included increased life-cycle greenhouse gas emissions from oil and gas pipeline approval under NWP 12. Memphis Community Against Pollution, Inc. v. U.S. Army Corps of Engineers, No. 2:21-cv-02201 (W.D. Tenn. Apr. 1, 2021).

Lawsuit Cited Climate Change Threat in Challenge to Reclassification of Beetle from “Endangered” to “Threatened”

Center for Biological Diversity filed a lawsuit against the U.S. Fish and Wildlife Service in federal court in the District of Columbia challenging the reclassification of the American burying beetle from “endangered” to “threatened” under the Endangered Species Act. CBD alleged that the reclassification “eliminates key substantive protections” while the species faces the “same dire threats” it faced when it was listed in 1989, and that the species was now “at even greater risk of extinction due to climate change.” The complaint alleged that the beetle was at most risk from climate change in the Southern Plains due to increased average soil temperatures that will make large areas of potential habitat uninhabitable, and that there were also threats to other geographical populations, including the New England population, in the longer term. 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. 1:21-cv-00791 (D.D.C., filed Mar. 25, 2021).

Groups Sought Critical Habitat Designation for Climate-Threatened Rusty Patch Bumble Bee

Three organizations filed a lawsuit in federal court in the District of Columbia to compel the U.S. Fish and Wildlife Service to designate critical habitat for the rusty patch bumble bee, which was listed as endangered in 2017. The plaintiffs alleged that the bee, “[o]nce common throughout the midwestern and northeastern United States, northward into Canada, the bee has disappeared from the vast majority of its native range and now stands on the brink of extinction, owing to habitat loss and destruction, pesticide use, disease, parasites, and climate change.” The plaintiffs asserted that the FWS’s reasons for determining that designation of critical habitat would not be prudent violated the Endangered Species Act and the Administrative Procedure Act, as well as FWS regulations. Natural Resources Defense Council, Inc. v. U.S. Fish & Wildlife Service, No. 1:21-cv-00770 (D.D.C., filed Mar. 24, 2021).

States Filed Lawsuits Challenging Pause on Federal Oil and Gas Leasing Activities

Thirteen states filed a lawsuit in federal court in Louisiana challenging actions taken pursuant to President Biden’s Executive Order 14008, which directed the Secretary of the Interior to pause new oil and natural gas leasing activities on public lands and in offshore waters. The states asserted that actions implementing this moratorium on leasing activities violated the Outer Continental Shelf Lands Act, the Mineral Leasing Act, and the Administrative Procedure Act. On March 31, the states asked the court for a preliminary injunction ordering the defendants “to execute the statutory duties of the offices regarding and gas leasing as if the Moratoriums did not exist” and enjoining the defendants from implementing the rescission of a lease sale in the Gulf of Mexico and postponements of a lease sale in Cook Inlet in Alaska as well as quarterly lease sales on public lands. The State of Wyoming filed a separate lawsuit in federal court in Wyoming asserting that the moratorium violated the Mineral Leasing Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La., filed Mar. 24, 2021); Wyoming v. U.S. Department of Interior, No. 0:21-cv-00056 (D. Wyo., filed Mar. 24, 2021).

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

Three environmental groups filed a lawsuit in the federal district court for the Eastern District of California asserting that the U.S. Bureau of Land Management violated the National Environmental Policy Act when it proceeded with a lease sale in Kern County, California, which the complaint described as “an area already overwhelmed by oil and gas extraction and suffering from some of the worst air and water pollution problems in the country.” The groups alleged that BLM’s “rushed analysis” of the Kern County sale’s impact suffered from similar defects as the environmental review of hydraulic fracturing that the Central District of California found lacking in 2016. The groups contended that the environmental assessment for the Kern County lease sale improperly tiered to the deficient analysis addressed by the Central District in 2016 and failed to adequately analyze cumulative air quality and climate impacts. The plaintiffs also alleged that BLM failed to consider reasonable alternatives that would have prevented or minimized climate impacts. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:21-cv-00475 (E.D. Cal., filed Mar. 22, 2021).

States Said Biden’s Revocation of Keystone XL Permit Violated Separation of Powers

A lawsuit filed by 21 states in the federal district court for the Southern District of Texas asserted that President Biden’s revocation of the presidential permit for the Keystone XL pipeline and associated actions by cabinet officials violated the Constitution and the Administrative Procedure Act. The states contended that President Biden’s actions encroached on congressional power over interstate and international commerce and therefore violated the Constitution’s separation of powers. They alleged that although Biden invoked a “climate crisis,” “ ‘imperatives of events’ have not prevailed such that the President’s unenumerated powers entitle him to supersede the enumerated power of Congress to regulate … foreign and interstate commerce.” In addition, the complaint asserted that the cabinet officials acted outside their statutory authority, that the revocation of the permit violated the non-delegation doctrine, that it was arbitrary and capricious, and that it should have gone through notice and comments. Texas v. Biden, No. 3:21-cv-00065 (S.D. Tex., filed Mar. 17, 2021).

CEQ Sought Remand Without Vacatur of Trump Administration Amendments of NEPA Regulations

The Council on Environmental Quality (CEQ) requested that the federal district court for the Western District of Virginia remand, without vacatur, CEQ’s 2020 amendments to the regulations implementing the National Environmental Policy Act (NEPA). CEQ argued that voluntary remand was appropriate because CEQ had identified numerous concerns with the rule—including concerns about whether the rule may adversely affect climate change or climate resilience—and had already begun reconsidering the rule. CEQ also argued that remand without vacatur would not prejudice the plaintiffs because CEQ had committed to reconsider the rule along lines that implicated the same concerns that the plaintiffs raised in this action and the lengthiness of the rulemaking process would not directly affect the plaintiffs or defendant-intervenors. The plaintiffs opposed remand without vacatur, arguing that further delay would allow a rule that was actively harming them to remain in effect. The court scheduled oral argument on the motion for remand without vacatur for April 21 but indicated the parties could also argue the pending motions for summary judgment. Wild Virginia v. Council on Environmental Quality, No. 3:20-cv-00045 (W.D. Va. Mar. 17, 2021).

Harris County Challenged Houston Highway Project, Including Failure to Disclose Climate Impacts

Harris County, Texas filed a suit in federal court asserting that the Texas Department of Transportation (TxDOT) failed to comply with NEPA and Section 4(f) of the Department of Transportation Act when it decided to reroute an interstate in Houston. Harris County’s allegations included that the final environmental impact statement (EIS) did not include discussions of disproportionate impacts on minority and low-income populations and climate change impacts that had appeared in the draft EIS. As a result, the County alleged, TxDOT failed to fully disclose such impacts. Harris County v. Texas Department of Transportation, No. 4:21-cv-00805 (S.D. Tex., filed Mar. 11, 2021). (Note: On March 8, the Federal Highway Administration asked TxDOT to pause activity on the project pending investigation of civil rights concerns such as those raised in this lawsuit.)

Challenge to Placement of F35-A Aircraft at Airfield Raised Climate Change Issue

In a lawsuit filed in federal court in the District of Columbia, a plaintiff challenged the decision by the U.S. Air Force to replace F-16 fighter jets with F35-A aircraft at an Air National Guard location in Madison, Wisconsin. The plaintiff asserted claims under the National Environmental Policy Act and the Administrative Procedure Act, including that the defendants failed to adequately consider climate change. The plaintiff alleged that although the defendants disclosed the volume of greenhouse gas emissions (22,000 tons/year of carbon dioxide, compared to 9,263 tons/ year for F-16s), they did not conduct “actual analysis of the incremental impacts” to make it possible “to know whether a change in GHG emissions will be a significant step toward averting the tipping point and irreversible adverse climate change.” Safe Skies Clean Water Wisconsin, Inc. v. U.S. Air Force, No. 1:21-cv-00634 (D.D.C., filed Mar. 10, 2021).

States Challenged Executive Order on Social Cost of Carbon

Thirteen states filed a lawsuit in the federal district court for the Eastern District of Missouri asserting that the portion of President Biden’s Executive Order 13990 that prescribed steps for development and application of the social cost of carbon violated separation of powers, as did the interim values for the social cost of carbon, methane, and nitrous oxide that the order directed the Interagency Working Group on the Social Cost of Greenhouse Gases to develop. The states also asserted that the executive order and the interim values violated agency statutes such as the Clean Air Act that the states alleged conferred authorities on specific federal agencies that the executive order unlawfully arrogated to the Working Group. The states also alleged procedural and substantive violations of the Administrative Procedure Act by the Working Group. Missouri v. Biden, No. 4:21-cv-00287 (E.D. Mo., filed Mar. 8, 2021).

Youth Petitioners Asked Washington High Court to Review Dismissal of Climate Change-Based Constitutional Challenge to State Policies

Washington State youth petitioned the Washington Supreme Court for discretionary review of a lower appellate court’s decision rejecting their constitutional challenge to Washington’s energy and transportation policies that result in high levels of greenhouse gas emissions. The questions presented in their petition included whether the lower appellate court erred in expanding the political question doctrine to preclude review of a constitutional controversy involving government conduct that causes climate change and whether the court below erred in holding that the right to a healthful and pleasant environment is not a fundamental right. Aji P. v. State of Washington, No. 80007-8-I (Wash. Mar. 10, 2021).

California Attorney General Sought to Intervene to Oppose Residential Projects in Areas Vulnerable to Wildfire

In February and March 2021, the California Attorney General filed motions to intervene on behalf of the People of the State of California in lawsuits challenging residential developments that the Attorney General argued would result in adverse environmental effects that could affect the public generally. In the case challenging a proposed residential and resort development in Lake County, the petition attached to the attorney general’s motion alleged that the project would be located in an area where the “frequency, scale, and severity of … wildfires has increased in recent years, exacerbated by climate change and by high-risk development and human activity encroaching into the wildland-urban interface.” The petition also alleged that the environmental impact report for the project failed to adequately analyze and disclose the direct, indirect, and cumulative impacts of the Project on greenhouse gas emissions and climate change.  Similarly, in its motions to intervene in two cases challenging resort and residential developments in San Diego County, the attorney general made similar allegations regarding wildfire risk and the analysis of greenhouse gas emissions and climate change. Center for Biological Diversity v. County of Lake, No. CV 421152 (Cal. Super. Ct. Feb. 1, 2021); Center for Biological Diversity v. County of San Diego, No. 37-2020-00046553 (Cal. Super. Ct. Mar. 17, 2021); Sierra Club v. County of San Diego, No. 37-2019-00038820 (Cal. Super. Ct. Mar. 17, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

Supreme Court of Canada Upheld National Carbon Pricing Scheme

In April of 2018, the Province of Saskatchewan filed a reference case with the Court of Appeal for Saskatchewan, asking whether the Greenhouse Gas Pollution Pricing Act (GGPPA) was an unconstitutional intrusion into provincial jurisdiction. The GGPPA became law on June 21, 2018 and established a federal price on greenhouse gas (GHG) emissions, effective as of January 2019, in any province or territory that has not implemented a compliant carbon pricing regime or any province or territory that requests it. On May 3, 2019, the Court of Appeal for Saskatchewan ruled that the GGPPA is constitutional in whole or in part by a 3-2 majority. The Court of Appeal rejected Canada’s broader argument that Parliament has jurisdiction over “the cumulative dimensions of GHG emissions” under the national concern branch of its “Peace, Order, and good Government” [POGG] power.

On March 25, 2021, the Supreme Court upheld the GGPPA as constitutional in a 6-3 decision. The Court upheld the Act under the POGG power of the constitution, reasoning that climate change was of sufficient national concern to warrant federal jurisdiction, provinces had a constitutional inability to set national GHG emission reduction standards, and the Act’s impact on provincial jurisdiction is qualified and limited. The Court wrote that “Canada has adduced evidence that clearly shows that establishing minimum national standards of GHG price stringency to reduce GHG emissions is of sufficient concern to Canada as a whole that it warrants consideration in accordance with the national concern doctrine.” Provinces were incapable of addressing the problem in the same way because they could not set a national minimum GHG price, and “a failure to include one province in the scheme would jeopardize its success in the rest of Canada.” Further, the Court found that the GGPPA had a limited effect on provincial jurisdiction because it was limited to a narrow regulatory mechanism of pricing, not regulation of all aspects of GHG emissions, and because it only acts as a backstop if provincial pricing is found insufficient. Saskatchewan et al. v. Canada re Greenhouse Gas Pollution Pricing Act (Supreme Court of Canada).

European Court of Justice Dismissed Challenge to EU Emissions Reductions as Insufficient

Ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, brought an action in 2018 in the EU General Court seeking to compel the EU to take more stringent greenhouse gas (GHG) emissions reductions. Plaintiffs allege that the EU’s existing target to reduce domestic GHG emissions by 40% by 2030, as compared to 1990 levels, is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property. The European General Court did not rule on the merits, but dismissed the case on procedural grounds, finding that the plaintiffs could not bring the case since they are not sufficiently and directly affected by these policies (“direct and individual concern” criterion).

On March 25, 2021, the European Court of Justice (ECJ) upheld the General Court’s order and held the plaintiff’s claims inadmissible on standing grounds for failing to demonstrate that they were individually impacted by Europe’s climate policy. The ECJ rejected plaintiffs’ arguments that the General Court did not take into account the climate harms specific to them. Rather, the ECJ found sufficient the lower court’s reasoning that “the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application,” and that doing so would render standing limitations meaningless. Further, the ECJ rejected the argument that, by invoking an infringement of fundamental rights, the plaintiffs had established standing. “[T]he appellants’ reasoning, in addition to its generic wording, leads to the conclusion that there is locus standi for any applicant, since a fundamental right is always likely to be concerned in one way or another by measures of general application such as those contested in the present case.” The ECJ thus dismissed the appeal and ordered plaintiffs to pay costs incurred by the European Parliament and the Council of the EU. Armando Ferrão Carvalho and Others v. The European Parliament and the Council (European Court of Justice).

Supreme Court of India Ordered the Establishment of a Committee to Develop Guidelines on Tree Cutting for Development Projects

On March 25, 2021, the Supreme Court of India issued an order establishing an expert committee to “[d]evelop a set of scientific and policy guidelines that shall govern decision making with respect to cutting of trees for developmental projects.” The order came in response to a petition challenging the government of West Bengal’s plans to cut hundreds of trees, some up to 150 years old, in order to construct roads over bridges and widen roads. In considering whether the plan was in accord with the constitutional right to a healthy environment and India’s sustainable development commitments, the Court emphasized the need to consider the impact of such projects on carbon sequestration and climate change. The Court noted “that the issue assumes significance from the perspective of climate change as a growing national and international concern” and noted India’s climate commitment to increase tree cover from 23% to 33%. The Court then constituted the committee, comprised of seven members, and instructed it to produce the guidelines within four weeks of its first meeting. Association for Protection of Democratic Rights v. The State of West Bengal and Others (Supreme Court of India).

European Court of Human Rights Communicated Climate Case Filed by Swiss Senior Women to the Swiss Government

In 2016, a group of senior women filed suit against the Swiss Government, alleging that the government had failed to uphold obligations under the Swiss Constitution and European Convention on Human Rights by not steering Switzerland onto an emissions reduction trajectory consistent with the goal of keeping global temperatures below 2ºC above pre-industrial levels. On November 27, 2018, the Swiss Federal Administrative Court dismissed the case on the basis that Swiss women over 75 years of age are not the only population affected by climate change impacts.

On November 26, 2020, the Swiss senior women filed an application to the European Court of Human Rights (ECHR) and the ECHR communicated the case to the Swiss government on March 26, 2021. According to Greenpeace, who are supporting the plaintiffs, the ECHR gave the case priority status and called on Switzerland to submit a response by July 16, 2021. Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others (European Court of Human Rights).

Oral Arguments Wrapped Up in Belgium Climate Case

The Klimaatzaak—“climate case”—was brought by an organization of concerned citizens arguing that Belgian law requires the Belgian government’s approach to reducing greenhouse gas emissions to be more aggressive. Plaintiffs base their claims on the government’s failure to exercise their duty of due diligence and caution recognized in Belgium Civil Code Articles 1382 and 1383, and the government’s failure to protect the right to life and rights to private and family life recognized in the European Convention on Human Rights and the UN Convention on the Rights of the Child.

From February 2019 through March 2020, the parties submitted their main conclusions and final conclusions. In their main conclusions, the plaintiffs seek a Court injunction directing the government to reduce emissions 42 to 48% in 2025 and at least 55 to 65% in 2030. Oral arguments were heard from March 16 to 26, 2021. According to news reports, a decision is expected before summer. VZW Klimaatzaak v. Kingdom of Belgium & Others (Brussels Court of First Instance).