{"id":2051,"date":"2013-06-03T08:46:25","date_gmt":"2013-06-03T13:46:25","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=2051"},"modified":"2013-07-19T11:46:27","modified_gmt":"2013-07-19T16:46:27","slug":"updates-to-the-climate-litigation-chart","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2013\/06\/03\/updates-to-the-climate-litigation-chart\/","title":{"rendered":"Updates to the Climate Litigation Chart"},"content":{"rendered":"
<\/div>

by Margaret Barry<\/p>\n

New Field Reports from the Columbia Journal of Environmental Law<\/a>:\u00a0 <\/b>
\nThe Regional Greenhouse Gas Initiative: Winners and Losers<\/a> (April 24, 2013)
\nNanoparticles: Regulating a Tiny Problem with Huge Risks<\/a> (April 23, 2013)
\n5th<\/sup> Circuit Reverses Itself on Hurricane Katrina Liability Lawsuit<\/a> (April 22, 2013)
\nField Notes from the Superstorm Sandy Catastrophe<\/a> (January 8, 2013)
\nAvoiding Albuquerque: How Incentive-Based Green Building Codes May Regulate Appliance Efficiency Standards and Avoid Federal Preemption<\/a> (December 19, 2012)<\/p>\n

Hydraulic Fracturing Case Chart<\/a> and Hydraulic Fracturing Regulatory Chart<\/a> published by Arnold & Porter LLP<\/b>.\u00a0 To receive Arnold & Porter\u2019s Hydraulic Fracturing Legal Updates, click here<\/a><\/b><\/p>\n

Here are the additions to the Climate Case Chart. <\/a>
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FEATURED DECISION<\/b><\/p>\n

Comer v. Murphy Oil USA, Inc.<\/i><\/b><\/a> (5th Cir. May 14, 2013): added to the \u201cCommon Law Claims\u201d slide.\u00a0 On May 14, 2013, the Fifth Circuit affirmed on res judicata grounds the district court\u2019s 2012 dismissal of plaintiffs\u2019 claims. Plaintiffs had alleged claims of nuisance, trespass, and negligence on the theory that the defendant energy companies\u2019 greenhouse gas (GHG) emissions contributed to global climate change and exacerbated the effects of Hurricane Katrina.\u00a0 In 2007, the district court had dismissed similar claims by the same plaintiffs against some of the same defendants on the grounds that plaintiffs lacked standing and that the claims were non-justiciable political questions, a judgment that remained untouched after a series of procedural twists during the appeals process. In its May 2013 decision, the Fifth Circuit rejected plaintiffs\u2019 arguments that the district court\u2019s 2007 judgment was not final or on the merits, noting that at no point in the appeals process had the district court\u2019s 2007 judgment been disturbed. The Fifth Circuit also refused plaintiffs\u2019 request for an equitable exception to res judicata, invoking the \u201cwell-known rule that a federal court may not abrogate principles of res judicata out of equitable concerns.\u201d The Fifth Circuit also held that the 2007 judgment was on the merits since res judicata principles apply to jurisdictional determinations.<\/p>\n

DECISIONS AND SETTLEMENTS<\/b><\/p>\n

Sierra Club v. United States Department of Agriculture Rural Utilities Service<\/i><\/b><\/a> (D.C. Cir. May 28, 2013): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.\u00a0 The D.C. Circuit dismissed the appeal by intervenor Sunflower Electric Power Corporation of the district court\u2019s order granting summary judgment to the Sierra Club.\u00a0 The district court had held that the Rural Utilities Service unlawfully failed to prepare an environmental impact statement (EIS) prior to granting approvals and financial assistance to Sunflower for expansion of a coal-fired power plant.\u00a0 The district court remanded the proceeding to the Service for a determination of what further action was needed. The D.C. Circuit determined that the district court\u2019s order was a non-final remand order that was not immediately appealable by a private party and therefore dismissed Sunflower\u2019s appeal for lack of jurisdiction.<\/p>\n

Alec L. v. Perciasepe<\/a><\/i><\/b> (D.D.C. May 22, 2013): added to the \u201cCommon Law Claims\u201d slide.\u00a0 On May 22, 2013, the federal district court for the District of Columbia denied reconsideration of its May 2012 dismissal<\/a> of plaintiffs\u2019 claims.\u00a0 Plaintiffs had alleged that the federal defendants violated the \u201cfederal public trust doctrine\u201d by failing to protect the atmosphere.\u00a0 Relying on a 2012 Supreme Court decision, the court ruled in its 2012 decision that it lacked subject matter jurisdiction because the public trust doctrine was a creature of state\u2014not federal\u2014law.\u00a0 In denying reconsideration, the court\u2019s May 2013 decision rejected plaintiffs\u2019 arguments that they had not been given an adequate opportunity to address the 2012 Supreme Court decision.\u00a0 The district court further found that plaintiffs\u2019 arguments in the motion for reconsideration merely \u201crepackage[d]\u201d arguments that the court had already rejected, or attempted to make new arguments that could and should have been raised previously.<\/p>\n

North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors<\/i><\/b><\/a> (Cal. Ct. App. May 21, 2013): added to the \u201cState NEPAs\u201d slide.\u00a0 In 2009, the Marin Municipal Water District Board of Directors (Board) certified a final environmental impact report (EIR) for and subsequently approved the construction of a desalination plant that would extract raw seawater from San Rafael Bay, remove solids from the raw water by using reverse osmosis, and discharge a saline brine back into the bay. Plaintiffs challenged the project, and the trial court set aside the Board\u2019s decisions.\u00a0 Among other faults, the trial court found that the EIR failed to adequately discuss the alternative of using green energy credits to mitigate the project\u2019s energy impacts and that the EIR\u2019s conclusion that the project\u2019s GHG emissions would not be cumulatively considerable was not supported by substantial evidence.\u00a0 The appellate court reversed the trial court\u2019s decision.\u00a0 The appellate court determined that because the EIR concluded that the project\u2019s energy impacts would be insignificant, there was no need to discuss green energy credits as an alternative mitigation measure.\u00a0 The appellate court also determined that\u00a0 facts and analysis in the EIR were sufficient to support the conclusion that the impact on GHG emissions would not be cumulatively considerable.\u00a0 The appellate court noted, among other things, that the EIR\u2019s analysis concluded that the project would not interfere with the county goal of reducing GHG emissions to 15 percent below 1990 levels by 2020 and that the Board had adopted a policy requiring offsets for all project-related GHG emissions.<\/p>\n

Native Village of Kivalina v. Exxon Mobil Corp.<\/i><\/b><\/a> (U.S. May 20, 2013): added to the \u201cCommon Law Claims\u201d slide. The U.S. Supreme Court denied the Native Village of Kivalina\u2019s petition for a writ of certiorari.\u00a0 The Village had sought to recover money damages from a number of energy companies for GHG emissions from the companies\u2019 operations that plaintiffs alleged contributed to the erosion of sea ice where the Village is located.\u00a0 The Ninth Circuit had held that the Village could not sue under a theory of public nuisance because the common law claims had been displaced by the Clean Air Act.<\/p>\n

Alaska Oil & Gas Association v. Jewell <\/a><\/i><\/b>(D. Alaska May 15, 2013): added to the \u201cPetitions Under the Endangered Species Act and Related Litigation\u201d slide.\u00a0 The district court denied motions to alter or amend its January 2013 judgment vacating the Fish and Wildlife Service (FWS) designation of critical habitat for the polar bear.\u00a0 In denying the motions, the court rejected arguments that there were errors in its judgment and noted that defendants and defendants-intervenors could not raise new arguments or previously known and available evidence or rehash arguments previously made.\u00a0 The court also ruled that vacating and remanding FWS\u2019s final rule was a proper remedy even though the court found nothing wrong with 96 percent of the designated area.\u00a0 The decision noted that polar bears \u201care presently abundant\u201d and \u201cface no immediate or precipitous decline\u201d and cited plaintiffs\u2019 showing that they would be harmed if the critical habitat designation were left in place.\u00a0 The court also indicated that vacating and remanding was appropriate because it would give FWS another opportunity to involve Alaska Native villages, corporations and the State of Alaska in the designation process.<\/p>\n

U.S. v. Miami-Dade County, Fla.<\/a><\/i> <\/b>(S.D. Fla. May 14, 2013): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.\u00a0 The court granted the motion <\/a>by Biscayne Bay Waterkeeper and a resident of Key Biscayne to intervene in a government action against Miami-Dade County to enforce the Clean Water Act and the Florida Air and Water Pollution Control Act.\u00a0 The intervenors had previously submitted a notice of their intent to sue under the Clean Water Act\u2019s citizen suit provision.\u00a0 The governments\u2019 complaint<\/a> allege unpermitted discharges of untreated sewage, failures to comply with permit conditions, and the creation of conditions that present an imminent and substantial endangerment.\u00a0 The lawsuit was commenced after months of negotiations among the federal, state, and county governments over a proposed consent decree<\/a>, which the Miami-Dade Board of County Commissioners approved on May 21, 2013.\u00a0 In their motion, which was filed in January 2013, the intervenors contended that the proposed consent decree \u201cif not significantly altered, is not reasonably calculated to ensure Clean Water Act compliance and is contrary to the public\u2019s interest.\u201d\u00a0 Among other things, the intervenors argued that the proposed decree needed to consider climate change impacts including sea level rise.<\/p>\n

American Petroleum Institute v. EPA<\/a><\/i><\/b> (D.C. Cir. May 10, 2013): added to the \u201cChallenges to Federal Action\u201d slide.\u00a0 The D.C. Circuit granted a motion requesting that this action challenging the third step of EPA\u2019s tailoring rule be held in abeyance pending the U.S. Supreme Court\u2019s disposition of Utility Air Regulatory Group v. EPA<\/i> and related petitions.\u00a0 The Utility Air Regulatory Group and numerous other parties have filed petitions for writs of certiorari for review of the D.C. Circuit\u2019s June 2012 decision<\/a> in Coalition for Responsible Regulation, Inc. v. EPA<\/i> that upheld EPA\u2019s GHG permitting program for stationary sources and other EPA regulation of GHG emissions (see infra<\/i>).<\/p>\n

In re Polar Bear Endangered Species Act Listing<\/i><\/b> (D.C. Cir. April 29, 2013): added to the \u201cPetitions Under the Endangered Species Act and Related Litigation\u201d slide. The D.C. Circuit issued orders denying requests for a panel rehearing<\/a> and for panel rehearing<\/a> on the Fish and Wildlife Service decision to list the polar bear as threatened under the Endangered Species Act (ESA). The D.C. Circuit upheld the listing determination on March 1, 2013.<\/p>\n

Alliance of Automobile Manufacturers v. EPA<\/a><\/span><\/i><\/b> (D.C. Cir. April 25, 2013): added to the \u201cChallenges to Federal Action\u201d slide.\u00a0 Petitioners in this proceeding challenge EPA\u2019s rule requiring gas stations to label pumps that dispense gasoline that contains more than 10 percent ethanol.\u00a0 The D.C. Circuit granted a motion<\/a> to hold the proceedings in abeyance pending the disposition of Grocery Manufacturers Assn. v. EPA<\/i>, Alliance of Automobile Manufacturers v. EPA<\/i>, and American Fuel & Petrochemical Manufacturers v. EPA<\/i> by the U.S. Supreme Court.\u00a0 Parties in those three proceedings challenged EPA\u2019s decision to allow vehicles from model years 2001 forward to use gasoline with up to 15-percent ethanol content; the D.C. Circuit dismissed the challenges for lack of standing.\u00a0 The parties have petitioned the Supreme Court to overturn the D.C. Circuit\u2019s decision.<\/p>\n

Southwest Energy Efficiency Project v. New Mexico Construction Industries Commission<\/i><\/b> (N.M. Ct. App. April 23, 2013): added to the \u201cStop Government Action\/Other Statutes\u201d slide.\u00a0 On April 23, 2013, the New Mexico Court of Appeals issued an order for a rehearing.\u00a0 A few weeks earlier, the court had set aside the Commission\u2019s adoption of revised energy codes that repealed energy efficiency requirements.\u00a0 The New Mexico Construction Industries Commission issued a press release<\/a> on April 25, 2013 to announce the rehearing order, which the Commission indicated \u201chas the effect of suspending the opinion of the court until its final determination.\u201d The press release stated that it would continue to enforce the revised codes while a final decision by the Court of Appeals is pending.<\/p>\n

Sierra Club v. San Diego County<\/a><\/span><\/i><\/b> (Cal. Super. Ct. April 19, 2013): added to the \u201cState NEPAs\u201d slide.\u00a0 In July 2012, the Sierra Club filed a lawsuit challenging San Diego County\u2019s climate action plan (CAP). In April 2013, the court set aside the County\u2019s approval of the CAP.\u00a0 The court held that the CAP was not properly approved because it should have been subject to a supplemental EIR.\u00a0 (The county had concluded in an addendum to the program EIR for the County\u2019s 2011 General Plan Update (GPU) that the CAP fell within the program EIR\u2019s scope.) The court further held that even if the CAP had been properly approved, it failed to meet the mitigation obligations in the program EIR for the GPU, which required the County to set detailed GHG emissions reduction targets and deadlines and to implement enforceable GHG emissions reduction measures.\u00a0 Noting that the CAP describes itself as a \u201cliving document\u201d and as a \u201ca platform for the County to build strategies to meet its emission-reduction targets,\u201d the court stated: \u201cThere is no time for \u2018building strategies\u2019 or \u2018living documents;\u2019 as the PEIR quite rightly found, enforceable mitigation measures are necessary now.\u201d<\/p>\n

NEW CASES, MOTIONS AND NOTICES<\/b><\/p>\n

Petition to Undertake Area-Wide Environmental Impact Statement on All Proposed Coal Export Terminals in Washington and Oregon<\/b><\/a> (May 22, 2013): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.\u00a0 Earthjustice, on behalf of 11 groups, submitted a petition to the U.S. Army Corps of Engineers pursuant to the Administrative Procedure Act, 5 U.S.C. \u00a7\u00a0553(e), requesting that the Corps evaluate the cumulative and related impacts of all proposed coal export terminals in Oregon and Washington in a \u201csingle, comprehensive, area-wide\u201d environmental impact statement.\u00a0 Among the issues that the petition said should be considered in an area-wide EIS were \u201ceffects on global consumption of coal \u2026 and resulting increased greenhouse gas emissions.\u201d\u00a0 The petition requested a response from the Corps prior to completion of the scoping process for the proposed Millennium Terminal in Longview, Washington.\u00a0 The petition cited two other pending applications for coal export facilities, the Gateway Pacific Terminal site in Cherry Point, Washington, and the Morrow Pacific project in Oregon, as projects that should be considered in the EIS.<\/p>\n

Notice of Intent to Sue for Failure to Issue Polar Bear Status Review and Recovery Plan<\/b><\/a> (May 15, 2013): added to the \u201cPetitions Under the Endangered Species Act and Related Litigation\u201d slide.\u00a0 The Center for Biological Diversity sent a 60-day notice of intent to sue to the Secretary of the Interior and the U.S. Fish and Wildlife Service\u00a0 for failing to conduct a five-year status review and complete a recovery plan for the polar bear. The polar bear was listed as a threatened species under the ESA in 2008 because of declining Arctic sea ice habitat.\u00a0 The notice states that new evidence shows sea ice habitat is declining more rapidly than predicted and that the polar bear\u2019s status now warrants an endangered listing under the ESA.<\/p>\n

Notice of Final Action on Petition From Earthjustice To List Coal Mines as a Source Category and To Regulate Air Emissions From Coal Mines<\/b><\/a> (EPA, 78 Fed. Reg. 26,739, May 8, 2013): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide.\u00a0 On May 8, 2013, EPA published a notice of final action in the Federal Register to provide notice that on April 30, 2013 Acting Administrator Bob Perciasepe had signed a letter denying a petition submitted by Earthjustice in 2010 to add coal mines to the Clean Air Act section 111 list of stationary source categories.\u00a0 The notice stated that \u201climited resources\u201d and \u201congoing budget uncertainties\u201d forced EPA to prioritize its actions and that it could not commit to undertake the process required for determining whether coal mines should be listed as a stationary source category.<\/p>\n

Tennessee Environmental Council v. Tennessee Valley Authority<\/a><\/span><\/i><\/b> (M.D. Tenn., filed April 25, 2013): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.\u00a0 Plaintiffs challenge the Tennessee Valley Authority\u2019s (TVA\u2019s) alleged failure to comply with the National Environmental Policy Act (NEPA) in connection with TVA\u2019s decision in August 2011 to spend more than $1 billion to construct retrofits and associated facilities at its Gallatin plant (the Life Extension Project) to allow TVA to continue to use the plant past a 2017 deadline established in a settlement agreement with EPA and a consent decree between TVA and a number of states and environmental organizations.\u00a0 Petitioners contend that while the Life Extension Project will substantially reduce air emissions from the Gallatin plant, it will still cause a number of significant impacts that could be avoided by shutting the plant down, including significant ongoing emissions of sulfur dioxide, carbon dioxide, nitrogen oxides, and mercury; two \u201cmassive\u201d new landfills;\u00a0 and a number of new wastewater streams.\u00a0 Plaintiffs allege, among other things, that TVA committed resources to the project prior to complying with NEPA, that TVA should have prepared an EIS, that TVA failed to consider a legitimate no-action alternative, and that TVA failed to allow for public comment.<\/p>\n

Notice of Intent to Sue for Failure to Timely Promulgate New Source Standards of Performance and Regulations Providing Emission Guidelines for Certain Greenhouse Gas Emissions from Fossil Fuel-Fired Electric Utility Generating Units (Power Plants)<\/b><\/a> (April 25, 2013): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide. On April 25, 2013, the Conservation Law Foundation sent a 60-day notice of intent to sue to EPA.\u00a0 The notice cites EPA\u2019s failure to promulgate final standards of performance for GHG emissions from new power plants as required by 42 U.S.C. \u00a7\u00a07411(b) and to propose and finalize regulations that provide for a plan and emission guidelines for the control of carbon dioxide emissions from existing power plants as required by 42 U.S.C. \u00a7\u00a07411(d). This notice follows two similar notices submitted by states and cities and by three other environmental organizations (see infra<\/i>).<\/p>\n

Notice of Intent to Sue for Failure to Promulgate Standards of Performance and Emissions Guidelines for Greenhouse Gas Emissions from Electric Utility Generating Units<\/b><\/a> (April 17, 2013): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide.\u00a0 On April 17, 2013,\u00a0 ten state attorneys general as well as the attorney general for the District of Columbia and the New York City Corporation Counsel sent a 60-day notice of intent to sue to EPA.\u00a0 The notice requests that EPA remedy its failure to publish performance standards for GHG emissions from power plants.\u00a0 The entities represented are petitioners in New York v. EPA<\/i> (D.C. Cir., No. 06-1322), in which they challenged the Bush administration EPA\u2019s decision declining to regulate GHG emissions from power plants and steam generating units.\u00a0 The April 2013 notice contends that EPA\u2019s failures to finalize GHG emissions standards for new power plants and to issue standards for existing power plants are in violation of the Clean Air Act because EPA has failed to perform non-discretionary duties and has unreasonably delayed in taking action to promulgate such standards.\u00a0 This notice comes two days after three environmental organizations sent a 60-day notice asserting the same failures on the part of EPA (see infra<\/i>).<\/p>\n

Notice of Intent to Sue for Failure to Timely Promulgate New Source Performance Standards (NSPS) and Emission Guidelines for Greenhouse Gas Emissions from Electric Utility Generating Units (EGUs)<\/b><\/a> (April 15, 2013): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide.\u00a0 On April 15, 2013, Environmental Defense Fund, the Sierra Club, and the Natural Resources Defense Council sent a 60-day notice of intent to sue to EPA for (1) failure to perform its nondiscretionary duty under the Clean Air Act to issue final new source performance standards regulating GHG emissions of greenhouse gases from new power plants within one year of proposing these standards, and for unreasonable delay in carrying out that duty, and (2) failure to carry out its nondiscretionary duty to issue proposed and final emission guidelines for GHG emissions from existing power plants, a duty it is required to execute under section 111(d) of the Act and EPA regulations, and for its unreasonable delay in failing to take such action.\u00a0 Two days later, on April 17, ten states and the District of Columbia and New York City sent a 60-day notice asserting the same failures, and 10 days later, the Conservation Law Foundation sent a similar notice (see supra<\/i>).<\/p>\n

Petition for Additional Water Quality Criteria and Guidance Under Section 304 of the Clean Water Act, 33 U.S.C. \u00a7\u00a01314, to Address Ocean Acidification<\/b><\/a> (April 17, 2013): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.\u00a0 On April 17, 2013, the Center for Biological Diversity petitioned EPA to promulgate additional water quality criteria under Section 304 of the Clean Water Act to address ocean acidification and to request that that EPA publish information on water quality in order to guide states addressing ocean acidification.\u00a0 The petition provided an overview of the scientific background for ocean acidification, asserting that as the oceans absorb carbon dioxide emitted from the burning of fossil fuels, seawater becomes increasingly acidic, and that the current rate of acidification is faster than anything experienced in the last 300 million years.\u00a0 The petition asserts that EPA has a non-discretionary duty to promulgate standards because the current criteria and guidelines \u201cdo not reflect the latest scientific knowledge and fail to protect marine water quality, as required by the Clean Water Act.\u201d<\/p>\n

Morning Star Packing Co. v. <\/a>CARB<\/a><\/span><\/i><\/b> (Cal. Super. Ct., filed April 16, 2013): added to the \u201cIndustry Lawsuits\/Challenge to State Action\u201d slide.\u00a0 Petitioners-plaintiffs, which are California residents, businesses, trade associations, and advocacy groups, seek an order enjoining and requiring California to rescind the \u201crevenue-generating auction provisions\u201d of its GHG emissions cap and trade program and a declaration that the cap and trade program\u2019s auction provisions are not authorized by statute or, alternatively, that they constitute illegal taxes under the California Constitution.<\/p>\n

Numerous petitions for writs of certiorari have been filed in the U.S. Supreme Court seeking review of the D.C. Circuit\u2019s June 2012 decision<\/a> in Coalition for Responsible Regulation, Inc. v. EPA<\/i>, which upheld several aspects of EPA\u2019s regulation of GHG emissions under the Clean Air Act:<\/p>\n