{"id":5892,"date":"2018-09-06T11:48:17","date_gmt":"2018-09-06T16:48:17","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5892"},"modified":"2018-09-06T11:48:17","modified_gmt":"2018-09-06T16:48:17","slug":"september-2018-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2018\/09\/06\/september-2018-updates-to-the-climate-case-charts\/","title":{"rendered":"September 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 # 113.<\/strong><\/p>\n

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

Texas Federal Court Allowed Securities Fraud Suit to Proceed Against Exxon<\/strong><\/p>\n

The federal district court for the Northern District of Texas found that investors in Exxon Mobil Corporation (Exxon) had sufficiently pleaded claims that Exxon and certain Exxon officials made material misstatements concerning the company\u2019s use of proxy costs for carbon in business and investment decisions. Exxon argued that the investors\u2019 allegations that it stated a different proxy cost in public statements than it used in internal calculations were based on the investors\u2019 confusing of two separate proxy costs\u2014one for carbon and one for greenhouse gases\u2014as the same proxy cost. The court concluded, however, that \u201c[w]hether the two differing proxy cost values represent two different costs or the same cost with different values applied internally than publicly purported to be applied is a factual dispute and cannot be determined at this motion to dismiss stage.\u201d The court also noted that the complaint alleged that Exxon had indicated to investors that it used only one proxy cost across all business units. The court also found that the plaintiffs had alleged sufficient facts to plead other material misstatements related to the condition of certain specific businesses. The court further ruled that the plaintiffs had adequately pleaded loss causation and had met the heightened scienter standard for all defendants except for Exxon\u2019s vice president of investor relations. The allegations supporting the court\u2019s finding that the scienter standard was met included allegations that Exxon\u2019s management committee regularly received detailed information on carbon-related risks and proxy costs, allegations that Exxon was particularly motivated to maintain its AAA credit rating in advance of a $12 billion public debt offering, and allegations that three of the defendants signed documents filed with the Securities and Exchange Commission that allegedly contained materially misleading information.\u00a0Ramirez v. Exxon Mobil Corp.<\/em><\/a>, No.\u00a03:16<\/span><\/span>-CV-3111 (N.D. Tex. Aug. 14, 2018).<\/p>\n


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

Massachusetts High Court Upheld State\u2019s Greenhouse Gas Emissions Limits for Power Plants<\/strong><\/p>\n

The Massachusetts Supreme Judicial Court held that the Massachusetts Department of Environmental Protection (MassDEP) had authority under the Global Warming Solutions Act of 2008 (GWSA) to set greenhouse gas emissions limits for the electric sector. In addition, the court rejected the argument of parties challenging the emissions limitations that the limits were arbitrary and capricious and inconsistent with the GWSA because they would actually result in increased emissions. The court also disagreed with the challengers\u2019 reading of a sunset provision for regulations and concluded that the provision of the GWSA authorizing the emissions limits was intended to continue to apply after\u00a0December 31, 2020<\/span><\/span>\u00a0and to require that MassDEP promulgate new regulations to take effect after that date.\u00a0New England Power Generators Association, Inc. v. Department of Environmental Protection<\/em><\/a>, No. SJC-12477 (Mass. Sept. 4, 2018).<\/p>\n

Washington State Court Said Courts Were Not Right Forum for Young Washingtonians\u2019 Climate Advocacy<\/strong><\/p>\n

A Washington Superior Court granted the State of Washington\u2019s motion for judgment on the pleadings in a lawsuit brought by 12 Washington residents under the age of 18 to compel the State to develop and implement an enforceable climate recovery program. The plaintiffs also asked the court to declare that the State\u2019s policies violated their \u201cfundamental and inalienable constitutional rights to life, liberty, property, equal protection, and a healthful and pleasant environment, including a stable climate system.\u201d The court noted that both sides in the case \u201cagree that climate change is an urgent problem,\u201d but that \u201cthey disagree on what action should be taken and how quickly it must be done.\u201d The court concluded that issues raised in the case were \u201cquintessentially political questions that must be addressed by the legislative and executive branches of government\u201d and that \u201ccannot appropriately be resolved by a court.\u201d The court indicated that while the plaintiffs had attempted to \u201cavoid the problem of nonjusticiability\u201d by framing a constitutional claim, there was no right to a clean environment found in the Washington State constitution. The court also found that the plaintiffs had not stated a cognizable equal protection claim based on their age. The court said it appreciated the plaintiffs\u2019 \u201cconcerns about climate change, and their passion for and commitment to urgent action\u201d and hoped they would not be discouraged and would continue \u201cto help solve the problems related to climate change\u201d by advocating before the political branches.\u00a0Aji P. v. State<\/em><\/a>, No. 18-2-04448-1 SEA (Wash. Super. Ct. Aug. 14, 2018).<\/p>\n

D.C. Circuit Dismissed \u201cMoot\u201d Challenges to EPA\u2019s Withdrawn \u201cNo Action Assurance\u201d for Small Manufacturers of Glider Vehicles<\/strong><\/p>\n

The D.C. Circuit dismissed proceedings challenging the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) now-withdrawn \u201cNo Action Assurance\u201d memorandum in which EPA provided assurance that it would not enforce its greenhouse gas emissions and fuel efficiency standards for trucks against small manufacturers of \u201cglider\u201d vehicles and kits. The D.C. Circuit said the challenges were moot. The D.C. Circuit said that although \u201cvoluntary cessation of challenged activity does not moot a case,\u201d EPA\u2019s voluntary conduct mooted the case both because EPA said it would not provide any other no action assurance and also because the D.C. Circuit would not be able to provide any meaningful relief concerning penalties that could be imposed in potential enforcement proceedings concerning glider vehicle production while the No Action Assurance memorandum was in effect. The states and environmental groups challenging the memorandum had urged the D.C. Circuit not to dismiss on mootness grounds. The environmental groups characterized the memorandum\u2019s withdrawal as \u201ca shortcut by which EPA has tried to avoid judicial scrutiny of a fatally flawed agency action.\u201d They argued that EPA had not acknowledged the illegality of the memorandum or committed to enforcing the current standards. The state petitioners argued that the challenges would not be moot at least until the 60-day period for challenging the withdrawal had passed.\u00a0Environmental Defense Fund v. EPA<\/em><\/a>, No. 18-1190 (D.C. Cir. Aug. 22, 2018).<\/p>\n

Ninth Circuit Said Aspects of Decision Not to List Arctic Grayling Population Under the Endangered Species Act Were Arbitrary and Capricious<\/strong><\/p>\n

The Ninth Circuit Court of Appeals ruled that the U.S. Fish and Wildlife Service (FWS) had acted arbitrarily and capriciously in certain respects when it determined not to list the Upper Missouri River Valley distinct population segment of arctic grayling as endangered or threatened. The arctic grayling prefers cooler waters and is threatened by climate change. While the Ninth Circuit held that the FWS did not err in considering only the current range of the arctic grayling when determining whether it was in danger of extinction \u201cin all or a significant portion of its range,\u201d the Ninth Circuit found that the FWS acted arbitrarily and capriciously when it (1) ignored available data that a population of arctic grayling was declining; (2) arbitrarily relied on the ability of the arctic grayling to migrate to cold water refugia; and (3) failed to explain why the uncertainty of climate change favored not listing. The Ninth Circuit remanded to the FWS for reassessment of its findings.\u00a0Center for Biological Diversity v. Zinke<\/em><\/a>, No. 16-35866 (9th Cir. Aug. 17, 2018).<\/p>\n

Montana Federal Court Stopped Grizzly Bear Hunt<\/strong><\/p>\n

On August 30, 2018, the federal district court for the District of Montana granted a motion for a temporary restraining order halting the hunting of grizzly bears. Plaintiffs challenging the delisting of the Greater Yellowstone Ecosystem distinct population segment of grizzly bears under the Endangered Species Act filed the motion after the court heard arguments on the merits of the case earlier in the day. The hunting season was scheduled to begin on September 1. The plaintiffs have asserted a number of problems with the FWS\u2019s decision-making, including a failure to adequately consider the impacts of climate change on the grizzly bears.\u00a0Crow Indian Tribe v. United States<\/em><\/a>, No. 17-cv-89 (D. Mont. Aug. 30, 2018).<\/p>\n

Federal Court in Maine Rejected Pipeline Operator\u2019s Challenge to Local Law Prohibiting Crude Oil Loading at South Portland Harbor<\/strong><\/p>\n

The federal district court for the District of Maine ruled that the City of South Portland\u2019s ordinance prohibiting the loading of crude oil onto tankers and related activities and structures did not violate the dormant Commerce Clause or the Foreign Commerce Clause. The ordinance, known as the \u201cClean Skies Ordinance,\u201d was adopted after a pipeline operator (the plaintiff in this case) made plans to reverse the flow in a pipeline that extended from the harbor in South Portland to refineries in Quebec so that instead of transporting crude oil from the harbor to the refineries, the pipeline could transport crude oil from Canada to the harbor for shipment. Concerns regarding local pollution and other local impacts were raised in response to these plans, as well as concerns regarding climate change. The Clear Skies Ordinance\u2019s stated purposes are to \u201cencourage the most appropriate use of land throughout the municipality\u201d; \u201cto protect citizens and visitors from harmful effects caused by air pollutants\u201d; \u201cto promote a wholesome home environment\u201d; and \u201cto conserve natural resources.\u201d \u00a0The district court found that the ordinance did not regulate extraterritorially even if it had effects on the functions of the pipeline company\u2019s infrastructure outside the city. The court was not persuaded by the pipeline operator\u2019s arguments that the ordinance had an \u201cextraterritorial purpose,\u201d including arguments that members of the public had cited the pipeline\u2019s potential impacts outside the city, including concerns about continued reliance on fossil fuels causing global climate change. The court said the \u201cvast majority\u201d of evidence regarding support of the ordinance focused on local impacts and that \u201c[c]ourts have upheld other statutes more clearly motivated by extraterritorial concerns, as long as the regulatory effect did not control out-of-state transactions.\u201d The court also found that the ordinance did not discriminate against interstate or foreign commerce on its face or in practical effect and that the operator had not shown that the primary purpose of the ordinance was to discriminate against such commerce. In making this finding, the court noted that while several members of the City Council had \u201cexpressed their desire to see reduced reliance on fossil fuels in the economy in general through more renewables,\u201d they \u201calso disclaimed an ability to accomplish that goal with an ordinance \u2026 and focused their comments on the developmental impacts within South Portland.\u201d The court also found that the ordinance did not impose burdens on foreign or interstate commerce that were clearly excessive in relation to the putative local benefit. Finally, the court found that the ordinance did not impermissibly interfere with the federal government\u2019s ability to speak with \u201cone voice\u201d when regulating commerce with foreign governments.\u00a0Portland Pipe Line Corp. v. City of South Portland<\/em><\/a>, No.\u00a02:15<\/span><\/span>-cv-00054-JAW (D. Me. Aug. 24, 2018).<\/p>\n

Montana Federal Court Ordered Supplemental Environmental Review of New Route for Keystone XL Pipeline<\/strong><\/p>\n

In lawsuits challenging the presidential permit for the Keystone XL pipeline, the federal district court for the District of Montana ruled that the federal defendants must supplement the environmental impact statement to consider the impacts of an alternative route approved by the Nebraska Public Service Commission. The court concluded that the National Environmental Policy Act (NEPA) required supplementation in this situation where ongoing federal action remained and the defendants had not analyzed the alternative. The court said it would address Endangered Species Act arguments and other remaining issues in a future order.\u00a0Indigenous Environmental Network v. U.S. Department of State<\/em><\/a>, No. CV-17-29 (D. Mont. Aug. 15, 2018).<\/p>\n

Colorado Federal Court Upheld New Environmental Impact Statements Related to Coal Mine Expansion<\/strong><\/p>\n

Almost four years after a Colorado federal court\u00a0vacated<\/a>\u00a0federal actions authorizing expansion of an underground coal mine in Colorado because the defendants had failed to adequately consider greenhouse gas impacts, the court rejected challenges to the new supplemental environmental impact reviews conducted by the federal government. The supplemental environmental impact statements (SEISs) addressed an exception to the Colorado Roadless Rule that allowed road construction related to coal mining on previously protected land in the Sunset Roadless Area (the \u201cNorth Fork Exception\u201d) and lease modifications adding new lands to an existing coal mine. The court rejected the plaintiffs\u2019 contentions that the defendants improperly refused to consider an alternative to the North Fork Exception that protected a particular roadless area and an alternative to the lease modifications requiring methane flaring, which would have reduced greenhouse gas emissions. The court also rejected arguments that the defendants failed to adequately disclose climate change impacts. First, the court found that the defendants had properly considered and provided the basis for its conclusions regarding the effects on demand for electricity of increased supply of a particular type of coal. Second, the court rejected the contention that the SEIS for the lease modifications should have included an updated social cost of carbon analysis reflecting repeal of the Clean Power Plan. The plaintiffs unsuccessfully argued that an updated SEIS was required since EPA proposed to repeal the Clean Power Plan after preparation of the SEIS for the North Fork Exception (on which the SEIS for the lease modifications relied) but prior to the finalization of the lease modifications.\u00a0High Country Conservation Advocates v. U.S. Forest Service<\/em><\/a>, No. 17-cv-03025 (D. Colo. Aug. 10, 2018).<\/p>\n

Arizona Supreme Court Allowed Clean Energy Constitutional Amendment to Go on General Election Ballot<\/strong><\/p>\n

On August 29, 2018, the Arizona Supreme Court affirmed a trial court judgment allowing the \u201cClean Energy for a Healthy Arizona Amendment\u201d to be placed on the general election ballot. The amendment would require that electricity providers generate at least 50% of annual sales of electricity from renewable energy sources by 2030. The plaintiffs had contested the validity of the ballot initiative and had asserted that the backers of the ballot initiative had not obtained enough valid signatures to qualify the initiative for the ballot. After a five-day trial, the court\u00a0found<\/a>\u00a0on August 27 that the backers had gathered enough signatures to qualify for the ballot.\u00a0Leach v. Reagan<\/em><\/a>, No. CV-18-0230-AP\/EL (Ariz. Aug. 29, 2018).<\/p>\n

Arizona Supreme Court Declined to Step in to Halt Disclosure of Climate Scientists\u2019 Emails<\/strong><\/p>\n

On August 29, 2018, the Arizona Supreme Court denied motions by the Arizona Board of Regents for stays of the release of emails of two climate scientists in response to a 2011 public records law request by the Energy & Environment Legal Institute (then known as the American Tradition Institute). The court also declined to accept jurisdiction of the Board of Regents\u2019 Petition for Special Action.\u00a0Board of Regents v. Court of Appeals Division Two<\/em><\/a>, No. CV-18-0194-SA (Ariz. Aug. 29, 2018).<\/p>\n

California Appellate Court Upheld Cumulative Greenhouse Gas Analysis for Timber Harvesting Plan<\/strong><\/p>\n

In an unpublished opinion, the California Court of Appeal affirmed a trial court decision upholding the California Department of Forestry and Fire Protection\u2019s (CDF\u2019s) approval of a timber harvesting plan. The court rejected arguments that CDF failed to meet its obligations under the California Environmental Quality Act and the Forest Practices Act to consider the plan\u2019s cumulative impacts on greenhouse gas emissions. First, the appellate court declined to \u201csecond guess\u201d CDF\u2019s use of the California Air Resources Board\u2019s Climate Change Scoping Plan (as revised in 2014) as the threshold for significance, rather than greenhouse gas emissions reductions targets for 2020 and 2050 established by executive order. Second, the Court of Appeal found that substantial evidence supported the conclusion that cumulative impacts on global warming would be insignificant. The court rejected a number of arguments attacking CDF\u2019s analysis, including assertions that numerical calculations were required to support carbon sequestration projections, that the cumulative impacts analysis was flawed because it was based on carbon levels on the timber company\u2019s total ownership rather than only on the land subject to the timber harvesting plan, and that CDF acted \u201coutside the norm\u201d by focusing on future net carbon conditions rather than on existing or short-term carbon conditions. The appellate court also rejected the argument that reversal of the trial court\u2019s decision was required because the projections of future tree growth were not enforceable.\u00a0Forest Preservation Society v. Department of Forestry & Fire Protection<\/em><\/a>, No. A148182 (Cal. Ct. App. Aug. 28, 2018).<\/p>\n

Maryland High Court Upheld Approval of Utility Acquisition That Challengers Alleged Could Harm Renewable Energy Markets<\/strong><\/p>\n

The Maryland Court of Appeals affirmed lower court decisions upholding the Maryland Public Service Commission\u2019s (Commission\u2019s) approval of Exelon Corporation\u2019s acquisition of Pepco Holdings, Inc. and its utility subsidiaries. One of the issues raised on appeal concerned whether the Commission\u2019s assessment of potential harms to renewable energy and distributed generation markets was arbitrary and capricious. The Court of Appeals found that the Commission\u2019s findings supported its conclusion that harm to these markets was speculative. The Court of Appeals also noted that courts may consider \u201cpolicy goals stated in pertinent statutes or regulations\u201d in determining whether agency action is arbitrary and capricious. In this case, the court said relevant policy goals included combatting the threat of global warming. The court found that the Commission properly considered these issues pursuant to the legislative directive to take the public interest into account in assessing an acquisition.\u00a0Maryland Office of People\u2019s Counsel v. Maryland Public Service Commission<\/em><\/a>, No. 15 (Md. Aug. 29, 2018).<\/p>\n

Connecticut Court Upheld Variances for Rebuilding of Coastal Home, Cited Need to Prepare Homes for Sea Level Rise<\/strong><\/p>\n

A Connecticut Superior Court cited the need to accommodate sea level rise and flood hazards in a decision upholding variances for the razing and rebuilding of a cottage in the Town of Greenwich. The owners of the cottage received approvals necessary to demolish the existing nonconforming cottage, which was destroyed by Hurricane Sandy in 2012, and to construct a smaller structure. The court found that the proposed new dwelling would not substantially affect the comprehensive zoning plan, which, the court noted, addressed sea level rise through a flood hazard overlay zone. The court said this regulatory response to sea level rise was consistent with Connecticut land use jurisprudence. The court also found that substantial evidence supported both the finding that compliance with regulations would pose an unusual hardship and the finding that the new dwelling would actually decrease nonconformities. The court stated: \u201cSimply put, the existing home\u2014and perhaps, other storm damaged waterfront homes\u2014cannot realistically be rebuilt or elevated and comply with the new flood regulations without some elasticity in the application of the regulations.\u201d The court indicated that zoning regulations and rules concerning nonconforming uses had not been adopted with climate change and sea level rise in mind. The court recommended that the Connecticut legislature take action to encourage rebuilding or conforming of existing waterfront homes to comply with new building requirements and to address sea level rise. The court said such rebuilding should not depend \u201con the destruction of a dwelling as an antecedent.\u201d\u00a0Lauridsen Family Limited Partnership v. Zoning Board of Appeals of Town of Greenwich<\/em><\/a>, No. CV-17-6080201-S (Conn. Super. Ct. July 12, 2018).<\/p>\n

New York Court Ordered Exxon to Respond to Attorney General\u2019s Document Requests, Interrogatory; Indicated That Investigation Should Conclude Soon<\/strong><\/p>\n

At a hearing on August 29, 2018, a New York trial court ordered Exxon to produce 14 \u201creadily available\u201d or \u201ceasily produceable\u201d spreadsheets that the New York attorney general sought in its investigation into Exxon\u2019s climate change-related disclosures (but not 12 other spreadsheets requested by the attorney general that Exxon said would require extensive work). Exxon must also respond to an interrogatory to be served by the attorney general, which the attorney general indicated would concern whether Exxon applied a directive to use an \u201calternate methodology\u201d to for accounting for greenhouse gas costs to assets and businesses across the company. In addition, Exxon agreed to provide documents it had already provided to the Securities and Exchange Commission but not to the attorney general. At the outset of the hearing, the judge told the attorney general that \u201cthis cannot go on interminably\u201d and that \u201cyou\u2019ve been investigating for two years. So you\u2019re either going to file a case or you\u2019re not going to file a case.\u201d The attorney general indicated it was coming to an end of the investigation. Exxon told the court, \u201cIf they have a theory, they should bring a case. They should either put up or shut up.\u201d\u00a0People v. PricewaterhouseCoopers LLP<\/em><\/a>, No. 451962\/2016 (N.Y. Sup. Ct. Aug. 29, 2018).<\/p>\n

FERC Denied Rehearing of Authorization of PennEast Pipeline<\/strong><\/p>\n

The Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction of the PennEast Project, a 116-mile natural gas pipeline extending from Pennsylvania to New Jersey and related lateral pipelines and facilities. FERC rejected arguments that its environmental review did not adequately consider the impact of greenhouse gas emissions on climate change. FERC said its review had gone beyond what NEPA required by examining regional and national emissions to put the project\u2019s estimated greenhouse gas emissions in context. FERC also said it had appropriately used a qualitative approach in its analysis of climate change effects. FERC reiterated its position that the social cost of carbon was not a useful tool for its NEPA reviews. Two commissioners dissented. Commissioner LaFleur said she believed the record demonstrated sufficient need for the project, but that she fundamentally disagreed with the majority\u2019s approach to examining climate impacts. She wrote that she believed the social cost of carbon \u201ccan meaningfully inform the Commission\u2019s decision-making to reflect the climate change impacts of an individual project.\u201d Commissioner Glick said the order denying rehearing was \u201cnot the product of reasoned decisionmaking,\u201d citing in particular the majority\u2019s assertions that upstream and downstream greenhouse gas emissions were not reasonably foreseeable and that it was not required to determine whether the impact from climate change was significant.\u00a0In re PennEast Pipeline Co.<\/em><\/a>, No. CP15-558-001 (FERC Aug. 10, 2018).<\/p>\n

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

EPA and HFC Manufacturers Opposed Supreme Court Review of 2015 Refrigerant Replacement Rule<\/strong><\/p>\n

EPA joined manufacturers of hydrofluorocarbon (HFC) refrigerants in opposing Supreme Court review of the D.C. Circuit\u2019s August 2017 decision striking down a 2015 EPA regulation that prohibited or restricted use of certain HFCs as replacements for ozone-depleting substances due to the HFCs\u2019 high global warming potential. EPA told the Court that the case did not warrant Supreme Court review. EPA said that while it argued before the D.C. Circuit that it had authority to issue the 2015 regulation, it had revisited the issue and \u201cnow believes that the decision below reflects the better understanding\u201d of the Clean Air Act provision at issue in the case. EPA said the question presented therefore was \u201cof limited prospective importance\u201d and also indicated that \u201c[s]ome of petitioners\u2019 concerns, moreover, may be addressed in an upcoming EPA rulemaking.\u201d The HFC manufacturers argued that certiorari was not warranted because (1) the D.C. Circuit\u2019s decision did not conflict with any decision of any court, (2) the question presented was not sufficiently important, and (3) the D.C. Circuit\u2019s decision was correct.<\/p>\n

Seventeen states and the District of Columbia filed an amicus brief in support of the petitioners. In addition, five of the leading U.S. manufacturers of heating, ventilation, air conditioning and commercial refrigeration (HVACR) equipment filed a brief in support of the petitioners, asserting that the D.C. Circuit\u2019s decision had \u201ctorn up\u201d a \u201cwell-established and reasonable path toward new, environmentally safer alternatives\u201d and \u201ccreated enormous uncertainty and associated costs.\u201d Another HVACR equipment manufacturer that also manufactured refrigerants filed a separate brief in support of the petitioners, similarly citing the D.C. Circuit decision\u2019s disruption of a \u201cwell-established regulatory regime.\u201d\u00a0Honeywell International Inc. v. Mexichem Fluor, Inc.<\/em><\/a>, Nos. 17-1703 and 18-2 (U.S.).<\/p>\n

EPA and Clean Power Plan Challengers Asked D.C. Circuit to Continue Holding Challenges in Abeyance Until EPA Completes New Rulemaking<\/strong><\/p>\n

After EPA Acting Administrator Andrew Wheeler signed a proposed rule to replace the Clean Power Plan regulations with the \u201cAffordable Clean Energy Rule,\u201d EPA filed a status report in the D.C. Circuit asking that the cases challenging the Clean Power Plan \u201ccontinue to be held in abeyance pending the conclusion of this high priority rulemaking.\u201d EPA said it was committed to completing the rulemaking \u201cas expeditiously as practicable.\u201d The petitioners and petitioners-intervenors in the case filed a status report in support of continued abeyance. North Dakota filed a separate status report in support of continued abeyance, asserting that it would suffer unique harms if the court removed the abeyance because it was the principal proponent of an argument that the Clean Power Plan violated the Clean Air Act\u2019s delegation to the states of authority to establish emission rate performance standards for existing power plants. North Dakota said that as a major lignite-producing coal state, it was disproportionately impacted by this \u201cusurpation\u201d of state authority and that its arguments on this issue \u201chave not been emphasized by other petitioners\u201d and \u201ccould potentially be lost if the case is remanded to the EPA.\u201d Intervenor-respondents in the case filed a response opposing the requests for further abeyance and a motion asking the court to decide the merits of the case.\u00a0West Virginia v. EPA<\/em><\/a>, No. 15-1363 (D.C. Cir. Aug. 24, 2018).<\/p>\n

Ninth Circuit Consolidated Fossil Fuel Companies\u2019 Appeals of Remand Orders in Cases Brought by San Mateo County and Other Local Governments<\/strong><\/p>\n

The Ninth Circuit Court of Appeals granted a joint motion to consolidate appeals of district court orders remanding cases brought by California cities and counties to hold fossil fuel companies liable for allegedly causing climate change impacts. The order consolidates the fossil fuel companies appeals in the cases brought by the County of San Mateo, County of Marin, City of Imperial Beach, County of Santa Cruz, City of Santa Cruz, and City of Richmond. The order also set a briefing schedule for the consolidated appeals: the fossil fuel companies\u2019 opening brief is due by\u00a0October 22<\/span><\/span>, the answering brief is due by\u00a0November 21<\/span><\/span>, and an optional reply brief is due 21 days after service of the answering brief. The order also referred San Mateo County, Marin County, and Imperial Beach\u2019s motion by for partial dismissal of the appeals to the merits panel. These appellees argue that the Ninth Circuit only has jurisdiction to review the issue of removal under the federal officer removal statute.\u00a0County of San Mateo v. Chevron Corp.<\/em><\/a>, Nos. 18-15499, 18-15502, 18-15503, 18-16376 (9th Cir. Aug. 20, 2018).<\/p>\n

San Francisco and Oakland Appealed Dismissal of Climate Change Nuisance Cases as Well as Denial of Remand<\/strong><\/p>\n

On August 24, 2018, San Francisco and Oakland filed notices of appeal of district court orders denying the cities\u2019 motions to remand their climate change nuisance cases, dismissing the cases for failure to state a claim, and dismissing the cases against four oil and gas companies for lack of personal jurisdiction.\u00a0City of Oakland v. BP p.l.c.<\/em><\/a>, No.\u00a03:17<\/span><\/span>-cv-06011 (N.D. Cal. Aug. 24, 2018);\u00a0City & County of San Francisco v. BP p.l.c.<\/em><\/a>, No.\u00a03:17<\/span><\/span>-cv-06012 (N.D. Cal. Aug. 24, 2018).<\/p>\n

Boulder and Rhode Island Argued for Remanding Climate Change Cases to State Court; Amended Complaint and New Motions to Dismiss Filed in King County Case<\/strong><\/p>\n

On August 31, 2018, Boulder County, San Miguel County, and the City of Boulder filed a memorandum of law in the federal district court for the District of Colorado in support of their motion to remand their case seeking to hold fossil fuel companies liable for causing climate change-related damages, including increased wildfires, extreme weather, and drought. They filed the remand motion on July 30, 2018. In the memorandum of law, the plaintiffs argued that they had \u201cfiled state law claims, in state court, for harms suffered entirely in Colorado.\u201d They argued that the well-pleaded complaint rule therefore foreclosed the fossil fuel companies\u2019 argument that their claims were actually federal common law claims. In addition, they asserted that even if an unpled federal common law claim could be the basis for removal, federal common law did not govern their claims. The plaintiffs also argued that federal issues raised by the defendants were defenses and therefore did not create federal jurisdiction. In addition, the plaintiffs asserted that the Clean Air Act did not completely preempt their claims, and that the defendants\u2019 other avenues for federal jurisdiction\u00a0 were not viable.\u00a0Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.<\/em><\/a>, No.\u00a01:18<\/span><\/span>-cv-01672 (D. Colo. Aug. 31, 2018).<\/p>\n

Rhode Island also moved to remand its climate change case against fossil fuel companies to state court. First, Rhode Island said the defendants\u2019 assertion that federal common law necessarily governed its claims was an ordinary preemption defense that did not confer federal jurisdiction. The State also contested the defendants\u2019 contention that climate change tort claims must be exclusively pleaded under federal common law and argued that its claims fell outside the scope of federal common law. The State also disputed the contentions that its claims necessarily raised substantial, disputed federal questions and that the Clean Air Act completely preempted its claims. In addition, the court argued against jurisdiction based on the Outer Continental Shelf Lands Act, enclave jurisdiction, the federal officer removal statute, bankruptcy removal provisions, and admiralty jurisdiction.\u00a0Rhode Island v. Chevron Corp.<\/em><\/a>, No.\u00a01:18<\/span><\/span>-cv-00395 (D.R.I. Aug. 17, 2018).<\/p>\n

On August 17, 2018, King County filed an amended complaint in its nuisance and trespass case against oil and gas companies. The amended complaint included additional allegations regarding the companies\u2019 connections to the State of Washington. The defendants filed new motions to dismiss on August 31, both for failure to state a claim and on personal jurisdiction grounds. Briefing of the motions to dismiss will be completed by\u00a0November 1, 2018<\/span><\/span>.\u00a0King County v. BP p.l.c.<\/em><\/a>, No.\u00a02:18<\/span><\/span>-cv-00758 (W.D. Wash.).<\/p>\n

Trade Group Asked for Detailed Status Report on Reconsideration of Medium- and Heavy-Duty Emissions Standards<\/strong><\/p>\n

A trade group challenging greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles filed a motion in the D.C. Circuit Court of Appeals asking the court to compel EPA and the National Highway Traffic Safety Administration (the Agencies) to submit a status report on its reconsideration of the standards, including a timeline for completion. The trade group said that if the Agencies could not commit to issuing a new proposed rule or announcing intent to retain the current rule\u00a0within 90 days<\/span><\/span>, the trade group would consider moving to lift the abeyance currently in place. The Agencies called the relief sought \u201cnot only unusual, but improper\u201d and characterized the motion as \u201ca bid to obtain the Agencies\u2019 internal timelines and deliberations with the goal of rearranging their regulatory priorities to suit Petitioner\u2019s own interests.\u201d\u00a0Truck Trailer Manufacturers Association, Inc. v. EPA<\/em><\/a>, No. 16-1430 (D.C. Cir. Aug. 6, 2018).<\/p>\n

Exxon Argued for Reversal of District Court\u2019s Dismissal of Lawsuit Against Attorneys General; NAM, U.S. Chamber of Commerce, and 12 States Weighed in to Support Exxon<\/strong><\/p>\n

On August 3, 2018, Exxon Mobil Corporation (Exxon) filed its opening brief asking the Second Circuit Court of Appeals to reverse the dismissal of Exxon\u2019s lawsuit challenging the constitutionality of investigations by the New York and Massachusetts attorneys general of climate change-related disclosures. Exxon argued that the district court had failed to address its viewpoint discrimination claims, which Exxon described as the \u201ccenterpiece\u201d of its complaint. Exxon also contended that the district court had erroneously imposed an evidentiary burden on Exxon rather than accepting what Exxon argued were plausible allegations while also improperly drawing inferences favoring the attorneys general. Exxon further argued that it had adequately pleaded its claims under the Fourth Amendment, Fourteenth Amendment, and Commerce Clause regardless of whether it had adequately pleaded that the attorneys general were motivated by an improper purpose. Exxon also sought to reverse the dismissal on res judicata grounds of its claims against the Massachusetts attorney general. Exxon argued that its constitutional claims were not raised or decided in Massachusetts state court proceedings and that it had not had a full and fair opportunity to raise the claims.<\/p>\n

Two motions were filed seeking leave to amicus briefs in support of Exxon. The National Association of Manufacturers (NAM) and U.S. Chamber of Commerce\u2014which characterized their organizations as \u201ctwo of the main representatives of the business community\u201d\u2014asserted that their proposed brief would be helpful \u201cbecause this matter presents important and complex issues regarding the scope of a state\u2019s power to subject private businesses to overbroad and burdensome legal investigations that chill First Amendment expression.\u201d Twelve states, led by Texas, said they had \u201ca direct and vital interest in the issues before the Court\u201d because \u201cstate attorneys general possess an inherent duty to preserve their roles as evenhanded enforcers of the law.\u201d The states argued that the New York and Massachusetts attorneys general were \u201cembracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints and that \u201c[i]n doing so, they are violating ExxonMobil\u2019s constitutional rights, abusing their power, and eroding public confidence in public officers.\u201d The attorneys general\u2019s briefs are due on\u00a0October 5<\/span><\/span>.\u00a0Exxon Mobil Corp. v. Healey<\/a><\/em>, No. 18-1170 (2d Cir. Aug. 3, 2018).<\/p>\n

Discovery Proceeded in\u00a0Juliana<\/em>; Court Set October Deadlines for Pretrial Filings<\/strong><\/p>\n

In the climate change case brought by young people against the federal government in the federal district court for the District of Oregon, the plaintiffs and defendants filed a status report on August 16, 2018. The issues discussed by the parties included the status of discovery, including the defendants\u2019 service of its expert reports on August 13. The parties also presented their positions in discovery disputes concerning, among other issues, the scheduling of depositions of the plaintiffs (which the plaintiffs asserted must be conducted during the summer before school started or be waived) and a late expert report served by the plaintiffs. At a status conference on August 16, the magistrate judge allowed the defendants\u2019 extra time to file a rebuttal report. He also set a deadline of\u00a0September 19<\/span><\/span>\u00a0for the plaintiffs\u2019 rebuttal expert reports. On August 24, the plaintiffs submitted a notice of supplemental disputed facts raised by defendants\u2019 expert reports to support their opposition to the defendants\u2019 motion for summary judgment, which is pending before the court after oral argument in July. The defendants\u2019 eight expert reports were attached as exhibits to the plaintiffs\u2019 notice. The expert reports for both the plaintiffs and the defendants are available on the\u00a0case page<\/a>. During a status conference on August 27, the court set a deadline of\u00a0October 15<\/span><\/span>\u00a0for submission of witness lists, exhibits lists, trial memoranda, objections to exhibits and motions in limine and set a pretrial conference for\u00a0October 23<\/span><\/span>.\u00a0Juliana v. United States<\/a><\/em>, No.\u00a06:15<\/span><\/span>-cv-1517 (D. Or.).<\/p>\n

WildEarth Guardians\u2019 Lawsuit in Montana Federal Court Alleged Federal Failure to Cause Examinations of Pipelines<\/strong><\/p>\n

WildEarth Guardians filed a lawsuit against the Secretary of Transportation, the Department of Transportation, the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the PHMSA administrator asserting that they violated the Mineral Leasing Act by failing to cause annual examinations of oil and gas pipelines and associated facilities on public lands. The complaint included allegations regarding health impacts of pipeline spills and failures as well as a catalog of recent pipeline failures in Colorado, Montana, Nevada, New Mexico, Utah, and Wyoming. The plaintiffs alleged that the spills result in both contamination on the ground and \u201calso contribute to climate change because natural gas is primarily composed of methane[,] \u2026 a potent greenhouse gas.\u201d\u00a0WildEarth Guardians v. Chao<\/a><\/em>, No.\u00a04:18<\/span><\/span>-cv-00110 (D. Mont., filed Aug. 14, 2018).<\/p>\n

Environmental Groups Filed FOIA Lawsuit Seeking Department of Energy Documents on Alleged Efforts to \u201cBail Out\u201d Coal and Nuclear Power<\/strong><\/p>\n

On August 6, 2018, Sierra Club and Environmental Defense Fund (EDF) filed a Freedom of Information Act (FOIA) lawsuit to compel the U.S. Department of Energy (DOE) to respond to requests submitted earlier in 2018 for documents related to DOE\u2019s alleged efforts to \u201cundermin[e] power markets through continued efforts to bail out or otherwise preference uneconomic coal and nuclear power.\u201d Sierra Club requested records related to (1) a March 2018 National Energy Technology Laboratory (NETL) report that plaintiffs characterized as asserting that coal-fired generation \u201cplayed a critical role during a winter storm\u201d and (2) any requests that DOE exercise its emergency authority under Section 202(c) of the Federal Power Act. EDF asked for records related to possible use of emergency authority under Section 202(c), including correspondence between certain DOE personnel and representatives of FirstEnergy Solutions Corporation (FirstEnergy), the owner of several coal and nuclear plants, and (2) correspondence between contributors to the NETL report, certain DOE personnel, and First Energy representatives.\u00a0 The plaintiffs alleged that in March 2018, FirstEnergy submitted a request that DOE exercise its emergency authority to provide assistance to certain coal and nuclear power plants.\u00a0Sierra Club v. U.S. Department of Energy<\/a><\/em>, No.\u00a04:18<\/span><\/span>-cv-04715 (D.D.C., filed Aug. 6, 2018).<\/p>\n

Plaintiffs Sought Summary Judgment in Challenges to Resumption of Federal Coal Leasing Program<\/strong><\/p>\n

States, conservation groups, and the Northern Cheyenne Tribe filed motions for summary judgment in their lawsuits challenging the Trump administration\u2019s resumption of the federal coal leasing program and its termination of the programmatic environmental impact review of the program. In March 2017, Secretary of the Interior Ryan Zinke issued Secretarial Order 3348, which revoked Secretarial Order 3338, issued by former Secretary of the Interior Sally Jewell in January 2016. Secretary Jewell\u2019s order commenced the process for the programmatic review and put in place a moratorium on new federal coal leases. The plaintiffs argued that Secretary Zinke\u2019s order was a \u201cmajor federal action\u201d that required consideration of potential environmental impacts, including climate impacts, under NEPA. The states also argued that the defendants had violated the Mineral Leasing Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act by failing to provide an reasoned explanation for the reversal of the defendants\u2019 prior position that comprehensive review of the federal program was necessary. The conservation groups and Northern Cheyenne Tribe argued that the order violated NEPA by failing to consider impacts to the Tribe and also argued that the defendants violated their trust obligation to the Tribe. An economist who is a former co-head of the federal Interagency Working Group on Social Cost of Greenhouse Gases submitted an amicus brief to assist the court in determining whether significant new scientific information justifies requiring supplemental environmental review of the coal leasing program and whether the decision to revoke Secretary Jewell\u2019s order was a major federal action that could significantly affect the environment. The federal defendants\u2019 response and cross-motion for summary judgment is due on\u00a0September 7<\/span><\/span>.\u00a0Citizens for Clean Energy v. U.S. Department of the Interior<\/a><\/em>, No. 17-cv-30 (D. Mont. July 27, 2018).<\/p>\n

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

UK Charity Filed Suit Against Secretary of Transport for Supporting Expansion of Heathrow Airport<\/strong><\/p>\n

Plan B Earth, a charity with the mission to realize the goals of the Paris Agreement on climate change, has filed a climate change lawsuit against the Secretary of State for Transport Chris Grayling in regards to the expansion of Heathrow International Airport. Claimants allege that the Secretary\u2019s national policy statement supporting the expansion of Heathrow Airport violated Section 10 of the Planning Act 2008 (the 2008 Act).<\/p>\n

Claimants argue that since the 2008 Act requires the Secretary to pursue the objective of sustainable development and consider the desirability of mitigating and adapting to climate change, it further gives rise to implicit obligations to consider the advice of the Committee on Climate Change (the CCC), the government\u2019s obligations under the Paris Agreement, and its commitment to review its national climate change targets in light of the Paris Agreement. Claimants maintain that the Secretary violated these implicit obligations by supporting the airport expansion without adequate consideration of the insufficiency of the current UK 2050 climate target (2050 Target), the UK\u2019s commitments under the Paris Agreement, the CCC\u2019s recommendations to review the 2050 Target, and government\u2019s recent agreement to review the 2050 Target. Accordingly, they assert the Secretary\u2019s actions were both ultra vires and irrational.<\/p>\n

Plaintiffs additionally allege violations of Section 149 of the Equality Act 2010 and the Human Rights Act 1998. Claimants seek declaratory relief, specifically a declaration that the Secretary of State acted unlawfully in violation of section 5 of the 2008 Act.\u00a0Plan B Earth v. Secretary of State for Transport<\/a><\/em>, Claim No. __ (Q.B. Admin. Ct. Aug. 6, 2018).<\/p>\n

Australian Beneficiary Brought Pension Fund to Court for Its Failure to Provide Information on Climate Business Risks and Plans to Address Those Risks<\/strong><\/p>\n

An Australian pension fund member filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia.<\/p>\n

The plaintiff, Mark McVeigh has contributed to REST since 2013. Under the Corporations Act 2001, super fund beneficiaries are entitled to request information that they need to make an informed decision about the management and financial condition of the fund. The plaintiff requested information from REST regarding the: \u201c(a) knowledge of REST\u2019s Climate Change Business Risks; (b) opinion of Climate Change, the Physical Risks, the Transition Risks and REST\u2019s Climate Change Business Risks; (c) actions responding to REST\u2019s Climate Change Business Risks; and (d) compliance with its obligations under the Corporations Act and other law with respect to REST\u2019s Climate Change Business Risks.\u201d Plaintiff alleges that the information provided by REST did not fulfill its obligations and thus seeks declaratory relief that REST violated the Corporations Act by failing to disclose the requested information and an injunction requiring REST to provide that information. In the alternative, plaintiff seeks a declaration and injunction in equitable jurisdiction.\u00a0McVeigh v. Retail Employees Superannuation Trust<\/a><\/em>, No. NSD1333\/2018 (Fed. Ct. Austl., filed July 24, 2018).<\/p>\n

UK Charity Appealed High Court\u2019s Denial of Permission to Proceed with Climate Suit Against the UK<\/strong><\/p>\n

In 2017, Plan B Earth filed a climate change lawsuit against the Secretary of State for Business, Energy, and Industrial Strategy (Secretary of State).\u00a0 Plaintiffs alleged that the Secretary of State violated the Climate Change Act 2008 (the 2008 Act) and other law by failing to revise a 2050 carbon reduction target in light of new international law and scientific developments. On July 20, 2018, the High Court found the claims were not arguable and denied permission for the case to proceed. Plan B Earth appealed the decision on multiple grounds, including that the judge misinterpreted Article 2(1)(a)of the Paris Agreement. Appellants argue that the judge incorrectly read this provision to allow for a range of ambition rather than holding the UK for responsible for \u201c[h]olding the increase in the global average temperature to well below 2\u00b0C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5\u00b0C above pre-industrial levels.\u201d Accordingly, appellants further argue that the judge incorrectly found the current UK 2050 climate target compatible with the Paris Agreement due to this misinterpretation of required ambition.\u00a0Plan B Earth v. Secretary of State for Business, Energy, and Industrial Strategy<\/a><\/em>, Claim No. CO\/16\/2018 (Q.B. Admin. Ct.).<\/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 # 113. 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],"tags":[],"class_list":{"0":"post-5892","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"czr-hentry"},"yoast_head":"\nSeptember 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\/09\/06\/september-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=\"September 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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