{"id":5038,"date":"2017-08-07T19:15:55","date_gmt":"2017-08-08T00:15:55","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5038"},"modified":"2017-08-07T19:15:55","modified_gmt":"2017-08-08T00:15:55","slug":"august-2017-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2017\/08\/07\/august-2017-updates-to-the-climate-case-charts\/","title":{"rendered":"August 2017 Updates to the Climate Case Charts"},"content":{"rendered":"
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Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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

In June,\u00a0the Sabin Center, in collaboration with APKS, officially launched a new version of the climate litigation charts at\u00a0https:\/\/climatecasechart.com<\/a>. The new website is more easily navigable and searchable than the prior version, and for many older cases includes updated information and documents.<\/p>\n

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART<\/a> SINCE UPDATE # 100.<\/strong><\/p>\n

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

Federal Courts Upheld \u201cZero Emission Credits\u201d for Nuclear Plants in Illinois and New York<\/strong><\/p>\n

Federal district courts in New York and Illinois upheld \u201czero emission credit\u201d (ZEC) programs intended to subsidize old nuclear power plants in the two states. New York\u2019s ZEC program is one component of the Clean Energy Standard adopted by the New York Public Service Commission. Illinois\u2019s ZEC program was created by the Future Energy Jobs Act, which granted ZECs to qualifying facilities, which the Illinois court noted were \u201clikely to be two nuclear power plants owned by Exelon in Illinois.\u201d Plaintiffs challenging the New York program were electric generators and trade groups of electric generators; plaintiffs in the Illinois challenge were electric generators and their trade groups in one case and utility customers in a second case. Plaintiffs in both cases unsuccessfully argued that the ZEC programs were unconstitutional because they were preempted and violated the dormant Commerce Clause. The utility customers also made an equal protection claim. In the Illinois case, the court concluded that the plaintiffs largely lacked Article III standing for the preemption and dormant Commerce Clause claims but proceeded to address the merits. Both the Illinois and the New York federal courts agreed, though their reasoning was slightly different, that they did not have equity jurisdiction over the plaintiffs\u2019 claims that the Federal Power Act (FPA)\u2014which grants the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over the interstate wholesale electricity market\u2014preempted the state programs. The courts concluded that Congress intended to foreclose a private right of action, with both courts citing the FPA\u2019s provisions for a detailed remedial scheme before FERC and the Public Utility Regulatory Policies Act\u2019s addition to the FPA of a private cause of action for a narrow scope of challenges to state action. The Illinois court also found that the relief sought by the plaintiffs would require the court to apply \u201cjudicially unadministratable\u201d standards, but the New York court did not find this to be a barrier to equitable jurisdiction. Both courts also held that the FPA preemption claims would, in any event, fail on the merits. The courts\u2014looking to the Supreme Court\u2019s 2016 opinion in Hughes v. Talen Energy Marketing, LLC<\/em>\u2014said the states\u2019 ZEC programs did not impermissibly \u201ctether\u201d ZEC payments to participation in the wholesale capacity auctions and did not directly affect wholesale rates. The ZEC programs therefore avoided field preemption. The courts also found that the plaintiffs did not state a plausible claim for conflict preemption because the ZEC programs did not run afoul of FERC\u2019s goal of competitive and efficient energy markets. The New York court ruled that the plaintiffs did not have a cause of action to bring their dormant Commerce Clause claim because their alleged injuries did not fall within the zone of interests protected by the dormant Commerce Clause\u2014i.e., the economic interests of out-of-state entities. The New York court also held that the plaintiffs failed to state a dormant Commerce Clause claim because New York State acted as a market participant when it created ZECs. The Illinois court held that the plaintiffs did not have Article III standing to make their dormant Commerce Clause claim, and also concluded that no dormant Commerce Clause claim was stated because Illinois\u2019s statute did not preclude out-of-state generators from submitting bids for ZECs and was therefore not facially discriminatory, and there were no plausible allegations that the procurement process would be facially discriminatory. The Illinois court also concluded there was a substantial possibility that the implementation of the statute would be non-discriminatory in effect, rejected the argument that the statute had a discriminatory purpose, and said the state-created ZECs only indirectly burdened other generators\u2019 ability to participate in the wholesale market. The Illinois court also dismissed the utility customer plaintiffs\u2019 equal protection claim, finding that the ZEC program had rational basis grounded in the legislative goals of increasing reliance on zero-emission energy. The generator plaintiffs in the Illinois case filed a notice of appeal on July 17. Coalition for Competitive Electricity v. Zibelman<\/em><\/a>, No. 1:16<\/span><\/span>-cv-08164-VEC (S.D.N.Y. July 25, 2017; Village of Old Mill Creek v. Star<\/em><\/a>, Nos. 1:17<\/span><\/span>-cv-01164 and 1:17<\/span><\/span>-cv-01163 (N.D. Ill. notice of appeal<\/a> July 17, 2017; memorandum opinion and order<\/a> July 14, 2017).<\/p>\n


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

D.C. Circuit Said Administrative Stay of EPA Methane Standards for Oil and Gas Facilities Must Be Vacated Immediately<\/strong><\/p>\n

On July 31, 2017, the D.C. Circuit Court of Appeals ordered immediate issuance of the mandate vacating the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) administrative stay of portions of methane standards for oil and gas facilities. Earlier in July, the court held that the Clean Air Act did not authorize the stay and granted environmental groups\u2019 emergency motion to vacate the stay. The July 31 order followed a July 13 order partially granting EPA\u2019s motion to recall the mandate. The July 13 order recalled the mandate only for 14 days, stating that \u201c[t]o stay issuance of the mandate for longer would hand the agency, in all practical effect, the very delay in implementation\u201d that the court had determined was arbitrary, capricious, and in excess of EPA\u2019s authority. (Judge Janice Rogers Brown, in dissent, would have recalled the mandate and applied the court\u2019s normal timing rules rather than \u201ca truncated time-frame which shortchanges all sides.\u201d) The court issued the July 31 order on its own motion after receiving petitions for rehearing en banc from two sets of intervenors (11 states and oil and gas trade groups) but not from EPA itself. Two judges\u2014Judge Brown and Judge Brett M. Kavanaugh\u2014would not have issued the mandate. Briefing on the rehearing petitions was completed on August 3, 2017. Clean Air Council v. EPA<\/em><\/a>, No. 17-1145 (D.C. Cir. order<\/a> July 31, 2017; state intervenor-respondents\u2019 petition for rehearing en banc<\/a> July 28, 2017; trade group intervenor-respondents\u2019 petition for rehearing en banc<\/a> July 27, 2017; order<\/a> July 13, 2017; EPA motion to recall mandate<\/a> July 7, 2017).<\/p>\n

D.C. Circuit Remanded Renewable Fuel Volume Requirements to EPA<\/strong><\/p>\n

The D.C. Circuit Court of Appeals vacated and remanded EPA\u2019s decision to reduce the total renewable fuel volume requirements for 2016 based on its \u201cinadequate domestic supply\u201d waiver authority. The court held that the Clean Air Act Renewable Fuel Program\u2019s waiver provision authorized EPA to consider \u201csupply-side<\/em> factors affecting the volume of renewable fuel that is available to refiners, blenders, and importers<\/em> to meet the statutory volume requirements\u201d but did not permit EPA to \u201cconsider the volume of renewable fuel that is available to ultimate consumers<\/em> or the demand-side<\/em> constraints that affect the consumption of renewable fuel by consumers.\u201d The D.C. Circuit upheld other aspects of the renewable fuel volume requirements for 2014, 2015, and 2016, including EPA\u2019s authority to issue late biomass-based diesel volume requirements, EPA\u2019s use of actual volumes from 2014 and 2015 to minimize hardship to obligated parties, EPA\u2019s 2016 cellulosic biofuel projections, and EPA\u2019s interpretation and application of the cellulosic waiver provision, which the court said gave EPA discretion to consider demand-side constraints in the advanced biofuel marketplace. Because it remanded the final rule to EPA, the D.C. Circuit concluded it was not necessary to address the obligated parties\u2019 contention that EPA was required to reconsider its choice to apply the renewable fuel requirements to refiners and importers but not to blenders. The court said EPA could address the obligated parties\u2019 comments regarding this \u201cpoint of obligation\u201d issue on remand and noted that EPA also was in the process of reviewing petitions for reconsideration of its current point of obligation regulation. Americans for Clean Energy v. EPA<\/em><\/a>, Nos. 16-1005 et al. (D.C. Cir. July 28, 2017).<\/p>\n

Ninth Circuit Put Young People\u2019s Climate Lawsuit on Hold<\/strong><\/p>\n

On July 25, 2017, the Ninth Circuit Court of Appeals temporarily stayed district court proceedings in the lawsuit brought by a group of young people and \u201cfuture generations\u201d in federal district court in Oregon alleging that the federal government had violated their constitutional rights by contributing to the accumulation of greenhouse gases in the atmosphere. The United States filed a petition for writ of mandamus and request for stay in the Ninth Circuit on June 9, 2017, arguing that the district court\u2019s denial of its motion to dismiss the lawsuit was based on clear error. On July 28, 2017, the Ninth Circuit ordered the real parties in interest (the plaintiffs in the district court action) to file a response within 30 days<\/span><\/span>. The Ninth Circuit directed the parties to \u201caddress the status of all current discovery requests; report all pending discovery deadlines; and identify any ongoing or expected discovery disputes.\u201d The Ninth Circuit also said the parties should address whether the real parties in interest\u2019s constitutional challenge to Section 201 of the Energy Policy Act was within the district court\u2019s jurisdiction. (Section 201 concerns authorization of imports and exports of natural gas. In its petition, the United States contended that the plaintiffs\u2019 claim regarding an export authorization for an Oregon liquefied natural gas terminal was \u201cindisputably\u201d beyond the district court\u2019s jurisdiction because exclusive jurisdiction was vested in the courts of appeals.) The Ninth Circuit order said the district court could also file a response if it desired to do so. The judges on the panel are Alfred T. Goodwin (Nixon appointee), Alex Kozinski (Reagan appointee), and Marsha S. Berzon (Clinton appointee). United States v. United States District Court for the District of Oregon<\/em><\/a>, No. 17-71692 (9th Cir. stay order<\/a> July 25, 2017; order setting schedule<\/a> July 28, 2017).<\/p>\n

Montana Federal Court Allowed Wyoming to Intervene in Challenge to Lifting of Coal Leasing Moratorium<\/strong><\/p>\n

The federal district court for the District of Montana granted the State of Wyoming\u2019s motion to intervene in a lawsuit brought by four states to challenge the Department of the Interior\u2019s lifting of the Obama administration\u2019s moratorium on the federal coal leasing program. The court said Wyoming met the standard for intervention as of right because it contained a number of coal leases affected by the moratorium and because it occupied a different position than the United States due to its \u201cunique interests as a high volume coal producing state.\u201d California v. Zinke<\/em><\/a>, No. CV-17-42-GF-BMM (D. Mont. July 25, 2017).<\/p>\n

Texas Federal Court Ordered Prison Officials to Address Extreme Heat Conditions at State Prison<\/strong><\/p>\n

The federal district court for the Southern District of Texas granted a request for a preliminary injunction to redress conditions at a state prison alleged to create an unconstitutional risk of heat-related illnesses. The court found that the plaintiffs had shown a likelihood of success on the merits of an Eighth Amendment claim. The court found that the extreme heat inside and outside the prison placed stress on the human body and caused a risk of illness, and a heightened risk for heat-sensitive men, and that mitigation measures imposed at the prison were insufficient. The court noted that \u201c[t]he Court and the parties have no way of knowing when a heat wave will occur, but it is clear that one will come,\u201d taking judicial notice of a statement in a Sabin Center for Climate Change Law report on Heat in U.S. Prisons and Jails: Corrections and the Challenge of Climate Change<\/em><\/a> regarding climate scientists\u2019 forecasts that heat waves will become more frequent, more severe, and more prolonged. Cole v. Collier<\/em><\/a>, No. 4:14<\/span><\/span>-cv-01698 (S.D. Tex. July 19, 2017).<\/p>\n

Washington Federal Court Dismissed Challenge to Federal Preemption of Local Bans on Fossil Fuel Transit<\/strong><\/p>\n

The federal district court for the Eastern District of Washington dismissed an action in which the plaintiff alleged that the Interstate Commerce Commission Termination Act of 1995\u2019s (ICCTA\u2019s preemption of local restrictions on the transportation of coal and oil by rail within municipal boundaries violated their \u201cconstitutional right to a livable and healthy climate.\u201d The plaintiffs were the unsuccessful proponent of ballot initiatives that would have banned rail transit of coal and oil through Spokane, Washington and supporters of similar measures to ban fossil fuel trains in Spokane. The court held that the plaintiffs\u2019 claims were not justiciable because the issue was not ripe, the plaintiffs did not have standing, and any relief requested would amount to an advisory opinion. With respect to ripeness and standing, the court said the plaintiffs\u2019 alleged harm was not traceable to ICCTA, which did not prohibit passage of the ballot initiative but only application of certain laws. The court also found that any causal connection between the failed initiatives and Spokane\u2019s climate was \u201ctenuous, at best.\u201d Holmquist v. United States<\/em><\/a>, No. 2:17<\/span><\/span>-CV-0046-TOR (E.D. Wash. July 14, 2017).<\/p>\n

California Federal Court Hearing Challenge to Water Transfer Project Asked for More Briefing on Projected Climate Change Impacts<\/strong><\/p>\n

The federal district court for the Eastern District of California asked the parties to a challenge to a water transfer program for the Sacramento\/San Joaquin Delta to submit supplemental briefing on three issues related to the incorporation of climate change into the baseline used in the environmental review of the proposed program. The environmental review was conducted pursuant to both the National Environmental Policy Act (NEPA) and California Environmental Quality Act. The court asked the parties to address what record evidence supported the final environmental impact statement\/report\u2019s \u201capparently contradictory decision not to adjust the project baseline to reflect changes in water supply conditions projected to result from climate change\u201d in light of the record evidence projecting such impacts. The court also asked for discussion of the extent to which existing modeling approaches incorporated foreseeable climate change impacts into the baseline. In addition, the court asked for briefing on the extent to which NEPA still imposed a responsibility to incorporate reasonably foreseeable climate change impacts into the baseline given the Trump administration\u2019s withdrawal of the Council on Environmental Quality NEPA climate change guidance. (The court refers to the 2010 CEQ draft guidance, not the final 2016 guidance.) AquAlliance v. U.S. Bureau of Reclamation<\/em><\/a>, No. 1:15<\/span><\/span>-cv-00754-LJO-BAM (E.D. Cal. July 14, 2017).<\/p>\n

California Supreme Court Upheld San Diego Review of Long-Term Greenhouse Gas Impacts Associated with Regional Development Plan<\/strong><\/p>\n

The California Supreme Court ruled that the San Diego Association of Governments\u2019 (SANDAG\u2019s) review of greenhouse gas emissions associated with a regional development plan adequately disclosed information about the plan\u2019s greenhouse gas emissions and the plan\u2019s potential inconsistency with statewide goals for reductions in such emissions. The court therefore reversed lower courts\u2019 rulings that SANDAG\u2019s California Environmental Quality Act Review (CEQA) should have evaluated the significance of impacts against the 2005 executive order issued by Governor Arnold Schwarzenegger that set a goal of reducing emissions 80% below 1990 levels by 2050. The Supreme Court found that SANDAG\u2019s environmental impact report (EIR) \u201c[did] not obscure the existence or contextual significance of\u201d the executive order\u2019s target and \u201c[made] clear that the 2050 target is part of the regulatory setting in which the Plan will operate.\u201d The court said SANDAG\u2019s overall approach to evaluating greenhouse gas impacts was reasonable and adequately informed EIR readers. The Supreme Court stated, however, that \u201cwe do not hold that the analysis of greenhouse gas impacts employed by SANDAG in this case will necessarily be sufficient going forward. CEQA requires public agencies like SANDAG to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.\u201d One justice filed a dissenting opinion, writing that the EIR managed \u201cto occlude the elephant in the room\u2014that the plan was associated with a major projected increase in greenhouse gas emissions, diverging sharply from emission reduction targets reflecting scientific
\nconsensus.\u201d Cleveland National Forest Foundation v. San Diego Association of Governments<\/em><\/a>, No. S223603 (Cal. July 13, 2017).<\/p>\n

Vermont Court Ordered Attorney General to Produce Some Documents Related to Climate Change Coalition Common Interest Agreement<\/strong><\/p>\n

A Vermont state court ordered the Vermont attorney general to deliver documents to the Energy & Environment Legal Institute (EELI) in response to EELI\u2019s request under the Public Records Act for certain documents related to the Climate Change Coalition Common Interest Agreement (Agreement), which the attorney general had entered into with the attorneys general of several other states. EELI limited the scope of documents it sought to documents reflecting requests by parties to the Agreement to share records and parties\u2019 responses to such requests. The court said the Public Records Act\u2019s professional ethics confidentiality exemption did not cover all attorney general records, \u201cparticularly those of an administrative or operational nature.\u201d The court also declined to allow the attorney general to withhold documents from disclosure based on privilege grounded in a \u201ccommon interest doctrine.\u201d The court said that even if such a privilege existed, it would not apply to the documents sought by EELI, which were not attorney work product or attorney-client communications but \u201cdocuments related to administrative implementation of the Common Interest Agreement, which is itself a public document.\u201d Energy & Environment Legal Institute v. Attorney General of Vermont<\/em><\/a>, No. 558-9-16 (Vt. Super. Ct. July 27, 2017).<\/p>\n

EPA Panel Concluded Pruitt Statements Regarding Carbon Dioxide\u2019s Contribution to Climate Change Did Not Violate Agency\u2019s Scientific Integrity Policy<\/strong><\/p>\n

A panel convened from the EPA Scientific Integrity Review Committee concluded that EPA Administrator Scott Pruitt\u2019s comments during a television interview that he would not agree that carbon dioxide was \u201ca primary contributor to the global warming that we see\u201d did not violate the EPA Scientific Integrity Policy. The panel, which was convened in response to a request filed by the Sierra Club with the EPA Inspector General, stated that \u201c[e]xpressing an opinion about science is not a violation of the EPA Scientific Integrity Policy. Indeed, the Scientific Integrity Policy \u2013 in the spirit of promoting vigorous debate and inquiry \u2013 specifically encourages employees to express their opinion should the employee disagree with scientific data, scientific interpretations, or scientific conclusions.\u201d In his letter advising the Sierra Club of the panel\u2019s decision, the Director of the EPA Office of the Science Advisory said \u201c[t]he freedom to express one\u2019s opinion about science is fundamental to EPA\u2019s Scientific Integrity Policy even (and especially) when that point of view might be controversial.\u201d Letter from Director of EPA Office of the Science Advisor to Sierra Club<\/a> (undated).<\/p>\n

Oregon Land Use Board of Appeals Reversed Portland\u2019s Ban on New and Expanded Fossil Fuel Terminals<\/strong><\/p>\n

The Oregon Land Use Board of Appeals (Board) found that amendments to the City of Portland, Oregon, zoning ordinance prohibiting new bulk fossil fuel terminal and expansion of existing terminals violated the dormant Commerce Clause. The Board therefore reversed the amendments. The Board concluded the amendments were discriminatory in practical effect because, though facially neutral regarding the origin and destination of fossil fuels, the amendments were intended to preclude construction of new or expanded terminals that would serve interstate and international markets. The Board further found that the City had failed to demonstrate that the amendments served legitimate local interests\u2014including a desire to reduce Portland\u2019s contribution to climate change\u2014that could not adequately be served by reasonable nondiscriminatory alternatives. The Board said the City had identified nothing in the amendments directed at accomplishing the goal of reducing local contributions to greenhouse gas emissions and climate change and said that \u201cwe do not believe the city can, consistent with the dormant Commerce Clause, deliberately attempt to slow or obstruct the flow of fossil fuels from other states to consumers in other states or countries with the apparent goal or reducing generation of greenhouse gases elsewhere in the world, and justify that attempt as a legitimate local<\/em> interest.\u201d The Board also considered whether the amendments, even if deemed nondiscriminatory, could meet the Pike<\/em> balancing test under the dormant Commerce Clause and concluded that they could not, citing local benefits that were \u201cattenuated at best\u201d and the potentially significant burdens on national and international markets in fossil fuels. The Board also sustained some challenges to the amendments based on local, regional, and state standards. Columbia Pacific Building Trades Council v. City of Portland<\/em><\/a>, LUBA No. 2017-001 (July 19, 2017).<\/p>\n

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

California Counties and City Sued Fossil Fuel Companies for Climate Change Damages<\/strong><\/p>\n

Three local governments in California (San Mateo County, Marin County, and the City of Imperial Beach) filed separate lawsuits in California Superior Court alleging that fossil fuel companies\u2019 \u201cproduction, promotion, marketing, and use of fossil fuel products, simultaneous concealment of the known hazards of those products, and their championing of anti-regulation and anti-science campaigns, actually and proximately caused\u201d injuries to the plaintiffs, including more frequent and more severe flooding and sea level rise that jeopardized infrastructure, beaches, schools, and communities. Their complaints included claims for public nuisance, strict liability for failure to warn, strict liability for design defect, private nuisance, negligence, negligent failure to warn, and trespass. The relief sought by the local governments includes compensatory damages, abatement of the alleged nuisance, attorneys\u2019 fees, punitive damages, and disgorgement of profits. City of Imperial Beach v. Chevron Corp.<\/a><\/em>, No. C17-01227 (Cal. Super. Ct., filed July 17<\/span><\/span>, 2017); County of Marin v. Chevron Corp.<\/a><\/em>, No. CV1702586 (Cal. Super. Ct., filed July 17, 2017); County of San Mateo v. Chevron Corp.<\/a><\/em>, No. 17CIV03222 (Cal. Super. Ct., filed July 17, 2017).<\/p>\n

Groups Challenged Suspension of Greenhouse Gas Performance Measure for Highway System<\/strong><\/p>\n

Three organizations filed a lawsuit alleging that the Federal Highway Administration (FHWA) violated the Administrative Procedure Act when it suspended a greenhouse gas performance measure for tracking and setting reduction targets for carbon dioxide emitted from on-road mobile sources on the national highway system. The plaintiffs alleged that FHWA had suspended the measure without notice and comment and lacked good cause to do so. The measure was included in a final rule published on January 18, 2017<\/span><\/span>, which was to take effect on February 17, 2017. The final rule was subject to the regulatory freeze instituted by the Trump administration on January 20<\/span><\/span>. Subsequently, FHWA twice suspended the entire rule\u2014which contained provisions other than the greenhouse gas measure\u2014for set periods of time. On May 29, 2017, FHWA published notice that it was suspending the effective date for the greenhouse gas measure indefinitely. The greenhouse gas measure was promulgated under the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America\u2019s Surface Transportation Act (FAST Act). Clean Air Carolina v. U.S. Department of Transportation<\/a><\/em>, No. 1:17<\/span><\/span>-cv-5779 (S.D.N.Y. complaint filed July 31, 2017).<\/p>\n

Briefing Completed on Motions by Attorneys General to Dismiss Exxon Federal Lawsuit; Massachusetts Supreme Judicial Court to Hear Exxon Appeal of Order Requiring Compliance with Attorney General\u2019s Investigation<\/strong><\/p>\n

Briefing was completed for the motions by the Massachusetts and New York attorneys general to dismiss Exxon Mobil Corporation\u2019s (Exxon\u2019s) action in New York federal court to block the states\u2019 investigation of its climate change-related disclosures. New York Attorney General Eric Schneiderman in his reply papers asserted that Exxon\u2019s federal claims were not ripe and that the Colorado River<\/em> abstention doctrine compelled dismissal of \u201cthis duplicative and wasteful federal action.\u201d Schneiderman said Exxon\u2019s representations in New York state court that it had fully\u00a0 and voluntarily complied with the attorney general\u2019s subpoena \u201cfatally undermine[d]\u201d\u00a0 any claim of ripe injury. Schneiderman also said \u201cthe only conceivable effect of prospective<\/em> federal relief\u201d would be to interfere with the attorney general\u2019s inquiry into Exxon\u2019s alleged withholding or spoliation of evidence. Massachusetts Attorney General Maura Healey argued in her reply that a Massachusetts Superior Court order requiring Exxon to comply with her office\u2019s Civil Investigative Demand precluded Exxon\u2019s federal court action. Healey also argued that Exxon\u2019s opportunities to present its case in state court made its federal claims unripe and that the federal court should abstain on Colorado River<\/em> abstention grounds. On July 28, 2017, the Massachusetts Supreme Judicial Court sua sponte<\/em> ordered that Exxon\u2019s appeal of the Superior Court order be transferred to it from the intermediate appellate court, where the appeal had been fully briefed. In a subsequent letter to the federal court, Healey\u2019s office contended that this development provided additional support for abstention by the court. Exxon Mobil Corp. v. Schneiderman<\/em>, No. 1:17<\/span><\/span>-cv-02301-VEC (S.D.N.Y. Mass AG letter<\/a> Aug. 1, 2017; NYAG reply<\/a> June 30, 2017; Mass AG reply<\/a> June 30, 2017); Exxon Mobil Corp. v. Office of the Attorney General<\/a><\/em>, No. 2017-P-0366 (Mass. App. Ct. order transferring case July 28, 2017), No. SJC-12376 (Mass. transferred from Appeals Court Aug. 1, 2017).<\/p>\n

California, New Mexico, and Conservation and Tribal Groups Challenged Postponement of Compliance Dates for BLM\u2019s Methane Waste Rule<\/strong><\/p>\n

Two lawsuits were filed in the federal district court for the Northern District of California challenging the U.S. Bureau of Land Management\u2019s (BLM\u2019s) postponement of compliance dates for its \u201cWaste Prevention Rule,\u201d which set requirements to prevent the venting, flaring, or leaking of natural gas, including methane, on public and tribal lands. The Waste Prevention Rule went into effect in January 2017, and the notice of the postponement was published on June 15, 2017. The notice said \u201cserious questions\u201d had been raised regarding some of the rule\u2019s provisions and that postponement would preserve the regulatory status quo while litigation was pending<\/a> (in the District of Wyoming) and while the Interior Department reviewed and reconsidered the rule. One lawsuit was filed by California and New Mexico; the other lawsuit was filed by conservation and tribal groups. On July 26, the federal defendants moved to transfer the cases to the District of Wyoming, arguing that a transfer would be in the interests of justice because it would conserve judicial resources and prevent inconsistent judgments and that the Wyoming forum was also more convenient. Also on July 26, the states filed a motion for summary judgment, arguing that the Administrative Procedure Act did not authorize postponement of compliance states after the effective date for regulations had passed and that the postponement notice violated notice-and-comment requirements. The states also argued that BLM\u2019s justification for postponement was arbitrary and capricious. The conservation and tribal groups filed a motion for summary judgment on July 27. Like the states, the groups argued that the Secretary of the Interior lacked authority to stay compliance dates for an already-effective rule and that he could not alter the compliance dates without notice-and-comment rulemaking. Sierra Club v. Zinke<\/em>, No. 3:17<\/span><\/span>-cv-03885 (N.D. Cal. motion for summary judgment<\/a> July 27, 2017; complaint<\/a> July 10, 2017); California v. Zinke<\/em>, No. 3:17<\/span><\/span>-cv-03804 (N.D. Cal. motion to transfer<\/a> July 26, 2017; motion for summary judgment<\/a> July 26, 2017; complaint<\/a> July 5, 2017).<\/p>\n

Trump Administration and Trade Group Sought Dismissal of Lawsuit Challenging Revocation of President Obama\u2019s Withdrawal of Atlantic and Arctic Ocean Areas from Oil and Gas Leasing<\/strong><\/p>\n

Federal defendants and the American Petroleum Institute (API) moved to dismiss an action in Alaska federal court challenging President Trump\u2019s authority to issue the executive order of April 28, 2017 on \u201cImplementing an America-First Offshore Energy Strategy\u201d that reversed President Obama\u2019s withdrawal of lands in the Atlantic and Arctic Oceans from future oil and gas leasing. The federal defendants argued that the plaintiffs had not identified a private right of action or waiver of sovereign immunity and that separation of powers principles barred the relief sought. The federal defendants also said the plaintiffs\u2019 claims were unripe and that the plaintiffs lacked standing. API adopted and incorporated by reference the federal defendants\u2019 arguments and also argued that the judicial review was not yet available under the Outer Continental Shelf Lands Act (OCSLA) and would not in any event be available in the District of Alaska. League of Conservation Voters v. Trump<\/em>, No. 3:17<\/span><\/span>-cv-00101 (D. Alaska API motion to dismiss<\/a> July 28, 2017; federal defendants\u2019 motion to dismiss<\/a> June 30, 2017).<\/p>\n

Consolidated Complaint Filed in Securities Class Action Against Exxon<\/strong><\/p>\n

On July 26, 2017, the lead plaintiff in a federal securities class action against Exxon Mobil Corporation (Exxon) and four Exxon officers filed a 186-page consolidated complaint. The consolidated complaint alleged that Exxon was a \u201ccompany with a well-documented history of intentionally misleading the general and investing public with regard to the science concerning global climate change and its connection to fossil fuel usage, as well as the impact the changing climate is likely to have on Exxon\u2019s reserve values and long-term business prospects.\u201d The proposed class includes persons who acquired Exxon\u2019s publicly traded common stock between March 31, 2014 and January 30, 2017. The consolidated complaint alleged that the defendants made materially false and misleading statements regarding the value and amount of Exxon\u2019s oil and gas reserves and regarding Exxon\u2019s purported efforts to incorporate carbon or greenhouse gas proxy costs into the investment and valuation process for its oil and gas reserves. Ramirez v. Exxon Mobil Corp.<\/a><\/em>, No. 3:16<\/span><\/span>-cv-03111-K (N.D. Tex. July 26, 2017).<\/p>\n

Trump Administration Sought to Stay Action Alleging That Obama Administration Immigration Actions Required NEPA Review<\/strong><\/p>\n

A group of plaintiffs filed a complaint in the federal district court for the Southern District of California in October 2016 in which they alleged that the U.S. Department of Homeland Security (DHS) had failed to comply with NEPA when taking discretionary actions with respect to immigration. The plaintiffs included Arizona conservation districts, conservation district officials, nonprofit groups with missions to reduce or stabilize population growth and reduce immigration, and members of such organizations. The plaintiffs alleged that DHS discretionary actions resulted in in significant environmental impacts, including increases in greenhouse gas emissions, throughout the United States. The complaint alleged, among other things, that U.S. carbon dioxide emissions were increasing due to \u201cimmigration-driven population growth\u201d and that emissions associated with immigration to the U.S. were equal to five percent of the increase in global emissions since 1980. On June 1, 2017, the federal defendants filed a motion to stay the action, arguing that executive orders issued by President Trump required DHS to review and potentially rescind or revise many of the policies at issue, rendering the proceeding moot. Whitewater Draw Natural Resource Conservation District v. Johnson<\/em>, No. 3:16<\/span><\/span>-cv-02583-L-BLM (S.D. Cal. motion to stay<\/a> June 1, 2017; filed<\/a> Oct. 15, 2017<\/span><\/span>).<\/p>\n

Sierra Club Challenged Inclusion of Fossil Fuel Generation in California Distributed Resources Program<\/strong><\/p>\n

The Sierra Club commenced a proceeding in the California Court of Appeal to challenge the California Public Utilities Commission\u2019s decision to include fossil fuel generation within the scope of distributed resources eligible to participate in a distributed resources procurement program. The Sierra Club contended that inclusion of fossil fuel generation violated the plain meaning of the authorizing statute (Cal. Pub. Util. Code \u00a7\u00a0769), which defines distributed resources as \u201crenewable generation resources, energy efficiency, electric vehicles, and demand response technologies.\u201d Sierra Club v. California Public Utilities Commission<\/a><\/em>, No. A152005 (Cal. Ct. App. petition for writ of review July 31, 2017).<\/p>\n

Group Asked for Investigation into Whether Pruitt\u2019s Statements About Paris Accord Constituted Misuse of Appropriated Funds<\/strong><\/p>\n

American Democracy Legal Fund requested that the U.S. Comptroller General investigate whether EPA Administrator Scott Pruitt violated the Antideficiency Act by misusing appropriated funds. ADLF contended in a July 17, 2017 letter that Pruitt\u2019s public statements denouncing the Paris climate accord and encouraging lawmakers to defeat measures that would have affirmed U.S. support for the accord constituted unlawful communications for grassroots lobbying and publicity and propaganda purposes in violation of provisions of the Consolidated Appropriations Act of 2017. The letter said Pruitt\u2019s comments represented a misuse of appropriated funds. Letter from American Democracy Legal Fund to Comptroller General of the United States<\/a> (July 17, 2017).<\/p>\n

Citing Trump Executive Order, Companies Asked EPA to Reconsider Application of Greenhouse Gas and Fuel Efficiency Standards to \u201cGliders\u201d<\/strong><\/p>\n

Three companies submitted a petition for reconsideration of the application of EPA\u2019s greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles to \u201cgliders,\u201d which the petition describes as \u201cmedium- and heavy-duty trucks that are assembled by combining certain new truck parts (that together constitute a \u2018glider\u2019 kit) with the refurbished powertrain\u2014the engine, the transmission, and typically the rear axle\u2014of an older truck.\u201d The companies asserted that application of the standards to glider kits, glider vehicles, and rebuilt engines based on their date of assembly rather than on the age of the engine was \u201csudden and onerous\u201d and would have a \u201cdevastating impact\u201d on the glider industry and force small business to buy more expensive new vehicles. The companies argued that the Clean Air Act did not authorize EPA to regulate gliders, that EPA\u2019s prior decision to regulate gliders was based on unsupported assumptions rather than data, and that reconsideration was warranted based on President Trump\u2019s Executive Order on Promoting Energy Independence and Economic Growth. Petition for Reconsideration of Application of the Final Rule Entitled \u201cGreenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles\u2014Phase 2 Final Rule\u201d to Gliders<\/a> (July 10, 2017).<\/p>\n","protected":false},"excerpt":{"rendered":"

Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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. In June,\u00a0the Sabin Center, in […]<\/p>\n","protected":false},"author":1962,"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":[5680,5673,5705,8460,5676,9479],"tags":[],"class_list":{"0":"post-5038","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-clean-energy","7":"category-litigation","8":"category-energy-efficiency","9":"category-epa","10":"category-nepa","11":"category-online-resources","12":"czr-hentry"},"yoast_head":"\nAugust 2017 Updates to the Climate Case 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\/2017\/08\/07\/august-2017-updates-to-the-climate-case-charts\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"August 2017 Updates to the Climate Case Charts - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"Each month, Arnold & Porter Kaye Scholer LLP (APKS) 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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