{"id":2641,"date":"2014-07-07T15:38:22","date_gmt":"2014-07-07T20:38:22","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=2641"},"modified":"2014-07-16T10:22:13","modified_gmt":"2014-07-16T15:22:13","slug":"july-updates-to-the-climate-litigation-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2014\/07\/07\/july-updates-to-the-climate-litigation-charts\/","title":{"rendered":"July Updates to the Climate Litigation Charts"},"content":{"rendered":"

Update #64 July 2014<\/strong><\/p>\n

\"gavel\"<\/a><\/strong><\/p>\n

Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.<\/a>\u00a0and\u00a0non-US\u00a0<\/a>climate litigation charts. The July\u00a0additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.)<\/p>\n

FEATURED DECISION<\/strong><\/p>\n

Utility Air Regulatory Group v. EPA<\/a><\/em><\/strong>, Nos. 12\u20131146, 12\u20131248, 12\u20131254, 12\u20131268, 12\u20131269, and 12\u20131272 (U.S. June 23, 2014): added to the \u201cChallenges to Federal Action\u201d slide. The United States Supreme Court ruled that the United States Environmental Protection Agency (EPA) had impermissibly interpreted the Clean Air Act as compelling or permitting a facility\u2019s potential greenhouse gas emissions to trigger Prevention of Significant Deterioration (PSD) and Title V permitting requirements. The Court upheld, however, EPA\u2019s determination that \u201canyway\u201d sources (facilities subject to PSD permitting due to their conventional pollutant emissions) could be required to employ \u201cbest available control technology\u201d (BACT) for greenhouse gases. The majority opinion, written by Justice Scalia, concluded that subjecting sources to the PSD and Title V programs solely based on their greenhouse gas emissions \u201cwould place plainly excessive demands on limited governmental resources\u201d and \u201cbring about an enormous and transformative expansion in EPA\u2019s regulatory authority without clear congressional authorization.\u201d The Court rejected EPA\u2019s attempt to fix these problems by \u201crewriting\u201d statutory emissions thresholds, which the Court said \u201cwould deal a severe blow to the Constitution\u2019s separation of powers.\u201d The Court went on to hold, however, that the Clean Air Act\u2019s text clearly supported an interpretation that required BACT for \u201canyway\u201d sources and that applying BACT to greenhouse gases \u201cis not so disastrously unworkable\u201d and \u201cneed not result in such a dramatic expansion of agency authority\u201d as to make the interpretation unreasonable. Justice Breyer wrote an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, concurring with the BACT portion of the majority opinion but dissenting from the conclusion that EPA could not interpret the PSD and Title V programs to be triggered solely by a source\u2019s greenhouse gas emissions. Justice Breyer said that a more sensible way to avoid the absurdity of sweeping an unworkable number of sources into the permitting programs was to imply an exception to the numeric statutory thresholds, rather than to imply a greenhouse gas exception to the phrase \u201cany air pollutant.\u201d Justice Alito, in an opinion joined by Justice Thomas, concurred with the ruling on the triggers for the permitting programs, but dissented from the BACT holding. Justice Alito found it \u201ccurious\u201d that the Court departed from a literal interpretation of \u201cpollutant\u201d in striking down greenhouse gas triggers for PSD and Title V permitting, but embraced literalism in upholding the application of BACT for \u201canyway\u201d sources.<\/p>\n

\u00a0<\/strong>DECISIONS AND SETTLEMENTS<\/strong><\/p>\n

\u00a0<\/strong>Rocky Mountain Farmers Union v. Corey<\/a><\/em><\/strong>, No. 13-1148;\u00a0American Fuel & Petrochemical Manufacturers Association<\/a><\/em><\/strong>, No. 13-1149;\u00a0Corey v. Rocky Mountain Farmers Union<\/a><\/em><\/strong>, No. 13-1308 (U.S. cert. denied June 30, 2014): added to the \u201cChallenges to State Action\u201d slide. The U.S. Supreme Court denied three petitions seeking review of the Ninth Circuit\u00a0decision<\/a>\u00a0that reversed district court rulings that California\u2019s Low Carbon Fuel Standard (LCFS) violated the dormant Commerce Clause. Two of the petitions (Rocky Mountain Farmers Union<\/a>,\u00a0American Fuel & Petrochemical Manufacturers Association<\/a>) had been filed by the parties who had challenged the LCFS; their petitions sought review of the Ninth Circuit\u2019s conclusions that the LCFS did not facially discriminate against interstate commerce and did not constitute extraterritorial regulation. The third was a conditional\u00a0cross-petition<\/a>\u00a0filed by the State of California defendants, who sought review on the issues of whether Section 211(c)(4)(B) of the Clean Air Act (authorizing California to set emissions requirements) barred petitioners\u2019 challenges and whether changes to the LCFS regulations\u2019 treatment of 2011 California crude oil sales rendered some aspects of petitioners\u2019 challenges moot.<\/p>\n

\u00a0<\/strong>High Country Conservation Advocates v. United States Forest Service<\/a><\/em><\/strong>, No.\u00a01:13-cv-01723-RBJ (D. Colo. June 27, 2014): added to the \u201cStop Government Action\/NEPA\u201d slide. The federal district court for the District of Colorado ruled that the United States Forest Service and the United States Bureau of Land Management did not take the required \u201chard look\u201d under the National Environmental Policy Act at the impacts of increased greenhouse gas emissions associated with actions that expanded mining in a part of Colorado\u2019s North Fork Valley called the Sunset Roadless Area. The three actions challenged in the lawsuit were the 2012 Colorado Roadless Rule, which included an exemption for temporary road construction or reconstruction associated with coal mining in the North Fork Valley; lease modifications that added new land to preexisting mineral leases; and approval of Arch Coal\u2019s exploration plan for the additional land. As an initial matter, the court concluded that plaintiffs\u2014three environmental and conservation groups\u2014had standing to bring all of their claims. Citing the D.C. Circuit\u2019s decision in\u00a0WildEarth Guardians v. Jewell<\/a><\/em>, 738 F.3d 298 (D.C. Cir. 2013), the court rejected defendants\u2019 argument that the alleged failure to adequately analyze greenhouse gas emissions resulting from the Colorado Roadless Rule was unrelated to plaintiffs\u2019 alleged concrete injury of harm to their recreational interests in the Sunset Roadless Area. The court went on to find that the agencies had not adequately disclosed and considered the impacts of greenhouse gas emissions in several respects. First, the court faulted the agencies for failing to use the \u201csocial cost of carbon protocol\u201d developed by a federal interagency working group in the analysis of the lease modification\u2019s impacts. The draft environmental review documents had included an assessment of social costs of carbon related to disturbance of forested areas and methane emissions from mining, but the discussions were removed in the final environmental impact statement (FEIS), apparently because use of the protocol was deemed controversial. The court found the explanation for omitting the social cost of carbon protocol from the FEIS to be arbitrary and capricious. The court also rejected the agencies\u2019 justifications for not quantifying methane emissions from mining associated with the Colorado Roadless Rule and for not estimating greenhouse gas emissions associated with combustion of the mined coal. Among other things, the court said that the detailed economic analysis of the benefits of expanded mining was at odds with defendants\u2019 arguments that future emissions associated with the mining were too speculative to support a quantitative analysis. The court enjoined implementation of the exploration plan, and asked the parties to confer and attempt to reach agreement on an appropriate remedy.<\/p>\n

\u00a0<\/strong>Communities for a Better Environment v. Metropolitan Transportation Commission<\/a><\/em><\/strong>, No. RG13692189 (Cal. Super. Ct. June 18, 2014): added to the \u201cState NEPAs\u201d slide. Communities for a Better Environment and Sierra Club reached an\u00a0agreement<\/a>\u00a0with the Metropolitan Transportation Commission and the Association of Bay Area Governments to resolve a California Environmental Quality Act (CEQA) challenge to Plan Bay Area, a regional land use and transportation plan intended to achieve the greenhouse gas emissions reduction goals of AB 32. Respondents agreed to undertake certain analyses in the next update to the plan, including disclosing total greenhouse gas emissions both with and without the implementation of state-wide emissions reduction programs, studying the effects of the creation of express lanes on greenhouse gas emissions and vehicle miles traveled, and preparing a Freight Emissions Reduction Action Plan that will study options for zero-emissions rail and truck technologies.<\/p>\n

\u00a0<\/strong>Reyes v. EPA<\/a><\/em><\/strong>, No.\u00a01:10-cv-02030-EGS (D.D.C. June 13, 2014): added to the \u201cClimate Change Protestors and Scientists\u201d slide. The federal district court for the District of Columbia granted EPA\u2019s renewed motion for summary judgment in this Freedom of Information Action (FOIA) action seeking disclosure of documents related to EPA\u2019s endangerment finding for greenhouse gases. EPA renewed its motion after completing the tasks required by the court in its September 2013\u00a0decision<\/a>\u00a0partially granting and partially denying summary judgment. The court found that EPA\u2019s \u201cdetailed, non-conclusory\u201d affidavits established that EPA\u2019s search satisfied the reasonableness standard. Plaintiff\u2019s arguments that the search was not adequate because of lack of detail, unexplained methodology, and failure to search all relevant locations and the files of all relevant individuals were not persuasive. The court also found that EPA\u2019s justification for withholding documents on the basis of attorney-client privilege was adequate.<\/p>\n

Chernaik v. Kitzhaber<\/a><\/em><\/strong>, No. A151856 (Or. Ct. App. June 11, 2014): added to the \u201cCommon Law Claims\u201d slide. The Oregon Court of Appeals reversed a trial court\u2019s\u00a0dismissal<\/a>\u00a0of plaintiffs\u2019 public trust doctrine lawsuit. The trial court had concluded that it lacked subject matter jurisdiction over the action, in which plaintiffs sought declaratory and equitable relief for the State of Oregon\u2019s failures to meet its fiduciary obligations to protect natural resources such as the atmosphere from the impacts of climate change. The trial court grounded its conclusion in separation of powers and political question concerns. The appellate court ruled that the trial court had authority under the Uniform Declaratory Judgments Act to issue a declaration of whether the atmosphere and other natural resources are \u201ctrust resources\u201d that the State of Oregon has a fiduciary obligation to protect from climate change impacts. The court rejected defendants\u2019 contention that such declarations would not amount to the sort of \u201cmeaningful relief\u201d required to make plaintiffs\u2019 claims justiciable. The appellate court declined to address the merits of plaintiffs\u2019 claims, indicating that such a determination would only be possible after the parties had litigated the merits and a court had declared \u201cthe scope of the public trust doctrine and defendants\u2019 obligations, if any, under it.\u201d<\/p>\n

\u00a0<\/strong>Citizens Against Airport Pollution v. City of San Jose<\/a><\/em><\/strong>, No. H038781 (Cal. Super. Ct. June 6, 2014; request for publication granted July 2, 2014): added to the \u201cState NEPAs\u201d slide. Petitioner challenged an addendum to the 1997 environmental impact report (EIR) for the City of San Jose\u2019s International Airport Master Plan. The addendum assessed the impacts of amendments to the Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets. The California Court of Appeal affirmed the trial court\u2019s rejection of the challenge. The appellate court was not persuaded that the changes to the Plan constituted a new project requiring a new EIR under CEQA. The court found that substantial evidence in the record showed that the changes to the Plan would not result in new significant impacts to noise levels, air quality, or burrowing owl habitat. The appellate court held that the City did not violate the 2010 CEQA guidelines for greenhouse gas emissions by failing to analyze greenhouse gas emissions in the addendum. The court concluded that the potential impact of greenhouse gas emissions did not constitute new information because information about greenhouse gas impacts was known or could have been known when the 1997 EIR and a 2003 supplemental EIR were prepared.<\/p>\n

\u00a0<\/strong>Alec L. v. McCarthy<\/a><\/em><\/strong>, No. 13-5192 (D.C. Cir. June 5, 2014): added to the \u201cCommon Law Claims\u201d slide. In an unpublished opinion, the D.C. Circuit Court of Appeals affirmed the district court\u2019s\u00a02012<\/a>\u00a0and\u00a02013<\/a>\u00a0orders that dismissed plaintiffs\u2019 lawsuit for lack of subject matter jurisdiction because it failed to raise a federal question. Plaintiffs argued that the federal defendants violated their obligation to protect the atmosphere under the public trust doctrine. The D.C. Circuit, like the district court, ruled that the public trust doctrine is a matter of state law.<\/p>\n

\u00a0<\/strong>Petrozzi v. City of Ocean City<\/em><\/strong>, No. 073596 (N.J. June 5, 2014): added to the \u201cAdaptation\u201d slide. The New Jersey Supreme Court denied without comment the City of Ocean City\u2019s request that it review the appellate court\u00a0decision<\/a>\u00a0that obligated the City to make restitutionary payments to property owners whose ocean views were affected after the height of a dune system created by the City increased beyond height limitations established in easements granted to the City.<\/p>\n

\u00a0<\/strong>Native Village of Point Hope v. Jewell<\/a><\/em><\/strong>, No.\u00a01:08-cv-00004-RRB (D. Alaska Apr. 24, 2014;\u00a0BOEM status report<\/a>, May 23, 2014; BOEM\u00a0notice of intent to prepare SEIS<\/a>, June 20, 2014): added to the \u201cStop Government Action\/NEPA\u201d slide. In January 2014, the Ninth Circuit Court of Appeals\u00a0ruled<\/a>\u00a0that the Bureau of Ocean Energy Management (BOEM) had based its environmental review of an oil and gas lease sale in the Chukchi Sea on inadequate information due to BOEM\u2019s reliance on an estimate of economically recoverable oil that many parties had said might significantly underestimate production. In April 2014, the federal district court for the District of Alaska\u00a0remanded<\/a>\u00a0the matter to BOEM for further analysis in keeping with the Ninth Circuit\u2019s opinion. The court ordered BOEM to provide bimonthly updates, and barred BOEM from removing suspensions on drilling in the lease area and from approving or \u201cdeeming submitted\u201d any exploration plans submitted by lessee. In May 2014, BOEM submitted its\u00a0first status report<\/a>, indicating that it had begun drafting a supplemental environmental impact statement (SEIS) and collecting and analyzing information to create a expanded exploration and development scenario to study on remand. BOEM estimated that it would issue its record of decision in March 2015. In June 2014, BOEM published a\u00a0notice of intent to prepare an SEIS<\/a>in the\u00a0Federal Register<\/em>.<\/p>\n

\u00a0<\/strong>NEW CASES, MOTIONS, AND NOTICES<\/strong><\/p>\n

Sierra Club v. Moser<\/a><\/em><\/strong>, No. 14-112008 (Kan. Ct. App.,\u00a0filed<\/a>\u00a0June 27, 2014): added to \u201cChallenges to Coal-Fired Plants\u201d slide. Sierra Club filed a challenge in the Kansas Court of Appeals to an air permit issued to Sunflower Electric Power Corporation authorizing construction of a coal-fired power plant in Holcomb, Kansas. The Kansas Department of Health and Environment reissued the permit in May after the Kansas Supreme Court\u00a0ruled<\/a>\u00a0in October 2013 that a permit issued in 2010 did not properly apply EPA standards. In its petition challenging the new permit, Sierra Club alleged substantive and procedural violations of the Clean Air Act, the Kansas Air Quality Act, and implementing regulations. The claimed violations included failure to incorporate greenhouse gas emissions standards in the permit.<\/p>\n

Transportation Solutions Defense and Education Fund v. California Air Resources Board<\/a><\/em><\/strong>, No. 14CECG01788 (Cal. Super. Ct.,\u00a0filed<\/a>\u00a0June 23, 2014): added to the \u201cState NEPAs\u201d slide. Petitioner challenged the California Air Resources Board\u2019s (CARB\u2019s) approval of the First Update to the Climate Change Scoping Plan (Update) and CARB\u2019s certification of a program-level environmental assessment for the Update. Petitioner claimed that CARB violated both the California Environmental Quality Act (CEQA) and the Global Warming Solutions Act of 2006 (AB 32). In particular, petitioner alleged that CARB had failed to take into account the greenhouse gas emissions associated with the high-speed rail project included in the Update, that CARB violated CEQA procedures, and that inclusion of the high-speed rail project violated AB 32.<\/p>\n

Communities for a Better Environment et al.,\u00a0Appeal of Long Beach Board of Harbor Commissioners\u2019 Ordinance Approving a New Operating Agreement with Metropolitan Stevedore Company and New Lease with Oxbow Energy Solutions, LLC<\/a>\u00a0<\/strong>(June 23, 2014): added to the \u201cState NEPAs\u201d slide. Communities for a Better Environment, Natural Resources Defense Council, and Sierra Club (represented by Earthjustice) filed an appeal with the City of Long Beach challenging the Port of Long Beach Board of Harbor Commissioners decision not to undertake a CEQA review in its consideration of a new operating agreement and lease, which the environmental groups contended would expand the export of coal from the port. Among the arguments advanced by the environmental groups was that a 1992 negative declaration was not sufficient to cover the approvals, in part because greenhouse gas emissions were not evaluated at that time. The groups also argued that the impacts of the export of coal on climate change must be considered, including emissions from transporting coal and burning it overseas.<\/p>\n

Monroe Energy, LLC v. EPA<\/a><\/em><\/strong>, No. 13-1265 (D.C. Cir. June 20, 2014): added to the \u201cChallenges to Federal Action\u201d slide. Respondent-intervenor National Biodiesel Board (NBB) filed a\u00a0petition for rehearing<\/a>\u00a0of a portion of the D.C. Circuit\u2019s decision upholding the 2013 Renewable Fuel Standards (RFS). NBB sought reconsideration of the holding that Monroe Energy, LLC had Article III standing to challenge the RFS. NBB argued that Monroe Energy\u2019s claimed energy was higher compliance costs resulting from third-party actions, and that Monroe Energy had produced no evidence that a decision in its favor would have redressed such an injury. NBB urged a rehearing to prevent the use of annual challenges to the RFS to raise questions about \u201cfundamental precepts\u201d of the program.<\/p>\n

In re Murray Energy Corp.<\/a><\/em><\/strong>, No. 14-1112 (D.C. Cir.,\u00a0filed<\/a>\u00a0June 18, 2014; states\u2019\u00a0amici curiae<\/em>\u00a0brief<\/a>\u00a0June 25, 2014): added to the \u201cChallenges to Federal Action\u201d slide. Murray Energy Corporation (Murray), the largest privately owned coal company in the United States, filed a petition for extraordinary writ in the D.C. Circuit Court of Appeals, seeking to enjoin EPA from conducting its\u00a0rulemaking<\/a>\u00a0to create greenhouse gas emission standards for existing power plants. Murray argued that the D.C. Circuit could bar EPA from continuing the rulemaking process because EPA had proposed to take actions beyond its power. Murray contended that because EPA imposed national standards on power plants under a rule issued under Section 112 of the Clean Air Act, which addresses hazardous air pollutants, it could not mandate state-by-state greenhouse gas emission standards under Section 111(d). Nine states filed a\u00a0brief<\/a>\u00a0in support of the petition.<\/p>\n

\u00a0<\/em><\/strong>Center for Biological Diversity v. Jewell<\/a><\/em><\/strong>, No. 14-1021 (D.D.C.,\u00a0filed<\/a>\u00a0June 17, 2014): added to the \u201cEndangered Species Act\u201d slide. The Center for Biological Diversity filed a lawsuit in the federal district court for the District of Columbia seeking to require the U.S. Fish and Wildlife Service to making required findings regarding the listing of nine species under the Endangered Species Act. The nine species include the San Bernardino flying squirrel, which the Center for Biological Diversity alleged was threatened by climate change\u2019s adverse impacts to its mixed-conifer, black-oak forest habitat.<\/p>\n

\u00a0<\/em><\/strong>Kunaknana v. United States Army Corps of Engineers<\/em><\/strong>, No.\u00a03:13-cv-00044-SLG (D. Alaska, materials in support of motions regarding further proceedings (ConocoPhillips\u00a0motion<\/a>\u00a0and\u00a0memorandum<\/a>, Corps\u00a0motion<\/a>, plaintiffs\u2019\u00a0submission<\/a>) June 17, 2014): added to the \u201cStop Government Action\/NEPA\u201d slide. The parties to the lawsuit challenging the granting of a wetlands permit to ConocoPhillips Alaska, Inc. by the United States Army Corps of Engineers could not agree on a course for further proceedings after the federal district court for the District of Alaska ruled that the Corps had not provided an adequate explanation for its decision not to prepare an SEIS. ConocoPhillips\u00a0requested<\/a>\u00a0a remand without vacatur,\u00a0asking<\/a>\u00a0that the remand period be limited to 90 days and that the scope of the remand only include remedying the errors identified by the court in the Corps\u2019 rationale and addressing post-2004 climate change information. The Corps also\u00a0requested<\/a>\u00a0a 90-day limited remand. Plaintiffs, on the other hand,\u00a0argued<\/a>\u00a0that vacatur of the permit was warranted.<\/p>\n

Center for Biological Diversity v. Jewell<\/a><\/em><\/strong>, No.\u00a01:14-cv-00991-EGS (D.D.C.,\u00a0filed<\/a>\u00a0June 10, 2014): added to the \u201cEndangered Species Act\u201d slide. Three environmental organizations filed a complaint in the federal district court for the District of Columbia seeking to compel the U.S. Fish and Wildlife Service to issue findings in response to their 2011 petition to list the Alexander Archipelago wolf as an endangered or threatened species under the Endangered Species Act. The Alexander Archipelago wolf is a subspecies of gray wolf that inhabits the islands and coastal mainland of Southeast Alaska. Plaintiffs alleged that the species faces a number of threats, including threats from climate change. The climate change threats include more severe winter storm events and above-normal snowfalls that adversely affect the wolf\u2019s primary prey species.<\/p>\n

Competitive Enterprise Institute v. United States National Security Agency<\/a><\/em><\/strong>, No. 14-cv-975 (D.D.C.,\u00a0filed<\/a>\u00a0June 9, 2014): added to the \u201cClimate Change Protestors and Scientists\u201d slide. The Competitive Enterprise Institute (CEI) and two other organizations commenced a FOIA lawsuit against the National Security Agency (NSA) in the federal district court for the District of Columbia. CEI and other entities had requested \u201cmetadata\u201d for text messaging, e-mail, and phone accounts used by EPA administrators. Plaintiffs alleged that the EPA officials had used personal email and phones to circumvent FOIA and the Federal Records Act, and that the metadata are therefore records under FOIA. The NSA refused to confirm or deny the existence of the records sought by CEI. CEI contended that there had been \u201cclear public admissions\u201d that the NSA had collected the type of metadata it sought, and that the agency was therefore precluded from responding in this fashion (known as a \u201cGlomar<\/em>\u201d response) to FOIA requests. Plaintiffs seek declaratory and injunctive relief, as well as attorney fees and other costs.<\/p>\n

Communities for a Better Environment v. Bay Area Air Quality Management District<\/a><\/em><\/strong>, No. CPF-14-513704 (Cal. Super. Ct.,\u00a0filed<\/a>\u00a0June 5, 2014): added to the \u201cState NEPAs\u201d slide. Petitioner commenced a lawsuit in California Superior Court challenging the issuance of a permit to Chevron USA Inc. for a modernization project at its refinery in Richmond, California. Petitioner alleged that the agency had not complied with CEQA requirements prior to issuing the permit. In particular, petitioners claimed that the Bay Area Air Quality Management District had failed to review the \u201cadditional and massive GHG emissions\u201d expected from the project (almost 1 million metric tonnes annually).<\/p>\n

County of Kings v. California High-Speed Rail Authority<\/a><\/em><\/strong>, No. 2014-80001861 (Cal. Super. Ct.,\u00a0filed<\/a>\u00a0June 5, 2014): added to the \u201cState NEPAs\u201d slide. Petitioners challenged the California High-Speed Rail Authority\u2019s approval of the 114-mile Fresno-to-Bakersfield section of California\u2019s high-speed train project. The lawsuit, filed in California Superior Court, alleged violations of CEQA; California\u2019s anti-discrimination law; the Williamson Act, which protects agricultural lands; and Proposition 1A, which authorized funding for the high-speed rail project. Petitioners contest the adequacy of the CEQA review in a number of impact areas. Their climate change-related claims included that the environmental impact report (EIR) should have been recirculated because the final EIR substantially reduced the anticipated greenhouse gas reduction benefits (a response to comments suggesting that the agency had failed to take improved fuel economy into account). Petitioners also alleged that emissions associated with the production of materials\u2014concrete, in particular\u2014used for construction of the section would offset twenty to thirty years of the section\u2019s purported greenhouse gas reduction benefits. Other lawsuits have been filed challenging the project:\u00a0Coffee-Brimhall LLC v. California High-Speed Rail Authority<\/em><\/strong>, No. 2014-80001859 (Cal. Super. Ct., filed June 5, 2014), and\u00a0City of Bakersfield v. California High-Speed Rail Authority<\/em><\/strong>, No. 2014-80001866 (Cal. Super. Ct., filed June 5, 2014);\u00a0County of Kern vs. California High Speed Rail Authority<\/em><\/strong>, No. 2014-80001863. (Cal. Super. Ct., filed June 6, 2014);\u00a0First Free Baptist Church of Bakersfield vs. California High Speed Rail Authority<\/em><\/strong>, No. 2014-80001864 (Cal. Super. Ct., filed June 6, 2014), and\u00a0Dignity Health vs. California High-Speed Rail Authority<\/em><\/strong>, No. 2014-80001865 (Cal. Super. Ct., filed June 6, 2014).<\/p>\n

Here are recent additions to the\u00a0<\/strong>Non-U.S. Climate Litigation Chart<\/strong><\/a>.<\/strong><\/p>\n

\u00a0<\/strong>Opinion of Advocate General Sharpston<\/em><\/strong><\/a>\u00a0(European Court of Justice [2014] Case C-426\/12): Advocate General Sharpston was asked for guidance as to the meaning of the term \u2018dual use\u2019 in the second indent of Article 2(4)(b) in relation to sugar production and lime fertilizer, the by-product arising from that process, of the Directive 2003\/96\/EC, which introduced a regime imposing minimum harmonized levels of taxation on all energy products and electricity. The referring court also asked whether national legislators are constrained by an EU concept of what constitutes dual use if they choose to introduce domestic measures in order to tax such energy products. The Advocate General answered that \u2018dual use\u2019 within the meaning of Article 2(4)(b) refers to where coal is used as heating fuel in a lime-kiln in order to generate carbon dioxide for the production of lime-kiln gas, which is subsequently used for the purification of the raw juice obtained from sugar beets, that process giving rise to the by-product earth foam. The Advocate General found that Member States may apply a more restrictive definition of dual use and choose to tax dual use energy products, provided they exercise their competence consistently with EU law. If a Member State chooses to apply such a narrower definition, a taxpayer cannot invoke a broader EU concept of dual use in order to obtain exoneration from a charge to tax imposed under national law. —\u00a0Added to<\/em>\u00a0\u201cSuits against Governments: GHG Emissions Reductions and Trading: Other\u201d Slide<\/em><\/p>\n

Regina v. Dosanjh<\/em><\/strong><\/a>\u00a0<\/em><\/strong>(United Kingdom, Court of Appeal [2013] EWCA Crim 2366): The defendants were involved in manipulation of the EU Emissions Trade Scheme, running companies that formed two artificial \u2018trading chains\u2019 through which the fraud was operated. They were convicted of the common law offense of conspiring to cheat the public revenue and sentenced to terms of imprisonment of 15 years, 11 years and 9 years, respectively. The defendants appealed the sentences, arguing that (1) it was wrong in principle to pass a sentence which was longer than the maximum penalty available for the equivalent statutory offences or for the cognate common law offence of conspiracy to defraud; and (2) the sentence of 15 years was, on the facts of the case, manifestly excessive.\u00a0 The court stated that Parliament had deliberately not decided the offense of cheating the revenue. Parliament had left the offense of conspiracy to cheat the public revenue from statutory charge, both in existence and the penalty at large, because it is of particular seriousness. In assessing whether or not the sentences were manifestly excessive, the court looked at previous decisions of the court and the draft guideline from the Sentencing Council, and noted that: cheating the revenue is a major drain on the public purse, and the defendants\u2019 actions were a serious level of offending, with an enormous amount of planning. However, the court determined that those sentences were too high and reduced the sentences to 13 years, 10 years and 8 years. —\u00a0Added to \u201cSuits against Individuals: Other Suits\u201d Slide<\/em><\/p>\n

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Update #64 July 2014 Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-US\u00a0climate litigation charts. The July\u00a0additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.) FEATURED DECISION […]<\/p>\n","protected":false},"author":768,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5673],"tags":[],"class_list":{"0":"post-2641","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"czr-hentry"},"yoast_head":"\nJuly Updates to the Climate Litigation Charts - Climate Law Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.law.columbia.edu\/climatechange\/2014\/07\/07\/july-updates-to-the-climate-litigation-charts\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"July Updates to the Climate Litigation Charts - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"Update #64 July 2014 Each month, Arnold & Porter and the Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-US\u00a0climate litigation charts. The July\u00a0additions are listed below. (If you know of any cases we’ve missed, please email us at columbiaclimate at gmail dot com.) 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