{"id":5773,"date":"2018-07-02T10:57:04","date_gmt":"2018-07-02T15:57:04","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5773"},"modified":"2018-07-02T10:57:04","modified_gmt":"2018-07-02T15:57:04","slug":"july-2018-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2018\/07\/02\/july-2018-updates-to-the-climate-case-charts\/","title":{"rendered":"July 2018 Updates to the Climate Case Charts"},"content":{"rendered":"
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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@gmail.com.<\/p>\n

HERE ARE THE ADDITIONS TO THE\u00a0CLIMATE CASE CHART<\/a>\u00a0SINCE UPDATE # 111.<\/strong><\/p>\n

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

California Federal Court Dismissed Oakland and San Francisco\u2019s Climate Change Nuisance Lawsuits<\/strong><\/p>\n

On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court\u2014which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law\u2014rejected the cities\u2019 attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in\u00a0American Electric Power Co. v. Connecticut<\/em>\u00a0(AEP<\/em>)) and Ninth Circuit (in\u00a0Native Village of Kivalina v. ExxonMobil Corp.<\/em>\u00a0(Kivalina<\/em>)). The district court held that\u00a0AEP\u00a0<\/em>and\u00a0Kivalina<\/em>\u2019s displacement rule would apply to the cities\u2019 claims even though the claims were based not on the defendants\u2019 own greenhouse gas emissions but on their\u00a0 sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: \u201cIf an oil producer cannot be sued under the federal common law for their own emissions,\u00a0a fortiori<\/em>\u00a0they cannot be sued for someone else\u2019s.\u201d The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in\u00a0AEP<\/em>and\u00a0Kivalina<\/em>\u2014that the defendants\u2019 actions and the resulting emissions occurred outside the U.S.\u2014placed the cities\u2019 claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs\u2019 claims, such nuisance claims were \u201cforeclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.\u201d The court stated: \u201cThis order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.\u201d \u00a0In short, the court stated, \u201c[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.\u201d<\/p>\n

The district court issued its order dismissing the cases after three of the defendants and the plaintiffs reached agreements to avoid the jurisdictional discovery ordered by the court in May. After dismissing the cases, the court issued a request that the parties submit a joint statement regarding whether it was still necessary to address the recently narrowed personal jurisdiction motions to dismiss. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders.\u00a0City of Oakland v. BP p.l.c.<\/em><\/a>, No.\u00a03:17<\/span><\/span>-cv-06011 (N.D. Cal. June 25, 2018).<\/p>\n


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

D.C. Circuit Said NEPA Did Not Require Updated Review of Coal Leasing Program<\/strong><\/p>\n

The D.C. Circuit Court of Appeals affirmed dismissal of a lawsuit seeking to compel an update of the programmatic environmental impact statement (PEIS) for the federal coal leasing program. The U.S. Bureau of Land Management (BLM) completed the PEIS in 1979; plaintiffs argued that BLM was required to update the environmental review due to the availability of tens of thousands of scientific studies on climate change and coal combustion\u2019s contributions to climate change. The D.C. Circuit held that the National Environmental Policy Act (NEPA) did not require BLM to update the environmental review because the relevant \u201cmajor Federal action\u201d (establishment of the federal coal program) was completed in 1979 and no new action had been proposed. The D.C. Circuit said the plaintiffs raised \u201ca compelling argument\u201d that BLM \u201cshould now revisit the issue\u201d of climate change and \u201cadopt a new program or supplement its PEIS analysis,\u201d but concluded that the plaintiffs would have to pursue other avenues to raise this claim\u2014either via a rulemaking petition or through challenges to specific licensing decisions (which \u201cmight challenge any attempt by BLM to rely on (or tier to) the 1979 PEIS on the ground that it is too outdated to support new federal action\u201d). The D.C. Circuit also rejected the plaintiffs\u2019 contention that statements in the 1979 regulatory materials created an obligation for BLM to update the PEIS even if NEPA did not require it. The D.C. Circuit said that while the statements \u201cmight have created a binding duty \u2026 at one point,\u201d BLM\u2019s amendments to the coal leasing rules in 1982 freed it from any supplementation duty beyond that imposed by NEPA.\u00a0Western Organization of Resource Councils v. Zinke<\/em><\/a>, No. 15-5294 (D.C. Cir. June 19, 2018).<\/p>\n

Second Circuit Issued Opinion with Rationale for Vacating Rule That Delayed Penalty Increases for Violations of CAFE Standards<\/strong><\/p>\n

The Second Circuit Court of Appeals issued an opinion explaining the rationale for its April 2018 order vacating a National Highway Traffic Safety Administration (NHTSA) rule that indefinitely delayed a previously published rule that increased civil penalties for noncompliance with Corporate Average Fuel Economy (CAFE) standards. The court found that the Federal\u00a0Civil\u00a0Penalties\u00a0Inflation\u00a0Adjustment\u00a0Act\u00a0Improvement\u00a0Act\u00a0of\u00a02015 did not give NHTSA authority to indefinitely delay adjustments to civil penalties and that NHTSA did not otherwise have authority to suspend the penalty increase rule. The Second Circuit also held that NHTSA violated the Administrative Procedure Act by failing to follow notice-and-comment rulemaking procedures when it adopted the delay rule. As a threshold matter, the Second Circuit also concluded that both the state petitioners and the environmental petitioners had standing. The Second Circuit also rejected the argument that the proceedings were untimely, finding that under the applicable Energy Policy and Conservation Act judicial review provision, the time for filing petitions for review was triggered by publication in the\u00a0Federal Register<\/em>, not by NHTSA\u2019s delivery of the agency action to the Office of the Federal Register.\u00a0Natural Resources Defense Council v. National Highway Traffic Safety Administration<\/a><\/em>, Nos. 17-2780, 17-2806 (2d Cir. June 29, 2018).<\/p>\n

D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay<\/strong><\/p>\n

On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had \u201chijacked\u201d the court\u2019s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, \u201cthen they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court\u2019s authority under the guise of preserving jurisdiction over moribund petitions.\u201d Judge Tatel, also joined by Judge Millett, wrote that \u201cthe untenable status quo derives in large part from petitioners\u2019 and EPA\u2019s treatment of the Supreme Court\u2019s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners\u2019 legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.\u201d Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the \u201ccircumstances as they stand today\u201d so that the Court may \u201cdecide for itself whether the temporary stay it granted pending\u00a0judicial<\/em>\u00a0assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending\u00a0agency<\/em>\u00a0action.\u201d\u00a0West Virginia v. EPA<\/a><\/em>, Nos. 15-1363 et al. (D.C. Cir. June 26, 2018).<\/p>\n

New Mexico Federal Court Ordered Analysis of Downstream Greenhouse Gas Emissions of Oil and Gas Leases<\/strong><\/p>\n

The federal district court for the District of New Mexico held that BLM failed to take a hard look at the greenhouse gas emissions and climate impacts of leases issued in 2015 for 13 parcels of federal mineral estate in the Santa Fe National Forest covering almost 20,000 acres. The court set aside the leases and remanded for additional review. The court rejected BLM\u2019s argument that it was not required to consider downstream greenhouse gas emissions that would result from combustion of oil and gas produced from development of wells on the leased areas and the downstream emissions\u2019 impact on climate change. The court said such impacts were required to be assessed as indirect impacts of the leases. In addition, the court said BLM must conduct a new cumulative impact analysis of greenhouse gas emissions due to the failure to consider downstream greenhouse gas emissions. The court also noted that the Intergovernmental Panel on Climate Change had updated its reports since BLM conducted its review as had the U.S. Global Change Research Program. The court said that on remand BLM should not rely on outdated scientific tools and analyses. Although the court was not persuaded by the plaintiffs\u2019 attacks on BLM\u2019s mitigation measure analysis, the court indicated that BLM might need to conduct a new mitigation analysis once it had calculated downstream greenhouse gas emissions and analyzed their impact. The court also found that BLM did not adequately address impacts of water use.\u00a0San Juan Citizens Alliance v. U.S. Bureau of Land Management<\/a><\/em>, No.\u00a01:16<\/span><\/span>-cv-00376 (D.N.M. June 14, 2018).<\/p>\n

District Court Judge Affirmed Denial of Discovery Stay in\u00a0Juliana<\/em>\u00a0Case; Dispositive Motions Pending<\/strong><\/p>\n

On June 29, 2018, Judge Aiken of the federal district court for the District of Oregon affirmed a magistrate judge\u2019s denial of the federal government\u2019s motion for a protective order and stay of all discovery in the young people\u2019s lawsuit asserting violations of constitutional rights to a climate system capable of sustaining human life. Earlier in June, Judge Aiken denied the federal government\u2019s motion to stay discovery pending the resolution of their objections. In this earlier order, the judge said the defendants had not clearly explained what irreparable harm they would suffer in the absence of a stay and also found that irreparable harm was not likely under the circumstances. The court also said the defendants\u2019 concerns regarding the balance of hardships should be addressed with \u201cspecific objections to specific discovery requests, rather than by a blanket stay of all discovery.\u201d<\/p>\n

Several motions are pending before the court: the defendants\u2019 motion for judgment on the pleadings (oral argument scheduled for\u00a0July 18<\/span><\/span>); the defendants\u2019 motion for summary judgment (briefing to be completed by\u00a0July 12<\/span><\/span>); and the plaintiffs\u2019 motion to defer consideration of the defendants\u2019 motion for summary judgment until after the conclusion of discovery and in conjunction with trial (defendants\u2019 opposition submitted on June 22). A narrower motion for a protective order also is still pending, but on June 27, the magistrate judge granted the plaintiffs\u2019 unopposed motion to hold this motion in abeyance. The plaintiffs said an abeyance would permit the court to decide whether plaintiffs could seek judicial notice of documents requested in their Requests for Admission since those documents were largely public government records. The plaintiffs also indicated that the parties were working to reach agreement on substituting contention interrogatories for depositions. A status conference before the magistrate judge is scheduled for\u00a0July 17<\/span><\/span>, the day before the hearing on the motion for judgment on the pleadings.<\/p>\n

On June 28, the plaintiffs filed their opposition to the motion for summary judgment. They supported their opposition with declarations by the 21 plaintiffs and by 18 experts, as well as with \u201chundreds of government records.\u201d The plaintiffs also officially requested judicial notice of a number of government documents via a motion in limine. In their response opposing summary judgment, the plaintiffs said they had submitted sufficient evidence to establish Article III standing on summary judgment. They also countered the federal government\u2019s argument that the Administrative Procedure Act provided the sole mechanism for review of their claims. In addition, the plaintiffs argued that their claims did not violate separation of powers principles. Finally, they argued that their claims did not fail as a matter of law\u2014they pointed to evidence of material facts that the federal government disputed regarding the plaintiffs\u2019 right to a climate system capable of sustaining human life; demonstrating the federal government put them in a position of danger in violation of the Fifth Amendment; and addressing their claim that the public trust doctrine applies to the federal government\u2019s management of trust resources. The plaintiffs also contended that three of their Fifth Amendment claims were not at issue in the defendants\u2019 motion: a substantive due process claim for government infringement of enumerated rights of life and property and already recognized implied rights such as rights to move freely, to family, and to personal security; a substantive due process and equal protection claim for systemic government discrimination with respect to plaintiffs\u2019 exercise of their fundamental rights; and a substantive due process equal protection claim for government discrimination against plaintiffs as a class of children.<\/p>\n

Other developments in the case include the U.S. solicitor general\u2019s request for another extension of time within which it may file a petition for writ of certiorari for review of the Ninth Circuit\u2019s denial of the U.S.\u2019s petition for a writ of mandamus ordering dismissal of the case. The U.S. sought to extend the filing deadline from\u00a0July 5 to August 6<\/span><\/span>.\u00a0Justice Kennedy granted an extension to August 4.\u00a0Juliana v. United States<\/em><\/a>, No.\u00a06:15<\/span><\/span>-cv-1517 (D. Or.).<\/p>\n

Man Sentenced for Misuse of Funds Intended for Carbon Sequestration Study<\/strong><\/p>\n

The president and owner of a company that received federal funding for a carbon sequestration study was sentenced to 18 months in prison after he pleaded guilty to using the funds for personal use. He will also be on supervised release for three years after his release from prison and must pay a $50,000 fine and more than $2 million in restitution.\u00a0United States v. Ruffatto<\/a><\/em>, No.\u00a02:16<\/span><\/span>-cr-00167 (W.D. Pa. June 28, 2018).<\/p>\n

Colorado Supreme Court Revived Challenge to Boulder Light and Power Utility<\/strong><\/p>\n

The Colorado Supreme Court ruled that the Public Service Company of Colorado\u2019s (Xcel\u2019s) lawsuit challenging a City of Boulder ordinance establishing a light and power utility was timely and viable. Xcel asserted that the ordinance violated the City Charter, which sets forth \u201cmetrics\u201d that must be met for the City to have the authority to establish a utility. The Supreme Court did not weigh in on the merits of the case but directed that the case be returned to the district court for further proceedings on Xcel\u2019s claim that the City did not satisfy the required metrics, which included a requirement of demonstrating that the utility could create a plan for reduced greenhouse gas emissions and other pollutants and increased renewable energy.\u00a0City of Boulder v. Public Service Co. of Colorado<\/a><\/em>, No. 16SC894 (Colo. June 18, 2018).<\/p>\n

Delaware Court Dismissed Challenge to RGGI Regulations<\/strong><\/p>\n

A Delaware trial court dismissed an action challenging Delaware regulations implementing the Regional Greenhouse Gas Initiative and its carbon dioxide emissions trading program. The court ruled that the plaintiffs\u2014individuals who alleged that the increased costs of carbon dioxide allowances would be reflected in their electricity bills\u2014did not have standing because they had failed to establish any financial harm or that success in the lawsuit would result in lowering their electricity prices. The court stated: \u201cInstead of seeking to correct an actual harm, plaintiffs are officiously meddling with Delaware\u2019s RGGI Act.\u201d\u00a0Stevenson v. Delaware Department of Natural Resources & Environmental Control<\/a><\/em>, No. S13C-12-025 RFS (Del. Super. Ct. June 26, 2018).<\/p>\n

FERC Denied Rehearing of Natural Gas Pipeline Approval and Reasserted Limits on Consideration of Climate Impacts\u00a0<\/strong><\/p>\n

A divided Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction and operation of the Mountain Valley Pipeline Project in West Virginia and Virginia and a related project that would connect to Pennsylvania. Among the arguments rejected by the majority of FERC commissioners were that FERC should have evaluated whether energy demands could be met with \u201cnon-transportation alternatives\u201d such as energy conservation or renewable energy resources, that FERC failed to adequately analyze the climate change impacts of the end use of natural gas transported by the project, and that FERC\u2019s consideration of climate change in the context of evaluating the public interest under Section 7 of the Natural Gas Act (NGA) was inadequate. The FERC majority said greenhouse gas emissions from the downstream use of natural gas did not fall within the definition of indirect impacts or cumulative impacts, and also concluded that the Social Cost of Carbon tool could not meaningfully inform decisions on natural gas transportation infrastructure projects under the NGA. FERC said it continued to believe the Social Cost of Carbon tool was \u201cmore appropriately used by regulators whose responsibilities are tied more directly to fossil fuel production or consumption.\u201d Two commissioners wrote dissents, both of which were critical of FERC\u2019s decisions to restrict its consideration of projects\u2019 impacts on climate change.\u00a0In re Mountain Valley Pipeline, LLC<\/a><\/em>, No. CP 16-10-001 (FERC June 15, 2018).<\/p>\n

California Public Utilities Commission Denied Application for New Gas Pipeline for Failure to Demonstrate Need<\/strong><\/p>\n

On June 26, 2018, the California Public Utilities Commission issued its final decision denying a certificate of public convenience and necessity for a new 47-mile natural gas pipeline to replace an existing pipeline. The proposed decision found that the applicants had failed to demonstrate a need for the project and had not shown \u201cwhy it is necessary to build a very costly pipeline to substantially increase gas pipeline capacity in an era of declining demand and at a time when the state of California is moving away from fossil fuels.\u201d The decision indicated that based on Commission precedent, the Commission could deny a proposed gas pipeline or transmission project based on insufficient need without completed CEQA analysis. The Commission directed that the preparation of a draft environmental impact report be halted.\u00a0In re San Diego Gas & Electric Co.<\/a><\/em>, No. A1509013 (Cal. PUC June 26, 2018).<\/p>\n

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

NRDC and Chemical Manufacturers Sought Supreme Court Review of Decision That Struck Down HFC Replacement Rule<\/strong><\/p>\n

Two petitions for writ of certiorari were filed in the Supreme Court seeking review of the D.C. Circuit decision striking down key components of the U.S. Environmental Protection Agency (EPA) final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) as replacements for ozone-depleting substances due to the HFCs\u2019 high global warming potential. Both petitions were filed by parties that had intervened to defend the rule in the D.C. Circuit. One petition\u2014filed by two chemical manufacturers that said they and their suppliers had invested more than $1 billion in creating and commercializing safer replacements for ozone-depleting substances\u2014presented the question of whether EPA lacked authority under Section 612 of the Clean Air Act, which created the \u201csafe alternatives policy,\u201d to prohibit use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative \u201cjust because a company has already begun using the less-safe substitute.\u201d The companies argued that the D.C. Circuit\u2019s interpretation was incorrect and that the decision \u201ceviscerated\u201d an \u201cimmensely consequential\u201d and \u201cextremely effective\u201d federal program, upended the investment-backed expectations of companies such as the petitioners, and harmed the environment. The second petition was filed by Natural Resources Defense Council (NRDC). NRDC\u2019s petition presented the question of \u201c[w]hether EPA has authority under Section 612 to prohibit use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before EPA placed them on the prohibited list.\u201d NRDC also argued that the D.C. Circuit majority\u2019s interpretation was at odds with the statute and destroyed a \u201ccore Clean Air Act program.\u201d\u00a0Honeywell International Inc. v. Mexichem Fluor, Inc.<\/a><\/em>, No. 17-1703 (U.S. June 25, 2018);\u00a0Natural Resources Defense Council v. Mexichem Fluor, Inc.<\/a><\/em>, No. 18-2 (U.S. June 25, 2018).<\/p>\n

States and NRDC Filed Lawsuits Challenging EPA Decision to Suspend Enforcement of HFC Restrictions<\/strong><\/p>\n

NRDC, 11 states, and the District of Columbia filed petitions in the D.C. Circuit Court of Appeals for review of EPA\u2019s decision to suspend the 2015 final rule prohibiting or restricting certain uses of HFCs under the Clean Air Act\u2019s safe alternatives policy. EPA published notice in the April 27, 2018 issue of the\u00a0Federal Register<\/em>\u00a0that it would not apply the final rule\u2019s listings of HFCs as \u201cunacceptable\u201d or as \u201cacceptable subject to narrowed use limits\u201d until it completed a rulemaking addressing the D.C. Circuit\u2019s opinion vacating the portion of the final rule that required manufacturers to replace HFCs with substitutes.\u00a0Natural Resources Defense Council v. Pruitt<\/a><\/em>, No. 18-1172 (D.C. Cir., filed June 26, 2018);\u00a0New York v. Pruitt<\/a><\/em>, No. 18-1174 (D.C. Cir., filed June 26, 2018).<\/p>\n

Second Circuit Granted Exxon\u2019s Request to Slow Down Appeal of Dismissal of Action Against New York and Massachusetts Attorneys General<\/strong><\/p>\n

On May 31, 2018, a Second Circuit Court of Appeals motions panel granted Exxon Mobil Corporation\u2019s (Exxon\u2019s) motion to move Exxon\u2019s appeal of the dismissal of its challenge to the Massachusetts and New York attorneys general climate change investigations from the expedited calendar to the regular calendar. Exxon\u2019s opening brief is due on\u00a0August 3<\/span><\/span>. Exxon argued that the appeal did not meet the Second Circuit\u2019s requirements for expedited treatment because it had been dismissed in part on res judicata grounds based on a Massachusetts state court decision declining to set aside the attorney general\u2019s civil investigative demand. Exxon said the res judicata ruling was not for failure to state a claim and that the res judicata ruling\u2019s complexity and novelty made it unsuitable for expedited review, as did the appeal\u2019s raising of \u201cnovel issues with far-reaching consequences for the First Amendment\u2019s protection against viewpoint discrimination.\u201d Both attorneys general opposed removing the appeal from the expedited calendar. The New York attorney general said removing the appeal from the expedited calendar would \u201charm the public interest by prolonging the pendency of this meritless and disruptive lawsuit\u201d and noted that failure to state a claim was the sole basis for dismissal of claims against the New York attorney general. The Massachusetts attorney general argued that there was \u201cnothing particularly complex or novel\u201d about the district court\u2019s opinion, that it was a \u201cparadigmatic case\u201d for inclusion on the expedited docket, and that expedited appeal would serve the public interest by preserving the attorney general\u2019s ability to conduct her investigation without further delay.\u00a0Exxon Mobil Corp. v. Healey<\/a><\/em>, No. 18-1170 (2d Cir.).<\/p>\n

California Municipalities Sought to Shut Down Fossil Fuel Companies\u2019 Appeal of Order Remanding Climate Cases to State Court<\/strong><\/p>\n

On June 6, 2018, San Mateo and Marin Counties and the City of Imperial Beach moved for partial dismissal of fossil fuel companies\u2019 appeal of a district court order remanding to state court the municipalities\u2019 lawsuits seeking to hold the companies\u2019 liable for climate change damages. The municipalities argued to the Ninth Circuit that the general bar on appellate review of orders remanding cases to state court applied to six of the seven grounds for removal that the companies\u2019 asserted. The municipalities contended that the Ninth Circuit therefore should only review the district court\u2019s rejection of the seventh ground for removal, which was based on the federal officer removal statute. The fossil fuel companies argued that precedent on the scope of appellate review of remand orders was unclear and that the entire remand order was reviewable. The companies said removal under the federal officer removal statute was a \u201cnecessary predicate\u201d for appellate review, but that once that predicate was satisfied, the court of appeals could review the entire order. They characterized the plaintiffs\u2019 motion for partial dismissal as an attempt to prevent the merits panel from reaching the question of whether public nuisance claims based on alleged global warming effects necessarily arise under federal common law\u2014a question on which two judges in the Northern District of California reached opposite answers.\u00a0County of San Mateo v. Chevron Corp.<\/em><\/a>, Nos. 18-15499, 18-15502, 18-15503 (9th Cir.).<\/p>\n

Appeals Filed After Federal Court Nullified Oakland Ordinance Barring Coal Operations at Shipping Terminal<\/strong><\/p>\n

The City of Oakland and two environmental groups appealed a federal district court\u2019s nullification of an Oakland ordinance prohibiting coal operations at a shipping terminal developed at an old army base. The court ruled that the ordinance violated the terms of the City\u2019s agreement with the developer of the terminal.\u00a0Oakland Bulk & Oversized Terminal, LLC v. City of Oakland<\/a><\/em>, No.\u00a03:16<\/span><\/span>-cv-07014 (N.D. Cal. June 13 and 19, 2018).<\/p>\n

In Challenges to Repeal of BLM Hydraulic Fracturing Rule, Parties Keep Court Apprised of Recent Court Decisions<\/strong><\/p>\n

In the federal lawsuits in the Northern District of California challenging BLM\u2019s repeal of the regulations governing hydraulic fracturing on federal and tribal lands, the federal defendants and California (one of the plaintiffs) each filed a notice to inform the court of recent relevant decisions in other courts. On June 4, 2018, the federal defendants notified the court of the Tenth Circuit\u2019s denial of motions to dismiss as moot the appeals of the District of Wyoming\u2019s 2015 decision invalidating the hydraulic fracturing rule. In September 2017, the Tenth Circuit found that the appeals were prudentially unripe because BLM was in the process of rescinding the rule. The Tenth Circuit therefore dismissed the appeals and also directed that the District of Wyoming\u2019s 2015 decision be vacated. After BLM finalized the regulations\u2019 repeal in December 2017 and before the Tenth Circuit\u2019s mandate issued, North Dakota and the Ute Indian Tribe moved to have the appeals dismissed as moot to revive the District of Wyoming\u2019s decision. On June 4, the Tenth Court denied those motions. On June 18, California notified the district court in the Northern District of California of two district court decisions\u2014one in New York and the other in South Carolina\u2014denying motions to transfer challenges to the Waters of the United States rule to other venues. The federal defendants in the challenge to the hydraulic fracturing rule moved in March 2018 to transfer the challenges to the District of Wyoming.\u00a0California v. U.S. Bureau of Land Management<\/em><\/a>, No.\u00a04:18<\/span><\/span>-cv-00521 (N.D. Cal. June 19, 2018).<\/p>\n

New York Attorney General Asked State Court to Order Exxon to Turn Over Documents Showing How Company Accounted for Climate Change<\/strong><\/p>\n

The New York attorney general filed a motion to compel Exxon Mobil Corporation (Exxon) to produce certain documents in response to subpoenas issued by the attorney general in the investigation of Exxon\u2019s climate change-related disclosures. The attorney general said Exxon had failed to produce cash flow spreadsheets used to make investment decisions, conduct corporate planning reviews, estimate company reserves and resource base quantities, and conduct asset impairment evaluations with respect to 26 major projects and assets \u201cthat are among the company\u2019s largest and most at risk due to climate change.\u201d The attorney general argued that the spreadsheets were highly relevant to whether and the extent to which Exxon incorporated a proxy cost for greenhouse gas emissions in its decision-making\u2014which the attorney general characterized as a \u201ckey safeguard that Exxon has frequently touted.\u201d The attorney general also said Exxon had continued to resist requests for documents provided by Exxon to the Securities and Exchange Commission (SEC) concerning impairment evaluations, reserves calculations, and climate change on the grounds of federal preemption. The attorney general argued that Exxon was precluded from arguing that SEC regulations preempted the attorney general\u2019s investigation since the federal district court for the Southern District of New York had already rejected this claim in its March 2018 dismissing Exxon\u2019s federal lawsuit challenging the investigation.\u00a0People v. PricewaterhouseCoopers LLP<\/em><\/a>, No. 451962\/2016 (N.Y. Sup. Ct. June 19, 2018).<\/p>\n

Parties Filed Appeals of California Court Ruling That Rejected CEQA Claims About Oil and Gas Ordinance\u2019s Greenhouse Gas Impacts<\/strong><\/p>\n

In June 2018, environmental groups and an almond farm appealed a California state court ruling that largely upheld the California Environmental Quality Act review for a Kern County ordinance that the environmental groups said would authorize thousands of oil and gas wells annually without additional assessment. In March 2018, the trial court rejected, among other arguments, the environmental groups\u2019 contention that greenhouse gas mitigation measures would not be effective. The court noted that three regulatory mitigation measures would apply and that for emissions not addressed by those measures applicants for permits could choose from three options to reduce emissions to \u201cno net increase\u201d: (1) verified reductions by the applicant; (2) acquisition of offset credits; and (3) inclusion in an emission reduction agreement. Because the environmental groups did not object to the effectiveness of directly reducing emissions, the court said their challenge to the remaining two options was academic. The court also said the groups did not exhaust administrative remedies, but nonetheless also concluded on the merits that substantial evidence supported the County\u2019s determination that the \u201cno net increase\u201d measures would be effective. The court also found that the environmental impact report adequately disclosed and analyzed long-term impacts to climate, including greenhouse gas emissions between 2035 and 2050. An energy company also appealed the trial court\u2019s order, which rejected the company\u2019s contract clause, equal protection, and due process claims.\u00a0Vaquero Energy v. County of Kern<\/a><\/em>, Nos. BCV-15-101645, BCV-15-101666, BCV-15-101679 (Cal. Super. Ct. ruling Mar. 12, 2018 and judgment Apr. 20, 2018);\u00a0King & Gardiner Farms LLC v. County of Kern<\/a><\/em>, No. F077656 (Cal. Ct. App. June 11, 13, and 18, 2018).<\/p>\n

Environmental Groups Filed New Challenge to Delta Plan in California Superior Court, Alleging Failure to Consider Climate Change Effects on Hydrology<\/strong><\/p>\n

Six environmental groups filed a lawsuit in California Superior Court challenging the Delta Stewardship Council\u2019s approval of amendments to the Delta Plan, which is the long-term management plan for the Sacramento-San Joaquin Delta. The groups asserted that the action was in violation of the Delta Reform Act and that the Council had not complied with CEQA. The groups also asserted that the council had not complied with a 2016 judgment and writ finding that the original Delta Plan adopted in 2013 violated the Delta Reform Act. The petitioners alleged that the 2016 writ also required that the Council adopt new CEQA findings and recertify the 2013 programmatic environmental impact report (PEIR) to the extent the Council relied on it in the future. The shortcomings and failures alleged by the groups in their challenge to the 2018 amendments and PEIR include a failure to disclose and analyze climate change effects on hydrology.\u00a0Friends of the River v. Delta Stewardship Council<\/a><\/em>, No. 2018-80002901 (Cal. Super. Ct. May 25, 2018).<\/p>\n

HERE IS A RECENT ADDITION TO THE NON-U.S. CLIMATE LITIGATION CHART.<\/strong><\/p>\n

Greenpeace Indonesia and Local Residents Challenged Granting of Environmental Permits for Expansion of Coal-Fired Power Plant<\/strong><\/p>\n

Greenpeace Indonesia and three local residents of Buleleng District, Bali challenged the Bali Governor’s granting of environmental permits for the expansion of the Celukan Bawang Coal-Fired Power Plant through Bali Governor’s Decree No.660.3 \/ 3985 \/ IV-A \/ DISPMPT. Plaintiffs allege that\u00a0 the Bali Governor violated environmental law No.32 of 2009 and international commitments under the United Nations Framework Convention on Climate Change by granting the environmental permits without consideration of the climate impacts of adding two 330 MW coal-fired units to the project. The Celukan Bawang Coal Fired Power Plant Company is a defendant intervenor in the litigation.<\/p>\n

Nine Indonesian and international environmental groups filed an amici curiae brief in the proceeding before the Denpasar Administrative Court. They join the plaintiffs in asserting that the project does not comply with the Environmental Protection and Environmental Law No.32 of 2009 and undermines Indonesia\u2019s international climate commitments because the Bali Governor did not conduct a comprehensive analysis of climate change impacts of the plant expansion.\u00a0Greenpeace Indonesia and Others v. Bali Provincial Governor and Celukan Bawang Coal Fired Power Plant Company<\/em><\/a>, 2 \/ G \/ LH \/ 2018 \/ PTUN.DPS (Denpasar Admin. Ct., filed Jan. 24, 2018; amici brief June 2018).<\/p>\n","protected":false},"excerpt":{"rendered":"

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate@gmail.com. HERE ARE THE ADDITIONS TO THE\u00a0CLIMATE CASE CHART\u00a0SINCE UPDATE # 111. FEATURED CASE […]<\/p>\n","protected":false},"author":1889,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5673,5671],"tags":[],"class_list":{"0":"post-5773","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"category-international","8":"czr-hentry"},"yoast_head":"\nJuly 2018 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\/2018\/07\/02\/july-2018-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=\"July 2018 Updates to the Climate Case Charts - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate@gmail.com. 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