{"id":4590,"date":"2016-12-12T09:55:24","date_gmt":"2016-12-12T14:55:24","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=4590"},"modified":"2016-12-12T09:55:24","modified_gmt":"2016-12-12T14:55:24","slug":"climate-litigation-chart-updates-december-2016","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2016\/12\/12\/climate-litigation-chart-updates-december-2016\/","title":{"rendered":"Climate Litigation Chart Updates – December 2016"},"content":{"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.<\/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 CLIMATE CASE CHART<\/a> SINCE UPDATE<\/span> #92.<\/strong><\/p>\n

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

Oregon Federal Court Said Young People Could Pursue Constitutional Claims to Compel Federal Climate Action<\/strong><\/p>\n

In an action seeking to compel federal action to reduce carbon dioxide emissions, the federal district court for the District of Oregon denied motions to dismiss public trust and due process claims against the United States and federal officials and agencies. The plaintiffs\u2014young people who alleged that excessive carbon emissions were threatening their future, a non-profit group, and \u201cFuture Generations\u201d represented by a climate scientist\u2014alleged that the defendants had known for decades of the dangers of carbon dioxide pollution and had nonetheless take actions that increased emissions. The court held that the action did not raise a nonjusticiable political question because it asked the court to determine whether defendants had violated the plaintiffs\u2019 constitutional rights, a question \u201csquarely within the purview of the judiciary.\u201d The court also concluded that the plaintiffs had adequately alleged standing to sue. In determining that the plaintiffs had adequately alleged a due process claim, the court said that the plaintiffs had asserted a fundamental right \u201cto a climate system capable of sustaining human life\u201d and that the plaintiffs\u2019 allegations regarding the defendants\u2019 role in creating the climate crisis, the defendants\u2019 knowledge of the consequences of their actions, and the defendants\u2019 deliberate indifference in failing to act to prevent the harm were sufficient to state a \u201cdanger-creation\u201d due process claim. In finding that the plaintiffs had adequately stated a public trust claim, the court said that it was not necessary to determine whether the atmosphere was a public trust asset because the plaintiffs had also alleged the claim in connection with the territorial sea, to which the Supreme Court had said \u201c[t]ime and again\u201d that the public trust doctrine applies. The court also rejected the arguments that the public trust doctrine does not apply to the federal government and that federal environmental statutes displaced public trust claims. The court also was not persuaded that plaintiffs lacked a cause of action to enforce public trust obligations, concluding that the public trust claims were substantive due process claims and that the Fifth Amendment provided a right of action. Juliana v. United States<\/em>, No. 6:15<\/span><\/span>-cv-01517-TC (D. Or. Nov. 10, 2016).<\/p>\n


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

D.C. Circuit Stayed Challenge to Aircraft Endangerment Finding to Permit Attempt at Administrative Resolution of Biogenic Issue<\/strong><\/p>\n

The D.C. Circuit Court of Appeals stayed a proceeding brought by Biogenic CO2 Coalition challenging the United States Environmental Protection Agency\u2019s (EPA\u2019s) endangerment finding for greenhouse gas emissions from commercial aircraft. In a consent motion requesting that the case be held in abeyance, the Coalition said that a stay would allow it to attempt to administratively resolve discrete issues with EPA concerning regulation of biogenic emissions. The Biogenic CO2 Coalition represents a cross-section of agricultural stakeholder interests, including producers of biomass feedstocks. The Coalition objects to EPA\u2019s failure to distinguish between biogenic and fossil fuel emissions, and has challenged the Clean Power Plan and the new source performance standards for greenhouse gas emissions on similar grounds. In those two proceedings, the D.C. Circuit has agreed to consider biogenic issues separately from other claims, and is also holding the biogenic claims in abeyance. Environmental Defense Fund moved for leave to intervene on EPA\u2019s behalf in the proceeding, as did Center for Biological Diversity, Friends of the Earth, and Sierra Club. Biogenic CO2 Coalition v. EPA<\/em>, No. 16-1358 (D.C. Cir. Nov. 16, 2016).<\/p>\n

D.C. Circuit Denied Another LNG Facility NEPA Challenge<\/strong><\/p>\n

In a two-page unpublished judgment, the D.C. Circuit Court of Appeals denied Sierra Club\u2019s petition for review challenging the Federal Energy Regulatory Commission\u2019s (FERC\u2019s) environmental review for a liquefied natural gas (LNG) project in Corpus Christi, Texas. The court said that it had explicitly rejected Sierra Club\u2019s arguments regarding consideration of indirect and cumulative effects in its earlier opinion in Sierra Club v. FERC<\/em>, No. 14-1275 (D.C. Cir. 2016), another challenge by Sierra Club to the National Environmental Policy Act (NEPA) review for an LNG project. The court also said it had already rejected Sierra Club\u2019s arguments regarding the social cost of carbon and regarding use of projects\u2019 consistency with federal greenhouse gas emission reduction goals as a tool. Sierra Club v. Federal Energy Regulatory Commission<\/em>, No. 15-1133 (D.C. Cir. Nov. 4, 2016).<\/p>\n

Texas Federal Court Allowed Exxon to Add New York Attorney General as Defendant in Challenge to Climate Change Investigations and Ordered Attorneys General to Appear in Texas for Depositions<\/strong><\/p>\n

On November 17, 2016, the federal district court for the Northern District of Texas ordered Massachusetts Attorney General Maura Healey to appear for a deposition in Texas on December 13<\/span><\/span> in Exxon Mobil Corporation\u2019s action against Healey and New York Attorney General Eric Schneiderman challenging the states\u2019 climate change investigations. A week earlier, the court granted Exxon leave to add Schneiderman as a defendant over Healey\u2019s objections; Exxon\u2019s amended complaint also added a conspiracy claim and a claim that federal law requiring disclosures to investors preempted the states\u2019 investigations. The court\u2019s deposition order also advised that Schneiderman should be available for deposition in Texas on December 13<\/span><\/span> but said that it would wait to enter an order until after Schneiderman filed an answer to the first amended complaint. On November 26, Healey filed a motion to vacate both the court\u2019s deposition order and an earlier jurisdictional discovery order in which the court expressed concern that Healey had commenced the Massachusetts investigation in \u201cbad faith,\u201d based in part on Healey\u2019s participation in a press conference with other state attorneys general and climate change advocates. Healey also asked the court to stay discovery until it had ruled on Healey\u2019s motion to dismiss the amended complaint, which was filed on November 28, and to issue a protective order prohibiting Exxon from taking her deposition. Healey also said the court should defer all activity in the case while a Massachusetts Superior Court considered Exxon\u2019s motion to set aside the civil investigative demand (CID). Healey argued that the court had abused its discretion by ordering discovery and issuing the deposition order where the court lacked personal jurisdiction, the action was unripe, and venue was improper. In addition, Healey argued that circumstances did not warrant deposition of a top executive department official or discovery in a collateral action challenging a lawful CID, and that the court\u2019s concerns regarding Healey\u2019s \u201cbad faith\u201d in commencing the Exxon climate change investigation would not justify discovery because the concerns would not trigger the bad faith exception to abstention under the Younger<\/em> doctrine. Healey also argued that it was common for state attorneys general to coordinate and to make public statements regarding coordinated investigations. Exxon opposed Healey\u2019s motion to vacate the deposition and discovery orders, arguing that the motion was improper and that the court had acted within its discretion to order jurisdictional discovery and Healey\u2019s deposition. In other developments in the case, Exxon issued a subpoena to Union of Concerned Scientists, seeking documents and other materials related to communications with state attorneys general, including materials related to the press conference involving the state attorneys general, and certain materials related to other events regarding climate change litigation<\/span> against fossil fuel companies, to political fundraising, and to Exxon and other fossil fuel companies. Exxon Mobil Corp. v. Schneiderman<\/em>, No. 4:16<\/span><\/span>-cv-00469-K (N.D. Tex.).<\/p>\n

Federal Court Allowed Oil and Gas Trade Groups to Intervene in NEPA Challenge to Leases<\/strong><\/p>\n

The federal district court for the District of Columbia allowed three oil and gas trade associations to intervene in a challenge to federal approvals of oil and gas leases on public lands in Colorado, Utah, and Wyoming. WildEarth Guardians and Physicians for Social Responsibility argued that the federal defendants had not complied with their obligations under the National Environmental Policy Act (NEPA) in approving the leases because the environmental review had not analyzed direct, indirect, and cumulative climate effects associated with the specific leasing authorizations challenged in this case as well as with federal oil and gas leasing at a programmatic level. The court said that the trade associations were entitled to intervene as of right because their members, who held leases challenged in the litigation<\/span>, had legally protectable interests that might be impaired by the litigation<\/span>. The court also said that the federal defendants did not adequately represent the intervenors\u2019 interests. The court declined to limit the associations\u2019 participation by requiring joint briefing or by confining their arguments to the existing claims. WildEarth Guardians v. Jewell<\/em>, No. 16-1724 (D.D.C. Nov. 23, 2016).<\/p>\n

Washington Federal Court Said Biological Opinion Had to Consider Climate Change Effects<\/strong><\/p>\n

The federal district court for the Eastern District of Washington ruled that a biological opinion prepared pursuant to the Endangered Species Act to consider the effects a fish hatchery\u2019s operations would have on endangered salmon and chinook was arbitrary and capricious because it did not adequately consider climate change effects. The court said that \u201c[t]he best available science indicates that climate change will affect stream flow and water conditions throughout the Northwest\u201d and that the lack of a model or study specifically addressing local climate change effects did not permit the National Marine Fisheries Service (NMFS) to ignore this factor. The court said that NMFS had included \u201cno discussion whatsoever\u201d of the potential effects of climate change on the hatchery\u2019s future operations and water use, and that it was not sufficient for NMFS to say that the local area at issue was less prone to climate change effects than other areas in the region. The court rejected other arguments regarding shortcomings in the biological opinion and related incidental take statement. Wild Fish Conservancy v. Irving<\/em>, No. 2:14<\/span><\/span>-CV-0306-SMJ (E.D. Wash. Nov. 22, 2016).<\/p>\n

California Appellate Court Said Environmental Review for Basketball Arena Did Not Need to Quantify Greenhouse Gas Emissions<\/strong><\/p>\n

The California Court of Appeal affirmed the denial of two petitions that challenged the environmental review and permitting for an arena for the National Basketball Association\u2019s Golden State Warriors and associated development in San Francisco. Among the arguments rejected by the appellate court was the petitioners\u2019 contention that the environmental review was inadequate due to its \u201cexclusive reliance\u201d on the project\u2019s compliance with San Francisco\u2019s greenhouse gas strategy to determine that the project would not have a significant effect on greenhouse gas emissions. The court said that guidelines issued pursuant to the California Environmental Quality Act (CEQA) explicitly authorized reliance on performance-based standards such as the greenhouse gas strategy and that the environmental impact report was not required to quantify expected emissions and the amount by which those emissions would be reduced by implementation of the greenhouse gas strategy and mitigation measures. The court also noted that in Center for Biological Diversity v. Department of Fish & Wildlife<\/em>, No. S217763 (2015), the California Supreme Court had \u201cexpressed approval for a methodology that uses consistency with greenhouse gas reduction plans as a significance criterion for project emissions under CEQA.\u201d The appellate court said that, contrary to the petitioners\u2019 argument, the Supreme Court had not held that quantification was necessary in every case. Mission Bay Alliance v. Office of Community Investment and Infrastructure<\/em>, No. A148865 (Cal. Ct. App. Nov. 29, 2016).<\/p>\n

Court of Appeals Followed California Supreme Court\u2019s Lead and Reversed Trial Court Decision That Upheld Greenhouse Gas Significance Analysis for Newhall Ranch<\/strong><\/p>\n

After the California Supreme Court ruled that CEQA findings regarding the significance of greenhouse gas emissions associated with the Newhall Ranch development in Los Angeles County were not supported by substantial evidence, the California Court of Appeal reiterated that conclusion in another case involving Newhall Ranch. In an unpublished opinion, the court cited the California Supreme Court\u2019s opinion in Center for Biological Diversity v. Department of Fish and Wildlife<\/em>, No. S217763 (2015), and noted that the parties agreed that the greenhouse gas emissions discussion in the instant case paralleled the discussion that the Supreme Court found lacking. The court therefore reversed the portions of a trial court\u2019s ruling that upheld the Los Angeles County Board of Supervisors\u2019 conclusion that the development\u2019s greenhouse gas emissions would not have a significant impact. Friends of the Santa Clara River v. County of Los Angeles<\/em>, No. B256125 (Cal. Ct. App. Nov. 3, 2016).<\/p>\n

New York Court Said Attorney General\u2019s Response to Competitive Enterprise Institute Request Did Not Comply with Freedom of Information Law<\/strong><\/p>\n

A New York Supreme Court agreed with the Competitive Enterprise Institute (CEI) that the New York Attorney General had not complied with its obligations under the Freedom of Information Law (FOIL) in response to CEI\u2019s request for common interest agreements with private parties and other state attorneys general regarding climate change investigations. The court indicated that the publication by a third party of a common interest agreement between state attorneys general did not moot CEI\u2019s claims, and ordered the New York Attorney General to provide more detail regarding its search for common interest agreements involving non-state parties. The court also said that the New York Attorney General had the burden of demonstrating that FOIL exemptions applied to any responsive records that it determined were not subject to disclosure. The court also ruled that CEI was entitled to attorney fees. Competitive Enterprise Institute v. Attorney General of New York<\/em>, No. 5050-16 (N.Y. Sup. Ct. Nov. 21, 2016).<\/p>\n

Delaware Court Said It Could Not Yet Resolve Question of Electric Consumers\u2019 Standing to Challenge RGGI Regulations<\/strong><\/p>\n

The Delaware Superior Court vacated its denial of a motion to amend a complaint challenging Delaware\u2019s regulations implementing the Regional Greenhouse Gas Initiative to correct the middle initial of a plaintiff. The court reversed its conclusion that amendment would be futile after the plaintiff (with the corrected initial) along with another plaintiff submitted affidavits indicating that they were personally responsible for payment of electric bills. (The court had previously ruled that the plaintiff would not have had standing as a stakeholder in a company that was a commercial purchaser of electricity.) Although the court allowed submission of the affidavits and amendment of the complaint, it said that the plaintiffs had not established standing and that discovery might show they had not paid electric bills during pertinent times or had not incurred increased costs. The court also denied the defendants\u2019 motion for summary judgment as to all the plaintiffs, indicating that it needed to hear the defendants\u2019 expert\u2019s testimony and cross-examination as to financial benefits received by electric consumers. Stevenson v. Delaware Department of Natural Resources & Environmental Control<\/em>, No. S13C-12-025 RFS (Del. Super. Ct. Nov. 7, 2016).<\/p>\n

FERC Reaffirmed Limitations on Scope of NEPA Review for Louisiana LNG Facility<\/strong><\/p>\n

FERC denied rehearing of its approvals for a liquefied natural gas (LNG) export terminal near Lake Charles, Louisiana, and related pipeline and compression facilities. FERC reaffirmed its conclusion that effects related to natural gas production, gas-to-coal switching, and foreign consumption of natural gas were not causally related to its approval of the Louisiana facilities, and stated that recent D.C. Circuit decisions concerning NEPA reviews for LNG facilities supported this determination. FERC said that even if such indirect effects, including greenhouse gas emissions, were causally related, they were not reasonably foreseeable. FERC also rejected the argument that it was required to consider the effect that the project would have together with other past, present, and future LNG export projects throughout the entire nation. In re Magnolia LNG, LLC<\/em>, Nos. CP14-347-001, CP14-511-001 (FERC Nov. 23, 2016).<\/p>\n

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

Supreme Court Review Sought of Polar Bear Critical Habitat Designation<\/strong><\/p>\n

Two petitions for writ of certiorari were filed in the United States Supreme Court seeking review of the Ninth Circuit Court of Appeals decision upholding the designation of critical habitat for the polar bear. The State of Alaska, Alaska native communities, Alaska Oil and Gas Association, and American Petroleum Institute asked the Court to take up the question of whether the Ninth Circuit\u2019s \u201cexceedingly permissive standard\u201d for critical habitat designation allowed it to designate \u201chuge geographic areas,\u201d much of which allegedly failed to meet statutory criteria, as critical habitat. Alaska Oil and Gas Association and American Petroleum Institute told the Court that the Ninth Circuit\u2019s \u201cexceptionally lax and inexact standard\u201d for the specificity with which the U.S. Fish and Wildlife Service (FWS) must make critical habitat designations allowed FWS to impose \u201csweeping designations\u201d without regard to whether all areas were critical or even helpful to species conservation. Alaska and Alaska native communities told the court that FWS\u2019s \u201chugely overbroad approach\u201d threatened the viability of \u201clongstanding, Native human<\/em>communities.\u201d State of Alaska v. Jewell<\/em>, No. 16-596 (U.S. Nov. 4, 2016); Alaska Oil & Gas Association v. Jewell<\/em>, No. 16-610 (U.S. Nov. 4, 2016).<\/p>\n

Waste Management Industry Filed Challenge to EPA Emissions Controls for Landfills<\/strong><\/p>\n

The National Waste & Recycling Association, the Solid Waste Association of North America, and three waste management companies filed a petition for review in the D.C. Circuit Court of Appeals challenging the United States Environmental Protection Agency\u2019s (EPA\u2019s) final rule establishing emission guidelines for municipal solid waste landfills. EPA published the final rule on August 29, 2016. The rule lowered the emissions threshold at which landfills\u2014which are a significant source of methane\u2014must install controls. Utility Air Regulatory Group also filed a petition for review challenging the emission guidelines. National Waste & Recycling Association v. EPA<\/em>, No. 16-1371 (D.C. Cir., filed Oct. 27, 2016); Utility Air Regulatory Group v. EPA<\/em>, No. 16-1374 (D.C. Cir., filed Oct. 28, 2016).<\/p>\n

Former Exxon Employee Filed Class Action Alleging Company and Officers Breached Fiduciary Duties to Retirement Plan Investors<\/strong><\/p>\n

A former employee of Exxon Mobil Corporation filed a class action lawsuit on behalf of himself and other current and former Exxon employees who participated in an Exxon retirement savings plan and invested in Exxon stock between November 1, 2015 and October 28, 2016. The complaint asserted claims under the Employee Retirement Income Security Act (ERISA) that Exxon and senior Exxon officials breached their fiduciary duties to participants in the Plan because they knew or should have known that Exxon\u2019s stock price was artificially inflated, making it an imprudent investment. The complaint alleged that the stock price was artificially inflated because Exxon failed to disclose that internally generated reports concerning climate change recognized the environmental risks caused by global warming and climate change; that due to risk associated with climate change Exxon would not be able to extract existing hydrocarbon reserves it claimed to have; and that Exxon had used an inaccurate price of carbon to calculate the value of certain oil and gas prospects. Fentress v. Exxon Mobil Corp.<\/em>, No. 4:16<\/span><\/span>-cv-03484 (S.D. Tex., filed Nov. 23, 2016).<\/p>\n

Exxon Investor Filed Securities Class Action for Failure to Disclose Climate Risks<\/strong><\/p>\n

A man who invested in Exxon stock during 2016 filed a securities fraud class action against Exxon and three Exxon officers in the federal court for the Northern District of Texas. The action was filed on behalf of purchasers of Exxon common stock between February 19, 2016 and October 27, 2016. The complaint alleged that Exxon\u2019s public statements during that period were materially false and misleading because they failed to disclose that internally generated reports concerning climate change recognized the environmental risks caused by global warming and climate change; that due to risk associated with climate change Exxon would not be able to extract existing hydrocarbon reserves it claimed to have; and that Exxon had used an inaccurate price of carbon to calculate the value of certain oil and gas prospects. The complaint alleged that as a result of positive statements Exxon made during the class period, the common stock price was artificially inflated, and that Exxon\u2019s release of its third quarter financial results on October 28, 2016, in which it disclosed it might have to write down 20% of its oil and gas assets, resulted in the stock price falling by more than $2 per share. Ramirez v. Exxon Mobil Corp.<\/em>, No. 3:16<\/span><\/span>-cv-3111 (N.D. Tex., filed Nov. 7, 2016).<\/p>\n

States, Oil and Gas Groups Challenged BLM Methane Rule for Oil and Gas Operations<\/strong><\/p>\n

Two petitions were filed in the federal district court for the District of Wyoming challenging the United States Bureau of Land Management\u2019s (BLM) final rule concerning methane emissions from oil and gas operations on federal and tribal lands. BLM said that the rule would cut flaring in half, curbing waste of public resources and reducing harmful methane emissions. One petition was filed by Western Energy Alliance and Independent Petroleum Association of America; the other was filed by Wyoming and Montana. The states called the regulations \u201ca blatant attempt by a land management agency to impose air quality regulations on existing oil and gas operations under the guise of waste prevention\u201d and charged that BLM did not have authority to regulate. The states asserted that the regulations\u2019 air quality controls conflicted with those established by EPA and the states under the Clean Air Act, and that the rule unlawfully attempted to take over regulation of state leases when state and federal tracts were combined through communitization agreements. The oil and gas trade groups also asserted that BLM was without authority to regulate air quality and also argued that the rule placed arbitrary limits on flaring; relied on flawed scientific, engineering, and economic assumptions and methodologies; improperly relied on EPA air quality rules; and conflicted with or usurped the primary jurisdiction of state and tribal governments. North Dakota has intervened in the state proceeding. Both sets of petitioners have asked the court for a preliminary injunction, and the court has scheduled a hearing on the requests for January 6, 2017<\/span><\/span>. The states argued that they would suffer \u201cimmediate sovereign and economic harm\u201d should the rule go into effect and that BLM would experience no actual harm if the court issued a preliminary injunction. The states argued that an injunction was in the public interest because it would prevent an illegal program from taking effect and because the injunction would not harm the interest in a clean environment or cause waste of federal minerals since the states were already taking action to control emissions. Wyoming v. United States Department of Interior<\/em>, No. 2:16<\/span><\/span>-cv-00285 (D. Wyo., filed Nov. 18, 2016); Western Energy Alliance v. Jewell<\/em>, No. 2:16<\/span><\/span>-cv-00280-MLC (D. Wyo., filed Nov. 15, 2016).<\/p>\n

After EPA Proposed Two-Year Consultation on Jobs Evaluation, Murray Energy Objected to Delay and Asked Court to Enjoin Rulemaking<\/strong><\/p>\n

On October 31, 2016, EPA submitted its plan for complying with the order by the federal district court for the Northern District of West Virginia requiring EPA to conduct evaluations pursuant to Section 321(a) of the Clean Air Act of loss or shifts in employment that result from implementation of the Clean Air Act. EPA said it would first consult with its Science Advisory Board (Board) regarding the analytic tools and methodologies for the evaluations, a process that EPA estimated could take more than two years. EPA said it would then take approximately 90 days to consider the Board\u2019s advice and set an evaluation schedule. Murray Energy Corporation and the other plaintiffs objected to EPA\u2019s plan, describing it as \u201cyet another in a long line of tactics to avoid timely recognition of the job losses caused by EPA\u2019s war on coal.\u201d The plaintiffs asked the court to order EPA to promptly comply with Section 321(a), to evaluate and report to the court \u201cthe job loss and shifts that may be attributable to EPA\u2019s war on coal\u201d; and to cease publication of new proposed and final rules \u201cin furtherance of the war on coal\u201d until it complied. Murray Energy Corp. v. McCarthy<\/em>, No. 5:14<\/span><\/span>-cv-39 (N.D. W. Va. compliance plan Oct. 31, 2016; plaintiffs\u2019 response Nov. 14, 2016).<\/p>\n

Groups Argued That Coal Mine Expansion Environmental Review Should Have Used Social Cost of Carbon<\/strong><\/p>\n

The plaintiffs in an action challenging federal approvals that would permit a Montana coal mine to expand by 7,000 acres filed a brief \u00a0in the federal district court for the District of Montana setting forth the shortcomings in the federal agencies\u2019 NEPA review. The plaintiffs\u2019 arguments included that the environmental assessment (EA) for expansion had failed to adequately consider the indirect and cumulative impacts of greenhouse gas emissions because, while the EA quantified the life-cycle emissions from mining, shipping, and burning the coal, it did not \u201cevaluate\u201d the impact. The plaintiffs argued that the defendants should have used the federal social cost of carbon to fulfill the obligation to evaluate the impact. The plaintiffs also cited the \u201chighly uncertain and highly controversial\u201d nature of air pollution emissions, including greenhouse gas emissions, as one factor warranting preparation of an environmental impact statement. Montana Elders for a Livable Tomorrow v. U.S. Office of Surface Mining<\/em>, No. 9:15<\/span><\/span>-cv-106-DWM (D. Mont. Nov. 4, 2016).<\/p>\n

Oil and Gas Trade Association Opposed Intervention by Conservation Groups in Suit to Compel Quarterly Federal Mineral Lease Sales<\/strong><\/p>\n

Western Energy Alliance opposed intervention by nine conservation groups in its action in the federal district court for the District of New Mexico seeking to compel the United States Bureau of Land Management to hold quarterly federal mineral sales. Western Energy Alliance said that the groups\u2019 request to intervene was premised on \u201cstraw man\u201d arguments that the Alliance had not raised in the action. The Alliance said its action was focused on the narrow issue of the BLM\u2019s ministerial obligation under the Mineral Leasing Act to conduct oil and gas lease sales at least quarterly whenever eligible lands are available, and that it was not seeking to curtail federal discretion over leasing or to limit environmental review. The Alliance said that the lawsuit therefore did not implicate an interest of the advocacy groups and that the federal defendants would adequately represent the groups\u2019 position, and that the groups therefore were not entitled to intervene as of right. The Alliance also urged the court not to grant permissive intervention. Western Energy Alliance v. Jewell<\/em>, No. 1:16<\/span><\/span>-cv-00912 (D.N.M. Nov. 2, 2016).<\/p>\n

Environmental Organization and Organic Farm Challenged New York\u2019s Plan to Subsidize Nuclear Plants<\/strong><\/p>\n

Hudson River Sloop Clearwater, Inc. and a commercial organic farm filed a proceeding in New York Supreme Court challenging what the petitioners characterized as the New York Public Service Commission\u2019s (PSC\u2019s) \u201cbailout program\u201d for nuclear power plants in New York. The action challenged by the petitioners was the Tier 3 Zero-Emissions Credit portion of the PSC\u2019s Order Adopting a Clean Energy Standard, which will require load-serving entities to purchase zero-emissions credits that a State entity will purchase from the qualifying nuclear facilities based on a formula for the social cost of carbon. The petitioners contended that the PSC\u2019s action violated the New York Public Service Law, including by using the social-cost-of-carbon metric to determine the nuclear subsidy. The petitioners also claimed that the PSC had committed procedural violations and had violated the State Environmental Quality Review Act. The petitioners asserted that the PSC had not used words with \u201ccommon and everyday meanings\u201d in violation of the State Administrative Procedure Act because nuclear energy \u201cis not, nor has ever been zero-emissions\u201d since it \u201croutinely emits greenhouse gases and radioactive and thermal emissions.\u201d The petitioners also said that the PSC had relied on the social cost of carbon in \u201can unclear, incoherent and inconsistent manner.\u201d Hudson River Sloop Clearwater, Inc. v. New York State Public Service Commission<\/em>, No. __ (N.Y. Sup. Ct., filed Nov. 30, 2016).<\/p>\n

New York Attorney General Asked State Court to Order Exxon\u2019s Production of Documents in Climate Change Investigation<\/strong><\/p>\n

In New York Supreme Court, the New York Attorney General moved to compel Exxon Mobil Corporation to respond to its November 2015 subpoena seeking climate change-related documents pursuant to New York anti-fraud laws. The attorney general said that approximately five months prior to its motion it had asked Exxon to prioritize production of documents concerning the company\u2019s valuation, accounting, and reporting of its assets and liabilities, and the impact of climate change on those processes, but that Exxon had not cooperated with this request. The attorney general told the court that despite acknowledging in New York court that the subpoena was valid, Exxon was \u201ceffectively moving to quash the subpoena\u201d in federal court in Texas. The attorney general attributed Exxon\u2019s delay in responding to its prioritization request as an effort to \u201cforestall judicial intervention\u201d in New York until it obtained an injunction from the federal court. On November 21, the New York court said it would deny the motion to compel but that if the parties could not reach an agreement\u00a0 on a date for production, it would fix a date and, if necessary, \u201carbitrate what are reasonable or unreasonable search terms.\u201d On December 1, the attorney general informed the court that though the parties had agreed in principle to a production schedule, they disagreed on \u201cthe parameters of what constitutes a reasonable production.\u201d The attorney general asserted that Exxon continued \u201cto insist on producing from a select group of custodians using search terms it has been advised repeatedly are inadequate.\u201d Specific gaps mentioned in the attorney general\u2019s letter to the court included documents regarding the proxy cost of carbon that Exxon said it used to integrate the impact of climate change into its business and information related to climate change and oil and gas reserves. The court scheduled a hearing for December 6. People v. PricewaterhouseCoopers LLP<\/em>, No. 451962\/2016 (N.Y. Sup. Ct. Nov. 14, 2016).<\/p>\n

E&E Legal Asked Virginia Court to Compel Attorney General to Release Climate Investigation Records<\/strong><\/p>\n

Energy & Environment Legal Institute and its executive director filed a lawsuit under the Virginia Freedom of Information Act seeking to compel the Attorney General of Virginia to release documents related to climate change and communications between the offices of Virginia and New York attorneys general. The petitioners had submitted two requests for records related to investigations of \u201cclimate denial,\u201d including documents related to the Common Interest Agreement among Virginia and other states. Richardson v. Herring<\/em>, No. __ (Va. Cir. Ct., filed Nov. 15, 2016).<\/p>\n

HERE ARE RECENT ADDITIONS TO THE <\/strong>NON-U.S. CLIMATE LITIGATION<\/span> CHART<\/a>.<\/p>\n

NAFTA Panel Awards U.S. Energy Firm Compensation for Losses from Stymied Offshore Wind Farm<\/strong><\/p>\n

Windstream Energy LLP, a New York company, challenged Ontario\u2019s 2011 moratorium on new offshore windfarms as a violation of provisions of the North American Free Trade Agreement (NAFTA). Ontario\u2019s moratorium blocked Windstream from performing under a $4 billion (C$5.2 billion) contract with the Ontario Power Authority to supply electricity from a planned 300 megawatt facility. Windstream sought $475 million (C$568 million) in damages and an instruction that the contract should go ahead. A three-member arbitration panel, acting pursuant to NAFTA\u2019s dispute resolution provision, delivered its decision confidentially to the parties on September 30, 2016. The parties have indicated that while most of Windstream\u2019s claims were dismissed, the panel awarded Windstream $19.2 million (C$25.2 million) in damages, $2.3 million (C$2.3 million) in costs, and recognized Windstream\u2019s contract as still \u201cin force.\u201d An important feature of the arguments in the case was the lack of any environmental justification for the moratorium. Windstream Energy LLC Inc. v. Canada<\/em>, Permanent Court of Arbitration, Case No. 2013-22 (2016)<\/p>\n

Environmental NGOs Challenge Norway\u2019s Issuance of Oil and Gas Lease on Constitutional Grounds<\/strong><\/p>\n

Two environmental NGOs are seeking a declaratory judgment from the Oslo District Court that Norway\u2019s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. Their petition highlights several key factual points:<\/p>\n