by J. Cullen Howe<\/p>\n
New updates from December to the Center for Climate Change Law and Arnold & Porter Climate Case Chart<\/strong>.\u00a0 Find the complete chart here<\/a><\/strong>.<\/p>\n FEATURED DECISION<\/strong><\/p>\n Native Village of Kivalina v. ExxonMobil Corporation<\/em><\/strong> (9th<\/sup> Cir. Nov. 11, 2012):\u00a0 added to the \u201ccommon law claims\u201d slide.\u00a0 The Ninth Circuit denied a motion for a rehearing en banc concerning its decision affirming the dismissal of a lawsuit by Inupiat Native Alaskans seeking to recover money damages from a number of energy companies for GHG emissions from the companies\u2019 operations that plaintiffs alleged eroded sea ice where the village is located.\u00a0 The appeals court held that plaintiffs could not sue under a theory of public nuisance given that this theory had been displaced by the Clean Air Act.\u00a0 The lawsuit alleged that as a result of climate change, the Arctic sea ice that protects the Kivalina coast from storms has been diminished and that resulting erosion will require relocation of the residents at a cost of between $95 and $400 million.<\/p>\n DECISIONS AND SETTLEMENTS<\/strong><\/p>\n Cleveland National Forest Foundation v. San Diego Ass\u2019n of Government <\/a><\/span><\/em><\/strong>(Cal. Super. Ct. Dec. 3, 2012):\u00a0 Several environmental groups filed a lawsuit challenging a regional transportation plan developed by the San Diego Association of Governments on the grounds that it failed to address, among other things, GHG emissions and climate change impacts.\u00a0 Specifically, the lawsuit alleges that the defendant violated the California Environmental Quality Act (CEQA) by failing to address these issues in its draft environmental impact report (EIR).\u00a0 The trial court agreed, holding that the EIR did not sufficiently analyze the GHG impacts of the plan through 2050.<\/p>\n Sierra Club v. County of Tehama<\/a><\/em><\/strong> (Cal. Ct. App. Nov. 30, 2012):\u00a0 added to the \u201cstate NEPAs\u201d slide.\u00a0 An environmental group filed a lawsuit alleging that Tehama County\u2019s general plan update violated CEQA by, among other things, misrepresenting greenhouse gas emissions in its EIR.\u00a0 The trial court denied the petition.\u00a0 On appeal, the appellate court affirmed, holding that the methodology for quantifying such emissions in the EIR was supported by substantial evidence.<\/p>\n Merced Alliance for Responsible Growth v. City of Merced<\/a><\/em><\/strong> (Cal. Ct. App. Nov. 29, 2012): added to the \u201cstate NEPAs\u201d slide.\u00a0 A community group challenged the City of Merced\u2019s approval of a regional distribution center in the city boundaries.\u00a0 The petition alleged that the EIR prepared for the proposed project did not address the project\u2019s impact on greenhouse gases and climate change.\u00a0 The state trial court dismissed the petition.\u00a0 On appeal, the appellate court affirmed, holding that that EIR adequately addressed these issues.<\/p>\n Habitat and Watershed Caretakers v. City of Santa Cruz<\/a><\/em><\/strong> (Cal. Ct. App. Nov. 27, 2012):\u00a0 added to the \u201cstate NEPAs\u201d slide. \u00a0A community group filed a lawsuit alleging that the City of Santa Cruz failed to comply with CEQA when it certified an EIR to amend the city\u2019s \u201csphere of influence\u201d to include an undeveloped portion of the University of California at Santa Cruz campus to provide water and sewer services to a new development.\u00a0 Among other things, the petition alleged that the EIR did not adequately address the impacts of the project on the environment, including climate change.\u00a0\u00a0 The trial court dismissed the petition.\u00a0 On appeal, the appellate court reversed, holding that the EIR inadequately addressed feasible alternatives to the project.<\/p>\n NEW CASES, MOTIONS AND NOTICES<\/strong><\/p>\n American Petroleum Institute v. EPA<\/em><\/strong> (D.C. Cir., filed Nov. 26, 2012); American Fuel & Petroleum Manufacturers v. EPA<\/em><\/strong> (D.C. Cir., filed Nov. 21, 2012):\u00a0 added to the \u201cchallenges to federal action\u201d slide. \u00a0\u00a0Two industry associations filed lawsuits against EPA challenging the agency\u2019s 2013 volume requirements for biomass-based diesel fuel.\u00a0 The final rule mandates the use of 1.28 billion gallons of biodiesel in 2013, a 28% increase from the 2012 requirement.\u00a0 \u00a0According to the lawsuits, the costs for producing the fuel greatly outweigh the benefits and fraudulent biofuel credits undermine the program.<\/p>\n Notice of Intent to Sue<\/a><\/span><\/em><\/strong> (EPA, filed Nov. 27, 2012):\u00a0 added to the \u201cClean Air Act\u201d slide.\u00a0 New York University\u2019s Institute for Policy Integrity served a notice of intent to sue EPA for its failure to propose and adopt regulations for a cap-and-trade system limiting emissions from motor vehicle and aircraft fuels.\u00a0 In 2009, the group served a petition on the agency asking EPA to making a finding under Section 211 of the CAA that emissions from motor fuels could endanger public welfare and then propose a cap-and-trade system to control emissions from fuels used in mobile sources.\u00a0 It also asked that the agency make a finding under Section 231 that aircraft emissions endanger public welfare and then propose a joint rulemaking with the Federal Aviation Administration to incorporate aircraft fuels into the cap-and-trade system.\u00a0\u00a0 EPA failed to act on the petition, prompting the notice of intent to sue.<\/p>\n American Forest & Paper Association v. EPA<\/em><\/strong> (D.C. Cir., filed Nov. 16, 2012):\u00a0 added to the \u201cchallenges to federal action\u201d slide.\u00a0 \u00a0An industry group filed a lawsuit alleging that the emissions factors developed by EPA as part of its GHG reporting requirements for paper mills and biomass-fired boilers exceed actual measured emissions and should be revised.\u00a0\u00a0 According to the lawsuit, emissions factors the agency requires paper mills and boilers to use when calculating their methane and nitrous oxide emissions greatly overstate actual emissions.\u00a0 EPA\u2019s greenhouse gas reporting rule requires facilities such as power plants, petroleum refineries, and manufacturing plants with emissions greater than 25,000 tons per year to submit annual reports.<\/p>\n California Chamber of Commerce v. California Air Resources Board<\/a><\/em> <\/strong>(Cal. Super. Ct., filed Nov. 13, 2012):\u00a0 added to the \u201cchallenges to state action\u201d slide.\u00a0 The California Chamber of Commerce filed a lawsuit seeking to invalidate the state\u2019s auction of GHG emissions allowances, alleging that the California Air Resources Board (CARB), which runs the auctions, lacks authority to do so under A.B. 32.\u00a0 The lawsuit alleges that the allowances are illegal taxes and that, in adopting A.B. 32, state lawmakers did not intend for CARB to raise revenue through an auction mechanism.\u00a0 The suit was filed the day before the auction took place, and no injunctive relief was sought.<\/p>\n Competitive Enterprise Institute v. U.S. Treasury Dept.<\/a> <\/em><\/strong>\u00a0(D.D.C., filed Nov. 13, 2012):\u00a0 added to the \u201cother statutes\u201d slide under the \u201cFreedom of Information Act\u201d subsection.\u00a0 A conservative legal foundation filed a lawsuit against the Treasury Department seeking agency emails concerning a possible federal carbon tax.\u00a0 According to the agency, the Obama Administration has no plans to propose a carbon tax and any such legislation would need Republican support.\u00a0 The lawsuit seeks emails from the agency\u2019s Office of Energy and Environment that contain the word \u201ccarbon.\u201d<\/p>\n Public Service Co. of Oklahoma v. EPA<\/span><\/em><\/strong> (10th<\/sup> Cir. Nov. 13, 2012):\u00a0 added to the \u201cchallenges to coal-fired power plants\u201d slide.\u00a0 EPA solicited public comment on a proposed settlement agreement in which the Public Service Company of Oklahoma would take one coal-burning unit out of commission and install better pollution control equipment on another.\u00a0 The proposed agreement would settle a lawsuit brought by a company that owns the power plant against EPA that challenges a final rule partially disapproving Oklahoma\u2019s state implementation plan.<\/p>\n