{"id":3125,"date":"2015-04-08T10:08:45","date_gmt":"2015-04-08T15:08:45","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=3125"},"modified":"2015-04-08T10:12:04","modified_gmt":"2015-04-08T15:12:04","slug":"april-2015-update-to-climate-litigation-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2015\/04\/08\/april-2015-update-to-climate-litigation-charts\/","title":{"rendered":"APRIL 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 latest additions to the\u00a0<\/strong>Climate Case Chart<\/a><\/strong><\/p>\n

Update #73 (April 8, 2015)<\/strong><\/p>\n

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

Massachusetts Court Rebuffed Challenge to Adequacy of State\u2019s Greenhouse Gas Reduction Measures<\/p>\n

A Massachusetts Superior Court ruled that the Massachusetts Department of Environmental Protection (MassDEP) had substantially satisfied the requirements of the Global Warming Solutions Act, a 2008 law that required MassDEP to \u201cpromulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.\u201d MassDEP argued that it had satisfied this mandate by developing three programs: limitations on sulfur hexafluoride leaks, participation in a regional cap-and-trade program for carbon dioxide emissions, and a Low Emission Vehicle program. The court found that each of these programs satisfied the statutory mandate, and said that the plaintiffs\u2019 \u201cvarious quarrels\u201d with the regulatory actions were \u201chypertechnical and overly exacting.\u201d One of the plaintiffs, Conservation Law Foundation, announced<\/a> on March 25, 2015 that it would appeal the decision. Kain v. Massachusetts Department of Environmental Protection<\/em><\/a>, No. SUCV2014-02551 (Mass. Super. Ct. Mar. 23, 2015): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.<\/p>\n

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

Federal Court Rejected EPA Defense That Coal Companies Lacked Standing to Bring Jobs Case<\/p>\n

The federal district court for the Northern District of West Virginia ruled that coal companies had standing to claim that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. The court said that the alleged injuries from the power industry\u2019s discontinuance of the use of coal were fairly traceable to EPA actions, including EPA\u2019s failure to conduct the employment evaluations. The court further found that such injuries would be redressable because conducting the evaluations could result in reversal of prior EPA actions. The court also found that the coal companies fell within the zone of interests protected by the Clean Air Act provision requiring the evaluations. In addition, the court held that the companies had procedural and informational standing. Murray Energy Corp. v. McCarthy<\/em><\/a>, No. 5:14-CV-39 (N.D. W. Va. Mar. 27, 2015): added to the \u201cChallenges to Federal Action\u201d slide.<\/p>\n

<\/p>\n

Arizona Court Upheld Decision to Withhold Emails of University of Arizona Climate Scientists<\/p>\n

The Arizona Superior Court in Pima County ruled that the Arizona Board of Regents did not act arbitrarily and capriciously when it denied access to more than 1,700 emails of two University of Arizona climate scientists. The emails were among documents requested by the Energy & Environmental Legal Institute pursuant to Arizona\u2019s public records law. Based on a representative set of 90 emails, the court concluded that the Board of Regents had properly withheld prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary on the ground that production of these emails \u201cwould have a chilling effect on the ability and likelihood of professors and scientists engaging in frank exchanges of ideas and information.\u201d The court noted that the Board of Regents had provided \u201ccompelling\u201d support of this position through the affidavits of scholars, academic administrators, and professors. Energy & Environment Legal Institute v. Arizona Board of Regents<\/em><\/a>, No. C20134963 (Ariz. Super. Ct. Mar. 24, 2015): added to the \u201cClimate Change Protesters and Scientists\u201d slide.<\/p>\n

Court Granted Request for Extradition of Man Allegedly Involved in Fraudulent Trading of Greenhouse Gas Emissions Allowances in Germany
\n<\/strong>
\nA magistrate judge in the federal district court for the Northern District of California granted the U.S. government\u2019s request for a certificate of extraditability in the case of a man charged in Germany with 89 counts of tax evasion. The charges in Germany include allegations of fraud in connection with the trade of greenhouse gas emissions allowances. In re Azizi<\/em><\/a>, No. 5:14-XR-90282 (N.D. Cal. Mar. 20, 2015): added to the \u201cRegulate Private Conduct\u201d slide.<\/p>\n

Federal Court Denied New Hampshire Power Plant Operator\u2019s Request to Intervene in Citizen Suit<\/strong><\/p>\n

The federal district court for the District of Columbia denied a power plant operator\u2019s motion to intervene in a citizen suit in which Sierra Club sued EPA for failing to respond to its petition concerning the operator\u2019s plant. Sierra Club asked EPA to object to a proposed permit for the plant, which is located in Portsmouth, New Hampshire, and sued when EPA did not respond to the petition. EPA and Sierra Club had reached a tentative agreement to settle the lawsuit; the power plant operator sought to intervene, arguing that otherwise its interests would not be adequately represented. The court concluded that the operator was not entitled to intervene as of right because Sierra Club\u2019s lawsuit involved only the timing of EPA\u2019s response and not the validity or terms of the operator\u2019s permit. The court also declined to grant permissive intervention because the parties had already reached a tentative settlement with which the operator\u2019s intervention could interfere. Sierra Club v. McCarthy<\/em><\/a>, No. 1:14-cv-2149 (D.D.C. Mar. 17, 2015): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.<\/p>\n

Massachusetts Court Dismissed Harvard Students\u2019 Divestment Lawsuit<\/strong><\/p>\n

The Massachusetts Superior Court dismissed an action in which Harvard students asked the court to compel Harvard University to divest from fossil fuel companies. The court ruled that the individual students did not have standing to claim mismanagement of charitable assets based on their status as students because their rights as students were \u201cwidely shared\u201d with thousands of other Harvard students and were not \u201cspecific\u201d and \u201cpersonal\u201d enough to endow them with standing. The court also rejected the students\u2019 argument that Harvard\u2019s investment in fossil fuels interfered with personal rights because it diminished their education in fields such as environmental law and because Harvard\u2019s funding of \u201cclimate change denial\u201d chilled academic freedom and impeded the students\u2019 association with \u201clike-minded colleagues.\u201d The court noted that these impacts were not \u201cpersonal\u201d to the plaintiffs since numerous other students would be affected. The court also found that the allegations were too speculative and conclusory. The court also dismissed the claim of \u201cintentional investment in abnormally dangerous activities.\u201d The court said that it was not its place either to recognize this proposed new tort action or to extend existing law on standing to permit the plaintiffs to litigate on behalf of \u201cFuture Generations,\u201d as they sought to do. The court also said that an \u201coverarching\u201d problem with the action was the absence of limitations on the subject matter and scope of this type of lawsuit. The court noted that while the student plaintiffs \u201cfervently believe\u201d that climate change poses the most serious threat to the world, other students would just as fervently believe that some other cause posed a serious threat. Harvard Climate Justice Coalition v. President and Fellows of Harvard College (\u201cHarvard Corporation\u201d)<\/em><\/a>, No. 2014-3620-H (Mass. Super. Ct. Mar. 17, 2015): added to the \u201cRegulate Private Conduct\u201d slide.<\/p>\n

New Mexico Appellate Court Said Judiciary Could Not Rely on Public Trust Doctrine to Compel Regulation of Greenhouse Gases<\/strong><\/p>\n

The New Mexico Court of Appeals ruled that courts could not require the state to regulate greenhouse gas emissions based on a common law duty arising from the public trust doctrine. The ruling affirmed a 2013 trial court decision granting summary judgment to the state in a case brought by WildEarth Guardians and parents on behalf of their minor child. The appellate court concluded that although the New Mexico constitution recognized a public trust obligation to protect natural resources, including the atmosphere, the obligation had been incorporated into and implemented by state constitutional and statutory provisions, including New Mexico\u2019s Air Quality Control Act. Therefore, the plaintiffs could not use a separate common law cause of action to make their arguments regarding the state\u2019s duty to protect the atmosphere. The appellate court noted that the plaintiffs had not appealed the New Mexico Environmental Improvement Board\u2019s repeal of restrictions on greenhouse gas emissions; nor had the plaintiffs proposed other greenhouse gas regulations pursuant to Air Quality Control Act. Sanders-Reed v. Martinez<\/em><\/a>, No. 33,110 (N.M. Ct. App. Mar. 12, 2015): added to the \u201cCommon Law Claims\u201d slide.<\/p>\n

California Supreme Court Agreed to Consider Whether CEQA Required Review of Consistency with 2005 Executive Order\u2019s Greenhouse Gas Emissions Targets<\/p>\n

The California Supreme Court granted the San Diego Association of Governments\u2019 (SANDAG\u2019s) petition for review of an appellate court decision that found that SANDAG\u2019s environmental review for its regional transportation plan was inadequate. In November 2014, the California Court of Appeal said that the review should have considered the plan\u2019s consistency with greenhouse gas emissions targets set in a 2005 executive order signed by Governor Arnold Schwarzenegger. The Supreme Court granted review only on the issue of whether compliance with the California Environmental Quality Act (CEQA) required an analysis of the regional transportation plan\u2019s consistency with the executive order\u2019s goals. Cleveland National Forest Foundation v. San Diego Association of Governments<\/em><\/a>, No. S223603 (Cal. Mar. 11, 2015): added to the \u201cState NEPAs\u201d slide.<\/p>\n

California Supreme Court Denied Review of Decision Setting Aside San Diego County\u2019s Climate Action Plan<\/p>\n

The California Supreme Court denied a petition for review of a lower appellate court decision that set aside San Diego County\u2019s approval of a climate action plan. The lower appellate court said that the climate action plan required preparation of a supplemental environmental impact report, and that the plan should have included enforceable mitigation measures. Sierra Club v. County of San Diego<\/em><\/a>, No. S223591 (Cal. Mar. 11, 2015): added to the \u201cState NEPAs\u201d slide.<\/p>\n

Though Critical of EPA FOIA Practices, Federal Court Declined to Impose Punitive Sanctions<\/strong><\/p>\n

The federal district court for the District of Columbia denied the request of the Landmark Legal Foundation (LLF) for punitive spoliation sanctions against EPA in a lawsuit brought to compel production of documents under the Freedom of Information Act (FOIA). LLF believed records it requested in August 2012 would reveal that EPA improperly delayed controversial environmental regulations prior to that year\u2019s presidential election. In 2013, the court allowed limited discovery after finding that LLF had raised questions of fact regarding whether certain records, including potentially relevant personal emails for certain EPA officials, had been excluded from EPA\u2019s records search. A year later, LLF sought sanctions, arguing that EPA had failed to search and recover relevant personal emails and text messages. In denying the sanctions motion, the court found that LLF had not presented sufficient evidence that EPA failed to preserve responsive documents in bad faith. The court, however, criticized EPA\u2019s response to the FOIA request, finding that some of the document searches could only have been done with \u201cabject carelessness\u201d and that an EPA employee had exhibited \u201cutter indifference\u201d to the agency\u2019s FOIA obligations. The court was also critical of EPA\u2019s \u201cbaffling\u201d refusal to take responsibility for its mistakes during the course of the litigation. Nonetheless, the court said that spoliation could not be inferred from EPA\u2019s delayed response, and that negligent failure to preserve records was not sufficient to warrant punitive sanctions. The court said, however, that it \u201cwould implore\u201d the executive branch to take steps to ensure that all EPA FOIA requests are \u201ctreated with equal respect and conscientiousness\u201d regardless of the requester\u2019s political affiliation. Landmark Legal Foundation v. Environmental Protection Agency<\/em><\/a>, No. 1:12-cv-01726 (D.D.C. Mar. 2, 2015): added to the \u201cForce Government to Act\/Other Statutes\u201d slide.<\/p>\n

Federal Court Dismissed Steel Company\u2019s Clean Air Act Citizen Suit Against Rival Company<\/strong><\/p>\n

The federal district court for the Eastern District of Arkansas dismissed a Clean Air Act citizen suit brought against a steel company by a rival steel company concerning a Prevention of Significant Deterioration permit issued by the Arkansas Department of Environmental Quality.\u00a0 The plaintiff\u2019s allegations included that the defendant had failed to satisfy Best Available Control Technology (BACT) requirements, including by conducting an improper greenhouse gas BACT analysis and by improperly eliminating carbon capture and sequestration as a control technology. The court dismissed the action as an impermissible collateral attack on a state-issued air permit. Nucor Steel-Arkansas v. Big River Steel, LLC<\/em><\/a>, No. 3:14-CV-00193 (E.D. Ark. Feb. 25, 2015): added to the \u201cRegulate Private Conduct\u201d slide.<\/p>\n

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

Competitive Enterprise Institute Sought EPA Correspondence Regarding Congressional Inquiries into Climate Research Funding<\/p>\n

The Competitive Enterprise Institute (CEI) filed a lawsuit against EPA to compel production of correspondence between EPA and four federal legislators concerning inquiries that the legislators had made regarding funding for climate research. CEI submitted its Freedom of Information Act requests to EPA in late February and early March 2015. The legislators whose correspondence is the subject of the requests are three senators who had sent letters to fossil fuel companies and trade associations seeking information about their funding of climate research and advocacy and a congressman who asked universities to provide information about climate researchers they employed. Competitive Enterprise Institute v. United States Environmental Protection Agency<\/em><\/a>, No. 1:15-cv-00466 (D.D.C., filed<\/a> Apr. 1, 2015): added to the \u201cClimate Protesters and Scientists\u201d slide.<\/p>\n

Challenge to Renewal Fuel Standard Delays Was Filed in District of Columbia Federal Court<\/p>\n

American Fuel & Petrochemical Manufacturers (AFPM) and American Petroleum Institute (API) filed an action in the federal district court for the District of Columbia to compel EPA to establish renewable fuel volume requirements for the 2014 and 2015 compliance years. The trade associations asserted that EPA had ignored its nondiscretionary duty to publish annual renewable fuel volumes and renewable fuel obligations by November 30 of the year preceding each compliance year. The trade associations also alleged that EPA had failed to respond to the organizations\u2019 2013 request for a partial waiver of the applicable renewable fuel volumes for 2014, which are established by the Clean Air Act. AFPM and API filed notices of their intent to file the lawsuit in November and December 2014. EPA announced<\/a> in the Federal Register<\/em> on December 9, 2014 that it would not finalize the 2014 standards until sometime in 2015; EPA has not yet proposed 2015 standards. American Fuel & Petrochemical Manufacturers v. McCarthy<\/em><\/a>, No. 1:15-cv-00394 (D.D.C., filed<\/a> Mar. 18, 2015): added to the \u201cChallenges to Federal Action\u201d slide.<\/p>\n

Trade Associations Challenged Constitutionality of Oregon Clean Fuels Program<\/p>\n

Three trade associations\u2014American Fuel & Petrochemical Manufacturers, American Trucking Association, and Consumer Energy Alliance\u2014filed a lawsuit in federal court in Oregon to enjoin the state\u2019s Clean Fuels Program. The plaintiffs claimed that the program, which requires reductions in the carbon intensity of fuels produced in or imported into the state, violates the U.S. Constitution\u2019s Commerce Clause because it discriminates against transportation fuels imported into Oregon and attempts to regulate economic activities such as extraction, production, and distribution of transportation fuels that occur outside Oregon\u2019s borders. The plaintiffs contended that the regulation of economic conduct outside the state also violates \u201cprinciples of interstate federalism embodied in the federal structure of the United States Constitution.\u201d The three organizations also claimed that the Clean Fuels Program violates the Supremacy Clause because it is preempted by federal laws, including the Clean Air Act, the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the federal Renewable Fuels Standard. American Fuel & Petrochemical Manufacturers v. O\u2019Keeffe<\/em><\/a>, No. 3:15-cv-00467 (D. Or., filed<\/a> Mar. 23, 2015): added to the \u201cChallenges to State Action\u201d slide.<\/p>\n

Trade Association Challenged Oregon Regulations for Clean Fuels Program<\/strong><\/p>\n

The Western States Petroleum Association (WSPA) filed a petition for judicial review in the Oregon Court of Appeals to challenge regulations adopted in January 2015 to implement Oregon\u2019s Clean Fuels Program. WSPA indicated in a press release that sufficient alternative fuels would not be available to meet the regulations\u2019 requirements.\u00a0 Western States Petroleum Association v. Oregon Commission on Environmental Quality<\/em>, No. A158944 (Or. Ct. App., filed Mar. 6, 2015): added to the \u201cChallenges to State Action\u201d slide.
\n
\nCEQA Lawsuit Challenged Refining Facility Project and Alleged Undisclosed Impacts from Increased Transportation and Refining of Low-Quality Oil Feedstocks
\n<\/strong>
\nCommunities for a Better Environment (CBE) filed a lawsuit in California Superior Court alleging that Contra Costa County failed to comply with the California Environmental Quality Act when it approved a project to allow Phillips 66 to modify and augment an existing facility to recover additional butane and propane. CBE contended that the environmental impact report (EIR) prepared for the project obscured the increase in refining of lower-quality oil feedstocks that would occur as a result of the project. CBE alleged that the EIR therefore did not adequately disclose impacts that would occur as a result of the transportation and refining of the lower-quality feedstocks, including, among other impacts, increased emissions of greenhouse gases. Communities for a Better Environment v. Contra Costa County<\/em><\/a>, No. N15-0301 (Cal. Super. Ct., filed<\/a> Mar. 4, 2015): added to the \u201cState NEPAs\u201d slide.<\/p>\n

Environmental Organizations Challenged Port of Seattle Lease for Shell Arctic Drilling Fleet<\/p>\n

Four environmental organizations filed a lawsuit against the Port of Seattle alleging that it had improperly entered into a lease pursuant to which it would\u00a0 serve as a homeport for Royal Dutch Shell\u2019s Arctic drilling fleet. The organizations claimed that the Port had illegally circumvented the State Environmental Policy Act and had therefore avoided a full assessment of the project\u2019s environmental impacts. The organizations also contended that the Port was required to obtain a revision of its substantial shoreline development permit prior to entering into the lease. Puget Soundkeeper Alliance v. Port of Seattle<\/em><\/a>, No. 15-2-05143-1 SEA (Wash. Super. Ct., filed<\/a> Mar. 2, 2015): added to the \u201cState NEPAs\u201d slide.<\/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 latest additions to the\u00a0Climate Case Chart […]<\/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-3125","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"czr-hentry"},"yoast_head":"\nAPRIL 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\/04\/08\/april-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=\"APRIL 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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