{"id":5138,"date":"2017-09-07T16:24:08","date_gmt":"2017-09-07T21:24:08","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5138"},"modified":"2017-09-07T16:24:08","modified_gmt":"2017-09-07T21:24:08","slug":"september-2017-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2017\/09\/07\/september-2017-updates-to-the-climate-case-charts\/","title":{"rendered":"September 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

HERE ARE THE ADDITIONS TO THE\u00a0CLIMATE CASE CHART<\/a>\u00a0SINCE UPDATE # 101.<\/strong><\/p>\n

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

D.C. Circuit Said FERC Needed to Provide More Information on Pipelines\u2019 Downstream Greenhouse Gas Emissions\u2014Or Explain Why It Couldn\u2019t<\/strong><\/p>\n

In a split opinion, the D.C. Circuit Court of Appeals found that the environmental impact statement (EIS) prepared by the Federal Energy Regulatory Commission (FERC) for the Southeast Market Pipelines Project did not contain enough information on the greenhouse gas emissions that would result from combustion of the gas that the project would carry. When completed, the project\u2014which comprises three interstate natural-gas pipelines in the southeastern United States\u2014would be able to carry one billion cubic feet of natural gas per day. The D.C. Circuit concluded that \u201cat a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible\u201d because it was reasonably foreseeable that the transported gas would be burned in Florida power plants. The court distinguished its conclusion in earlier cases that FERC had no legal authority to consider the environmental effects of natural gas that would be exported from the liquefied natural gas (LNG) facilities it authorized. The D.C. Circuit said that while FERC was forbidden from relying on the environmental effects of gas exports as a justification for denying an upgrade license for an LNG facility, FERC\u2019s authority over pipelines permitted FERC to deny a pipeline certificate on the ground that it would be too harmful to the environment. The D.C. Circuit also was not persuaded by FERC\u2019s \u201cpractical objection\u201d regarding the impossibility of knowing \u201cexactly what quantity of greenhouse gases will be emitted as a result of this project being approved.\u201d The court said FERC should have either made a quantitative estimate of downstream greenhouse gas emissions or \u201cexplained more specifically\u201d why it could not do so. The court also indicated that the fact that downstream emissions might be offset by reductions elsewhere (from the retirement of coal-fired plants, for example) did not excuse FERC from making emissions estimates. In response to petitioner Sierra Club\u2019s argument that FERC should use the Social Cost of Carbon to convert emissions estimates to concrete harms, the D.C. Circuit directed FERC to explain in the EIS whether it would adopt the position it took in the EIS for an LNG terminal that the Social Cost of Carbon was not useful for purposes of environmental review under the National Environmental Policy Act. In addition to its holdings regarding FERC\u2019s greenhouse gas emissions analysis, the D.C. Circuit also determined as a threshold matter that the petitioners had standing to challenge all three segments of the pipeline project, not just the segment alleged to have caused an injury-in-fact and upheld other aspects of FERC\u2019s environmental review. Judge Janice Rogers Brown dissented on the issue of downstream emissions, writing that in her view such emissions did not need to be considered because FERC did not control whether the greenhouse gas emissions would occur.\u00a0Sierra Club v. Federal Energy Regulatory Commission<\/a><\/em>, No. 16-1329 (D.C. Cir. Aug. 22, 2017).<\/p>\n

<\/p>\n

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

Montana Federal Court Found NEPA Review of Coal Mine Expansion Should Have Included Downstream Greenhouse Gases<\/strong><\/p>\n

The federal district court for the District of Montana ruled that the U.S. Office of Surface Mining Reclamation and Enforcement\u2019s (OSM\u2019s) environmental review of a proposed federal mining plan modification for expansion of underground coal mining operations was not sufficient. The court found that OSM failed to take a hard look at indirect and cumulative effects of coal transportation and combustion and at foreseeable greenhouse gas emissions. Although OSM calculated the greenhouse gas emissions associated with coal transportation, the court found that it had not considered other reasonably foreseeable environmental impacts for which analysis would be \u201cpossible and not merely speculative.\u201d With respect to greenhouse gas emissions from coal combustion, the court found that OSM\u2019s quantification of such emissions was not sufficient, and that OSM should also have quantified the economic costs associated with emissions since it had quantified the modification\u2019s economic benefits. The Court also found that OSM should have considered non-greenhouse gas pollution associated with combustion. In addition, the court said OSM had improperly decided not to prepare an EIS despite \u201csignificant uncertainty about the critical issues,\u201d citing OSM\u2019s failure to adequately evaluate the plan modification\u2019s \u201ccontext\u201d beyond the local and regional levels and its failure to consider the plan modification\u2019s coal transportation and air pollution effects in its \u201cintensity\u201d analysis.\u00a0Montana Environmental Information Center v. U.S. Office of Surface Mining<\/a><\/em>, No.\u00a09:15<\/span><\/span>-cv-00106-DWM (D. Mont. Aug. 14, 2017).<\/p>\n

D.C. Circuit Upheld Department of Energy\u2019s Environmental Review for Authorization of LNG Exports from Texas Terminal<\/strong><\/p>\n

The D.C. Circuit Court of Appeals upheld the U.S. Department of Energy\u2019s (DOE) authorization of the export of liquefied natural gas (LNG) from the Freeport Terminal on Quintana Island in Texas, rejecting claims that DOE had not sufficiently examined environmental impacts under the National Environmental Policy Act (NEPA) or fulfilled its obligations under the Natural Gas Act. The court ruled that DOE had provided a \u201creasoned explanation as to why it believed the indirect effects pertaining to increased gas production were not reasonably foreseeable\u201d and had not failed to comply with NEPA \u201cby declining to make specific projections about environmental impacts stemming from specific levels\u201d of increased production. Similarly, the court found that DOE was not required to make specific projections about the indirect effects of a potential switch in the U.S. power sector from gas to coal in response to higher gas prices due to increased exports. The court also found that DOE had adequately considered the potential greenhouse gas emissions resulting from the indirect effects of exports, noting that DOE had evaluated the upstream and downstream emissions of carbon dioxide and methane from producing, transporting, and exporting LNG in a \u201cLife Cycle Report\u201d commissioned by DOE to supplement the EIS prepared by FERC. (The D.C. Circuit said DOE \u201cplainly relie[d]\u201d on the Life Cycle Report and another supplemental report to justify its hard look. The D.C. Circuit therefore considered both supplemental reports to be part of DOE\u2019s environmental review even though DOE argued that it complied with NEPA by adopting FERC\u2019s EIS.) The court was not persuaded that DOE was required to consider the cumulative impacts of other pending and anticipated LNG export approvals. The court also upheld DOE\u2019s \u201cpublic interest,\u201d finding under the Natural Gas Act, rejecting contentions that DOE had failed to thoroughly consider environmental concerns.\u00a0Sierra Club v. U.S. Department of Energy<\/a><\/em>, No. 15-1489 (D.C. Cir. Aug. 15, 2017).<\/p>\n

Ninth Circuit Upheld Determination That Desert Eagles Were Not a Distinct Population Segment Eligible for Listing Under Endangered Species Act<\/strong><\/p>\n

The Ninth Circuit Court of Appeals upheld the U.S. Fish and Wildlife Service\u2019s (FWS\u2019s) determination that the Sonoran Desert Area bald eagle was not a distinct population segment (DPS) eligible for listing under the Endangered Species Act. The Ninth Circuit held that the FWS had reasonably concluded that though the unusual characteristics of the desert eagle population segment satisfied the \u201cpersistence\u201d factor for significance, those characteristics did not necessarily require a conclusion that the population segment was ecologically or biologically significant for the bald eagle taxon as a whole. The Ninth Circuit also held that the FWS had reasonably found that extirpation of the desert eagle population segment would not create a significant gap in the range of the taxon. The Ninth Circuit also rejected the argument that the FWS had ignored climate change as a factor for determining the desert eagles\u2019 significance to the taxon, finding that the FWS \u201cdirectly addressed climate change\u201d and concluded that the best information available indicated that climate change was not a significant threat to the bald eagle.\u00a0\u00a0Center for Biological Diversity v. Zinke<\/a><\/em>, No. 14-17513 (9th Cir. Aug. 28, 2017).<\/p>\n

D.C. Circuit Denied Intervenors\u2019 Requests for Rehearing of Decision Vacating Stay of Methane Rule for Oil and Gas Facilities<\/strong><\/p>\n

The D.C. Circuit Court of Appeals denied petitions for rehearing en banc of its decision vacating the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) administrative stay of methane standards for oil and gas sector. The petitions were filed by intervenor-respondents, not by EPA. The order denying rehearing indicated that Judges Henderson, Brown, and Kavanaugh would have granted the petitions.\u00a0Clean Air Council v. Pruitt<\/a><\/em>, No. 17-1145 (D.C. Cir. Aug. 10, 2017).<\/p>\n

D.C. Circuit Vacated EPA Requirement to Replace HFCs<\/strong><\/p>\n

In a split opinion, the D.C. Circuit Court of Appeals ruled that EPA lacked authority to issue a 2015 rule restricting manufacturers from making certain products containing hydrofluorocarbons (HFCs). Because HFCs were greenhouse gases that contribute to climate change, EPA removed certain HFCs from a list of safe substitutes created pursuant to Section 612 of the Clean Air Act, which requires manufacturers to replace ozone-depleting substances with safe substitutes. EPA added the HFCs, which are not ozone-depleting substances, to a list of prohibited substitutes. EPA said Section 612 gave EPA authority to prohibit manufacturers that had replaced ozone-depleting substances with HFCs previously on the safe substitutes list from making products containing the now-prohibited HFCs. The D.C. Circuit found that EPA\u2019s \u201cnovel reading\u201d of Section 612 was \u201cinconsistent with the statute as written\u201d because it stretched the meaning of \u201creplace\u201d beyond its ordinary meaning. The D.C. Circuit said manufacturers \u201creplace\u201d an ozone-depleting substance only once\u2014when they transition to making the same product with a substitute substance. The court said EPA\u2019s reading of \u201creplace,\u201d in which manufacturers continue to \u201creplace\u201d the ozone-depleting substance every time the substitute is used, would render EPA\u2019s authority \u201cboundless\u201d and that such an interpretation \u201cborders on the absurd.\u201d \u00a0The D.C. Circuit did, however, uphold EPA\u2019s decision to remove the HFCs from the list of safe substitutes. The court also said EPA did not \u201csquarely articulate\u201d an alternative \u201cretroactive disapproval\u201d rationale for requiring manufacturers to replace HFCs, and said that EPA would have to justify such an approach on remand if it chose to rely on it. Judge Robert L. Wilkins dissented from the conclusion that Section 612 unambiguously prohibited EPA from requiring replacement of the HFCs. In his view, the statutory provision was ambiguous and EPA\u2019s interpretation of the statutory scheme was reasonable.\u00a0Mexichem Fluor, Inc. v. EPA<\/a><\/em>, No. 15-1328 & 15-1329 (D.C. Cir. Aug. 8, 2017).<\/p>\n

D.C. Circuit Continued to Hold Clean Power Plan and NSPS Cases in Abeyance<\/strong><\/p>\n

On August 8, 2017, the D.C. Circuit ordered\u2014on its own motion\u2014that challenges to the Clean Power Plan continue to be held in abeyance for 60 more days and that EPA continue filing status reports at 30-day intervals. Five days earlier, public health and environmental organizations that had intervened as respondents asked the court to decide the case on the merits or terminate it by remanding the case to EPA. They said EPA\u2019s classification of its Clean Power Plan review as a \u201cLong Term Action\u201d in the Trump administration\u2019s Current Unified Agenda of Regulatory and Deregulatory Actions indicated a proposed rule might be delayed for at least another year. On August 10, the D.C. Circuit ordered\u2014again on its own motion\u2014that the cases challenging the carbon dioxide standards for new, modified, and reconstructed power plants (NSPS) remain held in abeyance pending further order of the court, with status reports to be filed at 90-day intervals.\u00a0West Virginia v. EPA<\/a><\/em>, Nos. 15-1363 et al. (D.C. Cir. Aug. 8, 2017);\u00a0North Dakota v. EPA<\/a><\/em>, Nos. 15-1380 et al. (D.C. Cir. Aug. 10, 2017).<\/p>\n

Virginia Federal Court Dismissed FOIA Lawsuit Seeking State Department Correspondence About Climate Change\u00a0<\/strong><\/p>\n

The federal district court for the Eastern District of Virginia ruled in favor of the U.S. Department of State in a Freedom of Information Act (FOIA) lawsuit brought by two organizations that sought correspondence between five State Department employees and environmental organizations and the employees\u2019 correspondence containing the following terms: global warming, climate change, Paris, UNCCC, UNFCC, Kyoto, and APEC. The court\u2019s decision addressed one plaintiff\u2019s motion for summary judgment challenging redactions in 10 documents produced by the State Department and the State Department\u2019s cross-motion for summary judgment. The plaintiff contended that the 10 documents were a small sample of unjustified redactions and partial withholdings representing improper application of FOIA Exemptions 1 (for classified material), 5 (for predecisional intra- or inter-agency documents), and 6 (for personnel and medical files that would constitute an invasion of privacy). The court found that the State Department had provided sufficient information about documents withheld pursuant to Exemption 1 to demonstrate that they were properly encompassed by the exemption and that the timing of the State Department\u2019s classification of the information as confidential was not automatically invalid based on its timing. The court also rejected challenges to redactions based on Exemption 5. The redacted information in one document related to formulating a response to a foreign official and to internal discussions about possible topics for a future meeting; redacted information in a second document was a draft list of names of \u201cpossible validators of \u2026 climate change work.\u201d A third document redacted discussions of potential State Department engagement with congressional staff. The court also concluded that documents were properly redacted based on Exemption 6 to exclude private and personal conversation between two individuals concerning career matters, the draft climate change \u201cvalidators\u201d list, and a summary of\u00a0 conversations between a private individual and Indian officials. The court also ruled that the second plaintiff could not file an additional motion for summary judgment and that this opinion therefore concluded the case.\u00a0Energy & Environment Legal Institute v. U.S. Department of State<\/a><\/em>, No.\u00a01:15<\/span><\/span>-cv-00423-LO-TCB (E.D. Va. Aug. 28, 2017).<\/p>\n

Nevada Federal Court Rejected Claims of Inadequate Consideration of Climate Change for Water Pipeline<\/strong><\/p>\n

The federal district court for the District of Nevada largely upheld approvals for the first phase of \u201ca massive water-redistribution pipeline\u201d intended to carry millions of gallons of water to Nevada\u2019s most populous county, including by rejecting the plaintiff\u2019s argument that the U.S. Bureau of Land Management (BLM) did not take a hard look at the extent to which climate change might amplify the project\u2019s environmental impacts. The court found that BLM adequately considered climate change impacts by generally considering global climate change and regional climate change trends. The court rejected the plaintiffs\u2019 contention that BLM\u2019s assessment should have included specific climate change data, finding that the plaintiffs had failed to point to any \u201chard data\u201d that BLM should have included in its analysis. The court also agreed with BLM that new climate change studies indicating an increased risk of drought in the Southwest did not warrant preparation of a supplemental EIS. The court concluded that the studies provided \u201cno new, raw data about how climate change might affect the pipeline\u2019s environmental impact\u201d and that BLM had already qualitatively considered the studies\u2019 conclusions in its EIS.\u00a0Center for Biological Diversity v. U.S. Bureau of Land Management<\/a><\/em>, No.\u00a02:14<\/span><\/span>-cv-00226 (D. Nev. Aug. 23, 2017).<\/p>\n

D.C. Federal Court Upheld NOAA\u2019s Withholding of Predecisional Documents Related to \u201cHiatus Study\u201d<\/strong><\/p>\n

The federal district court for the District of Columbia granted summary judgment to the U.S. Department of Commerce in a FOIA lawsuit seeking documents in the possession of the National Oceanographic and Atmospheric Administration (NOAA) related to a study by several NOAA scientists known as the \u201cHiatus Paper.\u201d The Hiatus Paper found that recent ocean surface temperature increases were greater than other studies had indicated, and that there had been no \u201chiatus\u201d in ocean warming as some had argued. The court\u2019s decision concerned three sets of documents withheld by NOAA under FOIA\u2019s Exemption 5 for inter-agency or intra-agency memorandums or letters\u2014drafts of the Hiatus Paper, internal correspondence among NOAA scientists about the Hiatus Paper, and outside peer reviewer comments. The court rejected the plaintiff\u2019s contention that the withheld documents were not within Exemption 5\u2019s scope because they concerned science, not policy. The district court said D.C. Circuit precedent resolved this question in NOAA\u2019s favor. The court also found that the plaintiff had not presented evidence \u201csufficient to raise the specter of such nefarious government misconduct\u201d as would be required to override Exemption 5. (The court also noted that the D.C. Circuit had never held that government misconduct could abrogate Exemption 5.) The district court also found that the Department of Commerce had adequately alleged that it had released all reasonably segregable material and that the plaintiff had provided no evidence to contradict those allegations.\u00a0Judicial Watch, Inc. v. U.S. Department of Commerce<\/a><\/em>, No.\u00a01:15<\/span><\/span>-cv-02088-CRC (D.D.C. Aug. 21, 2017).<\/p>\n

South Carolina Federal Court Ordered Removal of Sea Walls That Interfered with Sea Turtle Nesting<\/strong><\/p>\n

The federal district court for the District of South Carolina granted a motion for a preliminary injunction and ordered that temporary sea walls be removed from beaches in South Carolina and remain removed during the nesting period of sea turtles. The court found that the plaintiffs were likely to succeed on their argument that the sea walls interfered with the nesting activities of endangered sea turtles and that the state authorization of the sea walls constituted a \u201ctake\u201d under the Endangered Species Act. The court also found that the plaintiffs had established irreparable harm; that the balance of the equities tipped in their favor (here, the court said it was skeptical that the sea walls effectively prevented erosion); and that an injunction would be in the public interest. The court also denied a motion to dismiss, finding that dismissal on\u00a0Burford<\/em>\u00a0abstention grounds due to ongoing state administrative proceedings was not justified. The court said that although \u201cprotecting coastal real estate from sea level rise and extreme climate events such as hurricanes is an important state policy,\u201d abstention was not required merely because resolution of the federal question would result in overturning state policy. The court found that the defendants\u2019 attempt to frame the issue as a local matter fell short since protection of endangered species was a matter of national concern.\u00a0Sierra Club v. Von Kolnitz<\/a><\/em>, No.\u00a02:16<\/span><\/span>-cv-03815-DCN (D.S.C. Aug. 14, 2017).<\/p>\n

Federal Court Said Bureau of Reclamation Considered Climate Change-Induced Turbidity in Review of Water Transfer Project<\/strong><\/p>\n

The federal district court for District of Columbia ruled that the Bureau of Reclamation had \u201cfinally done its work\u201d of examining the potential impacts of the Northwest Area Water Supply Project (NAWS), the goal of which was to provide water from Lake Sakakawea in the Missouri River Basin to communities in need of water in North Dakota, which is in the Hudson River Basin. The court rejected an argument by the Province of Manitoba that a supplemental EIS prepared by the Bureau in 2015 did not adequately consider a climate change-induced increase in turbidity in the waters of Lake Sakakawea. The court said this argument arose from a \u201cscientific disagreement as to the nature and impact\u201d of the turbidity in the environment, not from a failure by the Bureau to consider the issue.\u00a0Government of Province of Manitoba v. Zinke<\/a><\/em>, Nos. 02-2057 & 09-373 (D.D.C. Aug. 10, 2017).<\/p>\n

West Virginia Federal Court Remanded Murray Energy Defamation Action to State Court<\/strong><\/p>\n

The federal district court for the Northern District of West Virginia remanded to state court a defamation action brought against John Oliver, the host of\u00a0Last Week\u00a0Tonight<\/span><\/span>\u00a0with John Oliver<\/em>, by the coal company Murray Energy Corporation (Murray Energy); Robert E. Murray, the founder, chairman, president, and chief executive officer of Murray Energy; and affiliated companies of which Mr. Murray was the president, CEO, and sole director (the affiliated companies). The other defendants included Home Box Office, Inc. (HBO), a Delaware corporation, which broadcasts\u00a0Last Week\u00a0Tonight<\/span><\/span><\/em>. The plaintiffs alleged that the defendants were \u201cpersons and organizations fundamentally opposed to any revitalization of the coal industry, having described coal as \u2018environmentally catastrophic.\u2019\u201d The plaintiffs further alleged that in a June 2017 episode of\u00a0Last Week Night\u00a0<\/em>the defendants knowingly broadcast malicious statements that they knew to be false based on information provided by the plaintiffs. The statements that the plaintiffs alleged were defamatory included statements indicating that Mr. Murray had no evidence to support his assertion that an earthquake caused a mine collapse that killed nine people; a statement that Mr. Murray and Murray Energy \u201cappear to be on the same side as black lung\u201d and that their position on a coal dust regulation was the equivalent of rooting for bees to kill a child; and a description of Mr. Murray as looking \u201clike a geriatric Dr. Evil.\u201d The plaintiffs also asserted that the allegedly defamatory statements constituted false light invasion of privacy and that defendants intentionally inflicted emotional distress upon Mr. Murray. After the defendants removed the action to federal court on diversity jurisdiction grounds, the federal court remanded, rejecting the defendants\u2019 argument that the affiliated companies\u2014which, like HBO, are Delaware corporations\u2014had been fraudulently joined to defeat diversity jurisdiction. The court found that defamatory statements made about an executive of a business could be sufficient to defame the business where the statements were made about the executive in his professional capacity and reflected negatively on the operation of the business. The court therefore found that there existed \u201ca glimmer of hope\u201d that the affiliated companies would establish a cause of action and that diversity jurisdiction therefore was destroyed.\u00a0Marshall County Coal Co. v. Oliver<\/a><\/em>, No.\u00a05:17<\/span><\/span>-cv-00099-JPB (N.D. W. Va. Aug. 10, 2017);\u00a0Marshall County Coal Co. v. Oliver<\/a><\/em>, No. 17-C-124 (W. Va. Cir. Ct., filed June 21, 2017).<\/p>\n

FERC Declined to Stay Atlantic Sunrise Pipeline Project; Rehearing Requests Still Pending<\/strong><\/p>\n

FERC denied requests for a stay of its February 3, 2017 order authorizing construction and operation of the Atlantic Sunrise pipeline project. FERC said the parties requesting the stay had not established that they would suffer irreparable harm. FERC noted that it had yet to consider the merits of any requests for rehearing. Parties had argued that flaws in FERC\u2019s review of the pipeline project included failure to address downstream greenhouse gas impacts.\u00a0In re Transcontinental Gas Pipe Line Co.<\/a><\/em>, No. CP15-138 (FERC Aug. 31, 2017).<\/p>\n

New York Denied Water Quality Certificate for Pipeline Project, Citing D.C. Circuit Decision Requiring Consideration of Downstream Greenhouse Gas Emissions<\/strong><\/p>\n

The New York State Department of Environmental Conservation denied an application for a Water Quality Certificate under Section 401 of the Clean Water Act and state permits for a natural gas pipeline project. DEC said FERC\u2019s environmental review of the project was inadequate due to the D.C. Circuit\u2019s decision in\u00a0Sierra Club v. FERC<\/em>, No. __ (D.C. Cir. Aug. 22, 2017), in which the D.C. Circuit found that FERC should have considered the downstream greenhouse gas emissions from combustion of natural gas transported by another pipeline project. NYSDEC said FERC had not conducted such an analysis for New York pipeline project and that the D.C. Circuit\u2019s decision was a material change in applicable law warranting denial of the application. NYSDEC also submitted a motion to FERC for reopening or rehearing and staying the project.\u00a0In re Valley Lateral Project<\/a><\/em>, No. 3-3399-00071\/00001 (NYSDEC notice of decision Aug. 30, 2017).<\/p>\n

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

State of Alaska and Trade Groups Sought Supreme Court Review of Bearded Seal Listing as Threatened Species<\/strong><\/p>\n

Petitioners led by the State of Alaska filed a petition for a writ of certiorari seeking U.S. Supreme Court review of the Ninth Circuit\u2019s decision upholding the listing of the bearded seal as a threatened species under the Endangered Species Act (ESA). Alaska Oil and Gas Association (AOGA) and American Petroleum Institute (API) filed a separate petition. The petitioners identified the question presented as whether a species could be listed as threatened when the government determined that the species \u201cis not presently endangered\u201d but \u201cwill lose its habitat due to climate change by the end of the century.\u201d The State of Alaska petitioners argued that the case isolated a single legal issue of \u201ccritical importance regarding the reach of the ESA\u201d and that the case provided \u201can ideal vehicle\u201d for reviewing the issue because the National Marine Fisheries Service (NMFS) \u201cbased its listing decision entirely on the speculative, long-term effects of climate change on a healthy species,\u201d the listing decision would take \u201ca substantial, immediate toll on the State and its local population,\u201d and the listing lacked positive conservation effects because NMFS \u201cdisclaimed any power to address the threat it purported to identify. The Alaska petitioners argued that NMFS had disregarded the statutory text and structure,\u201d and that the agencies charged with implementing the ESA should not be allowed to \u201cmanhandle\u201d the statute \u201cto fit the square peg of climate change into the round hole of ESA regulation.\u201d The Alaska petitioners said immediate review was necessary because neither the Ninth Circuit nor the D.C. Circuit was \u201clikely to impose any effective limit on the listing of cold-weather species.\u201d\u00a0 In their petition, AOGA and API argued that the Ninth Circuit\u2019s interpretation of the ESA allowing such a listing was incompatible with standards established by the Supreme Court and the D.C. Circuit and contrary to the statute\u2019s plain language. The petitioners said certiorari should be granted to address the \u201cpalpable consequences for both public and private entities\u201d that the Ninth Circuit\u2019s \u201clax standard\u201d would have and that the bearded seal listing presented \u201cthe perfect vehicle to set the Ninth Circuit\u2019s erroneous standard straight\u201d because the National Marine Fisheries Service had \u201cconceded that it has\u00a0no data<\/em>\u00a0to make a concrete inference about how the bearded seal will react to climate change and proceeded to list as threatened a highly abundant species that has shown no population decline despite observed sea ice declines.\u201d The Alaska Federal of Natives, Resource Development Council for Alaska, Alaska Chamber, U.S. Chamber of Commerce, and 18 states filed amicus briefs in support of the petitioners.\u00a0Alaska v. Ross<\/a><\/em>, No. 17-118 (U.S. cert. petition July 21, 2017);\u00a0Alaska Oil & Gas Association v. Ross<\/a><\/em>, No. 17-133 (U.S. cert. petition July 21, 2017).<\/p>\n

Environmental Groups Sought Vacatur of EPA\u2019s Administrative Stay of Landfill Methane Standards<\/strong><\/p>\n

Environmental groups asked the D.C. Circuit Court of Appeals to vacate EPA\u2019s administrative stay of regulations restricting emissions of landfill gas (including methane) from municipal solid waste landfills. The plaintiffs called their case \u201ca carbon copy\u201d of\u00a0Clean Air Council v. Pruitt<\/em>, in which the D.C. Circuit vacated EPA\u2019s administrative stay of regulations restricting emissions from the oil and gas sector. They argued that EPA\u2019s administrative stay suffered from the same flaws as the administrative stay in that case, citing EPA\u2019s failure to articulate any rationale for why reconsideration was mandatory for five of the six issues on which reconsideration was granted and the failure of the rationale for reconsideration of the sixth issue to meet statutory criteria for mandatory reconsideration.\u00a0Natural Resources Defense Council v. Pruitt<\/a><\/em>, No. 17-1157 (D.C. Cir. motion for summary vacatur Aug. 4, 2017).<\/p>\n

Lawsuits Challenged Delisting of Yellowstone Grizzly Bears, Citing Climate Change Threats to Food Sources<\/strong><\/p>\n

Three lawsuits were filed in the federal district court for the District of Montana challenging the FWS decision to designate a Greater Yellowstone Ecosystem grizzly bear distinct population segment (DPS) and FWS\u2019s related determination that the DPS was recovered and did not qualify as endangered or threatened under the Endangered Species Act. In its lawsuit, WildEarth Guardians contended that the FWS\u2019s assessment of threats to the DPS was inadequate due to, among other reasons, its failure to account for climate change impacts on the grizzly bear\u2019s habitat and food sources. The complaint filed by the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity, and National Parks Conservation Association also alleged that the FWS failed to address threats to Yellowstone grizzly bears, including their increasing reliance on a meat-based diet due in part to climate change impacts on food sources. The Humane Society of the United States and the Fund for Animals alleged in their complaint that the FWS had ignored best available science showing that climate change was and would continue to threaten the survival of grizzly bears in the Yellowstone area, including by posing threats to grizzly bears\u2019 food sources and forcing grizzly bears to migrate outside their primary conservation area and to face \u201ccascading threats.\u201d\u00a0Humane Society of the United States v. U.S. Fish & Wildlife Service<\/a><\/em>, No.\u00a09:17<\/span><\/span>-cv-00117-DLC (D. Mont., filed Aug. 29, 2017);\u00a0WildEarth Guardians v. Zinke<\/a><\/em>, No.\u00a09:17<\/span><\/span>-cv-00118-DLC (D. Mont., filed Aug. 30, 2017);\u00a0Northern Cheyenne Tribe v. Zinke<\/a><\/em>, No.\u00a09:17<\/span><\/span>-cv-00119-DLC (D. Mont., filed Aug. 30, 2017).<\/p>\n

Conservation Law Foundation Filed Lawsuit Alleging Shell Violated Clean Water Act by Failing to Prepare Providence Fuel Terminal for Climate Change<\/strong><\/p>\n

Conservation Law Foundation (CLF) filed a citizen suit against Shell Oil entities (Shell) alleging that they had failed to comply with the Clean Water Act and a Rhode Island Pollutant Discharge Elimination System permit at their bulk storage and fuel terminal in Providence, Rhode Island (Providence Terminal). CLF alleged that the Providence Terminal was \u201cat risk from coastal flooding caused by sea level rise, increased and\/or more intense precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges\u2014all of which will become, and are becoming, worse as a result of climate change.\u201d CLF also alleged that the terminal\u2019s location, elevation, and lack of preventative infrastructure made it \u201cespecially vulnerable to these risks\u201d and that Shell Oil had not taken action to address these vulnerabilities at Providence Terminal, despite having \u201clong been well aware\u201d of climate change\u2019s impacts and risks and having incorporated such risks in \u201congoing company investments,\u201d including projects off the coast of Nova Scotia and in the North Sea. CLF asserted that Shell\u2019s \u201cknowing disregard of the imminent risks\u201d of climate change and failure to fortify the Providence Terminal against such risks constituted violations of the Clean Water Act. CLF identified 19 separate causes of action for violation of the Clean Water Act and sought civil penalties, environmental restoration and compensatory mitigation to address past violations, and declaratory and injunctive relief to prevent future violations.\u00a0Conservation Law Foundation, Inc. v. Shell Oil Products US<\/a><\/em>, No.\u00a01:17<\/span><\/span>-cv-00396 (D.R.I. Aug. 28, 2017).<\/p>\n

Peabody Energy Sought Dismissal of California County and City Lawsuits Against Fossil Fuel Companies; Defendants Removed Cases to Federal Court\u00a0<\/strong><\/p>\n

On August 28, 2017<\/span><\/span>, Peabody Energy Corporation (Peabody) asked the U.S. Bankruptcy Court for the Eastern District of Missouri to order San Mateo County, Marin County, and the City of Imperial Beach to dismiss complaints against Peabody filed in California Superior Court in July 2017. The Counties and City\u2019s complaints sought relief from a number of fossil fuel companies, including Peabody, for alleged damage arising from climate change. Peabody\u2014which emerged from bankruptcy in April 2017\u2014argued that the complaints sought to \u201cobliterate\u201d Peabody\u2019s \u201cfresh start\u201d by seeking damages and equitable relief based upon pre-bankruptcy petition conduct. Peabody asserted that the Counties and City\u2019s claims were therefore discharged and enjoined pursuant to Peabody\u2019s reorganization plan and the bankruptcy court\u2019s confirmation order.\u00a0In re Peabody Energy Corp.<\/a><\/em>, No. 16-42529-399 (Bankr. E.D. Mo. Aug. 28, 2017).<\/p>\n

Earlier in August, defendants Chevron Corporation and Chevron U.S.A., Inc. (together, Chevron) removed all three of the actions to the federal district court for the Northern District of California. Chevron said all other defendants joined in or had consented to the notice of removal. Chevron also said the defendants would be moving \u201cat the appropriate time\u201d to dismiss the plaintiffs\u2019 claims. Chevron asserted that though the complaint nominally asserted state law claims, it should be heard in a federal forum because there was federal question jurisdiction. Citing the Ninth Circuit\u2019s opinion in\u00a0Native Village of Kivalina v. ExxonMobil Corp.<\/em>, Chevron argued that \u201c[r]eflecting the uniquely federal interests posed by greenhouse gas claims like these,\u201d the Ninth Circuit had recognized \u201cthat causes of action of the types asserted here are governed by federal common law, not state law.\u201d Chevron also said removal was also authorized because the action \u201cnecessarily raises disputed and substantial federal questions that a federal forum may entertain without disturbing a congressionally approved balance of responsibilities between the federal and state judiciaries\u201d; because the Clean Air Act and other federal statutes and the U.S. Constitution completely preempted the plaintiffs\u2019 claims; because the action arose under the Outer Continental Shelf Lands Act (OCSLA); because a causal nexus existed between the alleged actions taken by the defendants pursuant to a federal officer\u2019s directions and the plaintiffs\u2019 claims and because the defendants could assert colorable federal defenses; because the claims were based on alleged injuries to or conduct on federal enclaves; and because the state law claims were related to bankruptcy cases.\u00a0County of Marin v. Chevron Corp.<\/a><\/em>, No.\u00a03:17<\/span><\/span>-cv-04935 (N.D. Cal. Aug. 24, 2017);\u00a0City of Imperial Beach v. Chevron Corp.<\/a><\/em>, No.\u00a04:17<\/span><\/span>-cv-04934 (N.D. Cal. Aug. 24, 2017);\u00a0County of San Mateo v. Chevron Corp.<\/a><\/em>, No.\u00a03:17<\/span><\/span>-cv-04929 (N.D. Cal. Aug. 24, 2017).<\/p>\n

Dakota Access Pipeline Developers Filed RICO Action Against Environmental Groups<\/strong><\/p>\n

Two companies that led development of the Dakota Access Pipeline filed an action under the Racketeer Influenced and Corrupt Organizations Act (RICO) against Greenpeace International and other environmental activist groups. The companies\u2014Energy Transfer Equity, L.P. and Energy Transfer Partners, L.P. (together, Energy Transfer)\u2014alleged that they were the latest business to be targeted by \u201ca network of putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims.\u201d Energy Transfer asserted that the defendants and other parties had \u201cmanufactured\u201d a crisis and engaged in an illegal campaign against the Dakota Access Pipeline, and had worked together to carry out racketeering activity, that included supporting acts of terrorism; defrauding donors, supporters, and state and federal treasuries; engaging in tax fraud and interstate drug trafficking; and transporting and transmitting misappropriated funds and property through interstate commerce. The complaint alleged numerous misrepresentations regarding the pipeline project, citing the campaign\u2019s charges that the project was a \u201cclimate destroying project\u201d that would ensure \u201cguaranteed destruction of the planet,\u201d which the complaint called \u201ca sensational lie.\u201d The complaint asserted that the enterprise had exploited \u201clegitimate concerns about mitigating climate change to dupe the public into supporting a campaign that does the opposite\u201d and that the exploitation \u201clays bare that [the enterprise] is motivated entirely by money, not its proclaimed concerns about environmental impacts.\u201d Energy Transfer alleged that the \u201cscheme\u2019s dissemination of negative misinformation devastated the market reputation of Energy Transfer as well as the business relationships vital to its operations and growth.\u201d In addition to racketeering and conspiracy counts under RICO, Energy Transfer also asserted claims of state law racketeering, defamation, tortious interference with business, and common law civil conspiracy.\u00a0Energy Transfer Equity, L.P. v. Greenpeace International<\/a><\/em>, No.\u00a01:17<\/span><\/span>-cv-00173-CSM (D.N.D., filed Aug. 22, 2017).<\/p>\n

Sierra Club Filed FOIA Lawsuit Seeking Communications Regarding Department of Energy Grid Study<\/strong><\/p>\n

Sierra Club filed a lawsuit asking the federal district court for the Northern District of California to order the U.S. Department of Energy to produce documents requested under FOIA regarding DOE\u2019s study of U.S. electricity markets and the reliability of the electrical grid. Sierra Club alleged that it appeared that DOE had \u201cintended from the outset to release a biased study containing pre-determined conclusions that \u2018baseload\u2019 plants utilizing fossil fuels are necessary for the reliability and resiliency of the grid, and that existing policies to encourage adoption of clean energy sources must be scaled back.\u201d Sierra Club had submitted a FOIA request to DOE on May 1, 2017 requesting communications between DOE officials and outside parties such as trade groups, representatives of the electricity utility or generation industries, FERC, regional transmission organizations, and independent system operators.\u00a0Sierra Club v. U.S. Department of Energy<\/a><\/em>, No.\u00a03:17<\/span><\/span>-cv-04663 (N.D. Cal., filed Aug. 14, 2017).<\/p>\n

California Sought Records on EPA Procedures for Avoiding Appearance of Lack of Impartiality in Pruitt\u2019s Involvement in Rulemaking Processes<\/strong><\/p>\n

The State of California filed a lawsuit in the federal district court for the District of Columbia alleging that EPA had not complied with FOIA in response to California\u2019s request for records concerning EPA\u2019s process to ensure that Administrator E. Scott Pruitt was in compliance with federal ethics regulations and obligations and EPA\u2019s policies and procedures for determining who would assume the Administrator\u2019s powers if Pruitt was recused or disqualified from participating in a matter. California said that as EPA Administrator, Pruitt became responsible for implementing regulations he had worked to overturn as Oklahoma Attorney General \u201cjust moments earlier,\u201d including rules limiting greenhouse gas emissions from power plants and the oil and gas sector. California asserted that Pruitt\u2019s \u201cpublic attacks on the legal and factual justification EPA provided for many rules \u2026 raise a question regarding his ability to participate in administrative processes and rulemakings concerning these same rules with the impartiality required by federal law.\u201d\u00a0California v. EPA<\/a><\/em>, No.\u00a01:17<\/span><\/span>-cv-01626 (D.D.C., filed Aug. 11, 2017<\/span><\/span>).<\/p>\n

Lawsuit Alleged That Renewal of Permit for Shellfish Aquaculture Did Not Consider Climate Impacts on Washington State Waters<\/strong><\/p>\n

Center for Food Safety (CFS)\u2014a nonprofit organization \u201cwhose mission is to empower people, support farmers, and protect the earth from the adverse impacts of industrial food production\u201d\u2014filed an action challenging the U.S. Army Corps of Engineers\u2019 renewal of a nationwide permit to cover shellfish aquaculture in Washington State. CFS\u2019s complaint, filed in the federal district court for the Western District of Washington, asserted that the Corps failed to comply with the Clean Water Act and NEPA. CFS alleged, among other things, that the supplemental environmental assessment prepared by the Corps did not fully assess the incremental impact of expanding the area of commercial shellfish aquaculture in combination with existing impacts from other human activities, including climate change.\u00a0Center for Food Safety v. U.S. Army Corps of Engineers<\/a><\/em>, No.\u00a02:17<\/span><\/span>-cv-01209 (W.D. Wash., filed Aug. 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. HERE ARE THE ADDITIONS TO […]<\/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":[5677,5680,9462,8451,8460,9471,5676,9479,9473],"tags":[],"class_list":{"0":"post-5138","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-clean-air-act","7":"category-clean-energy","8":"category-clean-power-plan","9":"category-endangered-species","10":"category-epa","11":"category-natural-resources","12":"category-nepa","13":"category-online-resources","14":"category-pipelines","15":"czr-hentry"},"yoast_head":"\nSeptember 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\/09\/07\/september-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=\"September 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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