{"id":3064,"date":"2015-03-03T18:27:20","date_gmt":"2015-03-03T23:27:20","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=3064"},"modified":"2015-03-03T21:30:42","modified_gmt":"2015-03-04T02:30:42","slug":"march-2015-update-to-climate-litigation-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2015\/03\/03\/march-2015-update-to-climate-litigation-charts\/","title":{"rendered":"March 2015 Update to Climate Litigation Charts"},"content":{"rendered":"
<\/div>

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\u00a0U.S.<\/a>\u00a0and\u00a0non-U.S.<\/a>\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.<\/p>\n

Here are the additions to the\u00a0<\/strong>Climate Case Chart<\/strong><\/a>\u00a0since Update #71.<\/strong><\/p>\n

 <\/p>\n

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

California Appellate Court Upheld AB 32\u2019s Offset Program<\/p>\n

The California Court of Appeal ruled that the offset component of California\u2019s cap-and-trade program for greenhouse gas emissions did not violate the California Global Warming Solutions Act of 2006 (AB 32). Two environmental groups had charged that the offset program did not satisfy AB 32\u2019s additionality requirements, and in particular that the California Air Resources Board (CARB) had not ensured that offset projects\u2019 emission reductions would be \u201cin addition to \u2026 any other greenhouse gas emission reduction that otherwise would occur.\u201d The court was not persuaded by \u201cthe rather pedantic position\u201d that AB 32 required \u201cunequivocal proof\u201d that an offset project\u2019s emission reduction would not otherwise occur. The court called this interpretation \u201cunworkable\u201d and said that such a requirement would not account \u201cfor the fact that is virtually impossible to know<\/em> what otherwise would have occurred in most cases.\u201d The appellate court instead concluded that AB 32 delegated rulemaking authority to CARB to establish a \u201cworkable method of ensuring additionality\u201d and that CARB had not acted arbitrarily or capriciously in formulating the offset protocols. The court also ruled that AB 32 authorized CARB to grant early action credits for offset projects previously undertaken pursuant to Carbon Reserve protocols. Our Children\u2019s Earth Foundation v. California Air Resources Board<\/em><\/a>, No. A138830 (Cal. Ct. App. Feb. 23, 2015): added to the \u201cStop Government Action\/Other Statutes\u201d slide.<\/p>\n

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

Court Said Ex-Im Bank\u2019s Action Plausibly Included Activities on the High Seas, Not Just in Australia\u2014So Endangered Species Act Claim Regarding LNG Facility Financing Survived<\/p>\n

After initially dismissing an Endangered Species Act (ESA) challenge to Export-Import Bank of the United States (Ex-Im Bank) financing for the development and construction of two liquefied natural gas (LNG) projects located partially in Australia\u2019s Great Barrier Reef World Heritage Area, the federal district court for the Northern District of California denied a motion to dismiss an amended complaint. The court ruled in August 2014 that the action failed to state an ESA claim because the ESA\u2019s consultation requirements did not apply to \u201cagency action\u201d taken in foreign countries. After plaintiffs amended their complaint, however, the court concluded that they had alleged facts that plausibly showed that the Ex-Im Bank\u2019s actions included post-construction shipping activities occurring on the high seas, bringing the actions within the ESA\u2019s scope. The court noted that the Ex-Im Bank had funded the \u201cdownstream\u201d portions of the projects, including financing for construction of the LNG facilities and related infrastructure, including two marine jetties and loading berths to transfer LNG to tankers for shipping. Even though the Ex-Im Bank did not specifically provide funding for the shipping activities, the court said that it was \u201creasonable to infer\u201d that a primary objective of the projects was to ship LNG. Because the term \u201cagency action\u201d in the ESA is construed broadly, the court concluded plaintiffs had stated a plausible ESA claim. Center for Biological Diversity v. Export-Import Bank of the United States<\/em><\/a>, No. 12-cv-6325 (N.D. Cal. Feb. 20, 2015): added to the \u201cStop Government Action\/Other Statutes\u201d slide.<\/p>\n

After EPA Declined to Object to Permits for Three Texas Power Plants, Environmental Group Withdrew Lawsuit Seeking to Compel EPA Response<\/strong><\/p>\n

Environmental Integrity Project (EIP) and the U.S. Environmental Protection Agency (EPA) executed a settlement agreement on January 22, 2015, in which they resolved EIP\u2019s lawsuit asking a court to compel EPA to respond to EIP\u2019s petitions requesting that EPA object to Title V permits issued to three power plants by the Texas Commission on Environmental Quality. EPA issued an order<\/a> on January 23, 2015 denying the three petitions. EPA\u2019s denial addressed three concerns that remained pending after EIP and former party Sierra Club withdrew other issues. The remaining claims rejected by EPA related to the adequacy of monitoring requirements to ensure compliance with particulate matter limits during startup, shutdown, and maintenance at all three plants (an issue EPA said had not been raised during the public comment period), as well as deficiencies in the record supporting the indicator ranges to be monitored for one of the plants. EIP also argued that the permit for one of the plants\u2014the Big Brown plant\u2014should be modified to include a provision explicitly allowing use of \u201cany credible evidence\u201d to demonstrate noncompliance; EIP said this provision was made necessary by a federal court decision regarding the Big Brown plant that held that credible evidence could not be used in citizen suits to enforce emissions limits. EPA said that this issue had not been raised with reasonable specificity during the comment period and, moreover, that a petition would have to identify particular permit terms that excluded use of credible evidence. On February 20, 2015, EIP moved for voluntary dismissal of its lawsuit. EPA published notice<\/a> of its denial of the petitions in the February 23, 2015 issue of the Federal Register<\/em>, and indicated that any petition for review of the denial must be filed within 60 days of the notice. Environmental Integrity Project v. McCarthy<\/em><\/a>, No. 1:14-cv-01196 (D.D.C., notice of voluntary withdrawal Feb. 20, 2015): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.<\/p>\n

Federal Court Dismissed Challenge to EPA Approval of Washington and Oregon Impaired Waters Lists<\/strong><\/p>\n

The federal district court for the Western District of Washington granted summary judgment to EPA in the Center for Biological Diversity\u2019s challenge to EPA\u2019s approval in 2012 of Washington\u2019s and Oregon\u2019s lists of impaired waters under Section 303(d) of the Clean Water Act. Although both states\u2019 water quality standards implicate ocean acidification, which results from seawater\u2019s absorption of carbon dioxide from the atmosphere, neither Washington nor Oregon listed any waters as impaired based on ocean acidification. The Center for Biological Diversity charged that the absence of any such waters from the lists was arbitrary and capricious. As an initial matter, the court concluded that the Center for Biological Diversity had standing to bring the action, rejecting arguments raised by the Western States Petroleum Association and the American Petroleum Institute in an amicus curiae brief. The court concluded that the Center for Biological Diversity had established causation and redressability. The court reasoned that even though global atmospheric carbon dioxide\u2014which the amicus brief argued could not be addressed through a Clean Water Act mechanism\u2014was the primary driver of acidification, the Center for Biological Diversity had alleged that local activities also had a significant impact on ocean acidity and that local mitigation measures could address \u201chot spots\u201d of ocean acidification. Ultimately, however, the court found that EPA\u2019s approval of the impaired waters lists was neither implausible nor contrary to the evidence. The court also determined that EPA had reasonably concluded that Washington and Oregon assembled and evaluated all existing and readily available water quality data. Center for Biological Diversity v. EPA<\/em><\/a>, No. 13-cv-1866 (W.D. Wash. Feb. 19, 2015): added to the \u201cStop Government Action\/Other Statutes\u201d slide.<\/p>\n

Biofuel Company Withdrew Challenge to Delay in 2014 Renewable Fuel Standards<\/strong><\/p>\n

Plant Oil Powered Diesel Fuel Systems, Inc. filed a motion for voluntary dismissal of its petition challenging EPA\u2019s announcement that it would not finalize the 2014 applicable percentage standards for the Renewable Fuel Standard (RFS) program until 2015. The petition, filed just a month earlier, had asserted that EPA\u2019s notification constituted agency action adopting the 2014 RFS standards proposed in November 2013. Plant Oil Powered Diesel Fuel Systems, Inc. v. EPA<\/em><\/a>, No. 15-1011 (D.C. Cir., motion for voluntary dismissal Feb. 17, 2015): added to the \u201cChallenges to Federal Action\/Clean Air Act\u201d slide.<\/p>\n

Mississippi Supreme Court Ordered Refunds to Ratepayers for Illegal Rate Increase for Kemper Project<\/p>\n

The Mississippi Supreme Court held that Mississippi law did not empower the Mississippi Public Service Commission (MPSC) to authorize 2013 rate increases for the Kemper Project, which includes a carbon capture system cited by EPA as an example of a viable technology in its proposed new source performance standards for coal-fired power plants. The court ruled that the Base Load Act (a 2008 law that made it possible for utilities to recover costs prior to a facility becoming operational) did not provide a basis for the rate increases. The court\u2019s judgment requires that Mississippi Power Co. (MPC) refund ratepayers for payments attributable to the rate increases. The court further ruled that the increased rates were confiscatory takings and that ratepayers had been denied due process because of the lack of proper notice. The court also invalidated a 2013 settlement agreement that preceded the rate increase. The court said that the 2013 rate increase resulted from the settlement agreement, in which MPC agreed to abandon its appeal of an earlier denial of a rate increase, and that MPSC lacked authority to enter into a settlement agreement reached during private meetings. Mississippi Power Co. v. Mississippi Public Service Commission<\/em><\/a>, No. 2012-UR-01108-SCT, and Blanton v. Mississippi Power Co.<\/em><\/a>, No. 2013-UR-00477-SCT (Miss. Feb. 12, 2015): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.<\/p>\n

FTC Found No Violation of Law by Green Mountain Power But Advised Clear and Consistent Communications Regarding Renewable Energy<\/p>\n

On February 5, 2015, the Federal Trade Commission (FTC) sent a letter to counsel for Green Mountain Power Corporation (GMP) expressing concern that GMP might have created confusion for its customers about the renewable attributes of the power they purchased because GMP might not have \u201cclearly and consistently communicated\u201d that GMP sells renewable energy certificates (RECs) for most of its renewable energy-generating facilities to entities outside Vermont. FTC sent the letter after receiving a petition<\/a> from the Environmental and Natural Resources Law Clinic at Vermont Law School on behalf of several Vermont citizens. In the February 5 letter, the FTC said that no findings had been made that any GMP statements violated the Federal Trade Commission Act, but urged that GMP prevent future confusion by clearly communicating the implications of its REC sales\u2014namely, that when GMP sells RECs tied to a particular renewable energy facility, it may no longer characterize the power delivered from that facility as renewable. Letter from Federal Trade Commission to Counsel for Green Mountain Power Corp.<\/a> (Feb. 5, 2015): added to the \u201cRegulate Private Conduct\u201d slide.<\/p>\n

Natural Gas Industry Groups Dropped Challenges to Greenhouse Gas Reporting Rule<\/p>\n

The American Gas Association and the Interstate Natural Gas Association of America moved to voluntarily withdraw their challenges to EPA\u2019s greenhouse gas reporting rule. The groups filed challenges in 2011 and 2012. American Gas Association v. EPA<\/em><\/a>, Nos. 11-1020, 12-1108\u00a0 (D.C. Cir., motion for voluntary dismissal Feb. 4, 2015); Interstate Natural Gas Association of America<\/em>, No. 11-1027 (D.C. Cir., motion for voluntary dismissal Feb. 20, 2015): added to the \u201cChallenges to Federal Action\/Clean Air Act\u201d slide.<\/p>\n

Federal Court Upheld Tennessee Valley Authority Decision to Switch to Natural Gas at Kentucky Facility<\/p>\n

The federal district court for the Western District of Kentucky granted summary judgment to the Tennessee Valley Authority (TVA) in an action challenging TVA\u2019s plan to retire coal-fired electric generating units and replace them with a new natural gas plant at a facility in Muhlenberg County, Kentucky. TVA\u2019s National Environmental Policy Act procedures provide that a new power generating facility usually requires an environmental impact statement (EIS), but the court agreed with TVA that it had discretion to determine whether an EIS was warranted in a particular case. In this case, TVA determined there would be no major environmental impacts, and that there would in fact be environmental benefits, including significant benefits to regional air quality, a significant reduction in carbon dioxide emissions, reductions in water withdrawals and heated discharges into the Green River, and reduction of the production of coal combustion waste. The court upheld all the challenged aspects of TVA\u2019s review. It rejected claims that TVA failed to consider the importance of the availability of an adequate supply of electricity at a reasonable price and that it did not consider the significant employment impacts if the facility stopped burning coal. The court also concluded that the assessment of impacts did not improperly segment the decommissioning of the coal-fired units (which the court characterized as a \u201ctoo speculative\u201d possibility) or the construction and operation of a natural gas pipeline (the impacts of which the court determined TVA had assessed to the extent possible). Nor was the court persuaded by plaintiffs\u2019 contentions that TVA had understated emissions of greenhouse gases from natural gas, that it arrived at a predetermined outcome, or that it had used an improper no action alternative. The court also determined that TVA\u2019s decisionmaking regarding least-cost planning under the Tennessee Valley Authority Act of 1933 was not arbitrary and capricious. Plaintiffs have appealed the court\u2019s judgment to the Sixth Circuit. Kentucky Coal Association v. Tennessee Valley Authority<\/em><\/a>, No. 4:14CV-00073 (W.D. Ky. Feb. 2, 2015, amended Feb. 3, 2015): added to the \u201cChallenges to Federal Action\u201d slide.<\/p>\n

Massachusetts Land Court Found Intent to Abandon Nonconforming Cottage Destroyed by Hurricane<\/strong><\/p>\n

After a hurricane damaged a cottage in Wareham, Massachusetts in 1991, its owners demolished the cottage, which did not conform to zoning requirements. The couple sold the property in 1993 for $5,000. In 2001, the new owner made his first attempt to obtain a permit to build a new residence on the property. In 2011, he received a special permit allowing him to build a house. The permit was challenged on the grounds that the owner had abandoned the residential structure and was not entitled to rebuild. The Massachusetts Land Court found an intent to abandon the residential structure. The court noted the low price the owner paid for the property and the unexplained eight-year gap between the time he purchased the property and the time when he first sought approval to rebuild. Chiaraluce v. Ferreira<\/em><\/a>, Nos. 11 MISC 451014, 11 MISC 451165 (Mass. Land Ct. Dec. 31, 2014): added to the \u201cAdaptation\u201d slide.<\/p>\n

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

Groups Sought Disclosure of SEC Communications with Ceres and New York Attorney General on Climate Change<\/p>\n

The Energy & Environment Legal Institute and the Free Market Environmental Law Clinic filed a Freedom of Information Act lawsuit (FOIA) against the Security and Exchange Commission (SEC). The lawsuit, filed in the federal district court for the District of Columbia, seeks to compel production of documents relating to the SEC\u2019s interactions with the investor-activist group Ceres and New York Attorney General Eric Schneiderman. The FOIA request<\/a> asked for text messages and emails containing specified climate change-related terms. Energy & Environment Legal Institute v. United States Security & Exchange Commission<\/em><\/a>, No. 1:15-cv-00217 (D.D.C., filed<\/a> Feb. 12, 2015): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.<\/p>\n

Los Angeles and Other Parties Challenged Restrictive Kern County Ordinance on Biosolids Recycling<\/p>\n

The City of Los Angeles, two sanitation districts, two businesses involved in the recycling of biosolids, and the California Association of Sanitation Agencies commenced a lawsuit against Kern County and its board of supervisors and planning commission to challenge the\u00a0 \u201csurreptitious adoption\u201d of a zoning ordinance that would impose burdensome requirements on biosolids recycling. The plaintiffs-petitioners alleged violations of the California Environmental Quality Act and failures to provide required notices. They also alleged that the ordinance violated a writ issued in another proceeding that required preparation of an environmental impact report in connection with a zoning ordinance concerning land application of biosolids. Their petition-complaint alleged that land application of biosolids can replace use of chemical fertilizers, which accelerate climate change both because of the use of fossil fuels in their manufacture and because of their removal of organic carbon from the soil. City of Los Angeles v. County of Kern<\/em><\/a>, No. S-1500-CV-284100 (Cal. Super. Ct., filed<\/a> Feb. 10, 2015): added to the \u201cState NEPAs\u201d slide.<\/p>\n

Organizations Sought Decisions from EPA on Regulating Concentrated Animal Feeding Operations Under the Clean Air Act<\/p>\n

The Humane Society of the United States and four environmental organizations filed a lawsuit in the federal district court for the District of Columbia. They asked the court to require EPA to respond to their 2009 petition asking that concentrated animal feeding operations (CAFOs) be regulated as a source of air pollution under the Clean Air Act. The complaint alleged that air pollution from CAFOs endangers public health and welfare, including by contributing to climate change due to their emissions of methane and nitrous oxide. In a related action, six organizations sought a response from EPA to a 2011 petition asking the agency to identify ammonia as a criteria pollutant. Large livestock operations are the leading source of ammonia pollution. The complaint alleged that ammonia contributes to regional haze, which has been associated with climate impacts. Humane Society of the United States v. McCarthy<\/em><\/a>, No. 15-cv-0141 (D.D.C., filed<\/a> Jan. 28, 2015); Environmental Integrity Project v. EPA<\/em><\/a>, No. 15-cv-139 (D.D.C., filed<\/a> Jan. 28, 2015): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide.<\/p>\n

WildEarth Guardians Objected to Oil and Gas Leasing Analysis for Pawnee National Grassland<\/p>\n

WildEarth Guardians submitted an objection to the Rocky Mountain Region of the United States Forest Service concerning the Draft Record of Decision and Final Environmental Impact Statement for the Pawnee National Grassland Oil and Gas Leasing Analysis. WildEarth Guardians alleged that the Forest Service had violated the National Environmental Policy Act, the Clean Air Act, the Endangered Species Act, and the Arapaho-Roosevelt National Forest and Pawnee National Grassland Land and Resource Management Plan. Among the issues that WildEarth Guardians asserted had received insufficient attention were the climate impacts of post-leasing development of the oil and gas resources underlying the grasslands. WildEarth Guardians said that the Forest Service should have used the social cost of carbon protocol to account for carbon costs.\u00a0 WildEarth Guardians v. Casamassa<\/em><\/a> (U.S. Forest Service, filed<\/a> Jan. 20, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.<\/p>\n

Sierra Club Sued EPA over New Hampshire Power Plant<\/p>\n

Sierra Club filed a Clean Air Act citizen suit against the EPA Administrator asking the federal district court for the District of Columbia to compel EPA to grant or deny Sierra Club\u2019s petition asking the agency to object to an air pollution operating permit issued for coal-fired power plant in Portsmouth, New Hampshire. Sierra Club submitted the petition on July 28, 2014. The organization\u2019s objections to the permit concern allegedly inadequate controls for sulfur dioxide and particular matter. Sierra Club v. McCarthy<\/em><\/a>, No. 1:14-cv-02149 (D.D.C., filed<\/a> Dec. 18, 2014): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.<\/p>\n

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

In Canada, Court finds newspaper and journalists liable for defaming climate scientist. Professor Andrew Weaver, a renowned Canadian climate scientist, filed suit against the National Post, its publisher, and several journalists for defamation. Dr. Weaver\u2019s claims arose out of the defendants\u2019 publication of statements that allegedly injured Dr. Weaver\u2019s reputation as a climate scientist in the context of the \u201cClimategate\u201d controversy. Plaintiff Weaver sought an injunction requiring the newspaper to remove the allegedly false statements from its website and from any sites where the statements were reposted. The Supreme Court of British Columbia found that the defendants had defamed Dr. Weaver and that their statements were not protected by the defense of fair comment because the facts upon which they relied were false. The Court awarded Dr. Weaver $50,000 in general damages, and directed the defendants to remove the offending articles, require third parties to cease republication, and publish a retraction. Weaver v. Corcoran, et al.<\/em><\/a> (Canada, Supreme Court of British Columbia [2015] S102698)–Added to \u201cSuits against Corporations\u201d slide<\/em>.<\/p>\n

A EU Court finds that a German sugar refinery should not be penalized where the refinery\u2019s emissions report was corrected after the deadline and additionally allowances were surrendered.<\/strong> Nordzucker AG (\u201cNordzucker\u201d), a sugar refinery operator in Germany, produced an emissions report for 2005 pursuant to Directive 2003\/87\/EC, part of the European Union\u2019s greenhouse gas emissions trading scheme. Nordzucker\u2019s emissions report excluded emissions resulting from steam generation necessary to operate the refinery\u2019s drying facility on the basis of a letter from a German Ministry stating that such facilities were exempted from compulsory emissions trading schemes. An expert verified the report, and Nordzucker surrendered emissions allowances equal to the emissions stated in the report. Subsequently, the German Emissions Trading Authority examined Nordzucker\u2019s emissions report and found that it should have included emissions attributable to the refinery\u2019s drying facility. Nordzucker revised its emissions report and surrendered additional allowances.\u00a0 German authorities found Nordzucker liable for failing to timely surrender emissions allowances and levied a penalty as provided in Article 16(3) of Directive 2003\/87. After a series of appeals, the German Federal Administrative Court referred to the European Court of Justice the question whether excess emissions penalties apply where an operator surrenders allowances equal to emissions stated in a verified report, but where the report is later found to understate the operator\u2019s emissions and additional allowances are surrendered. The European Court of Justice found that such penalties should not apply and that, in such cases, national authorities should establish proportionate penalties taking into account relevant factual circumstances. Bundesrepublik Deutschland v. Nordzucker AG<\/em><\/a> (European Union, European Court of Justice [2015] C-148\/14)–Added to \u201cEU Emissions Trading Scheme\u201d slide<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com. Here are the additions to the\u00a0Climate Case Chart\u00a0since Update […]<\/p>\n","protected":false},"author":1434,"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-3064","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"czr-hentry"},"yoast_head":"\nMarch 2015 Update to 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\/2015\/03\/03\/march-2015-update-to-climate-litigation-charts\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"March 2015 Update to Climate Litigation Charts - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"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\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com. 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