{"id":6375,"date":"2019-04-02T08:04:34","date_gmt":"2019-04-02T13:04:34","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=6375"},"modified":"2023-02-28T10:37:33","modified_gmt":"2023-02-28T15:37:33","slug":"april-2019-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2019\/04\/02\/april-2019-updates-to-the-climate-case-charts\/","title":{"rendered":"April 2019 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> SINCE UPDATE #120.<\/strong><\/p>\n

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

D.C. Federal Court Said Climate Change Analysis for Wyoming Oil and Gas Leases Was Insufficient<\/strong><\/p>\n

The federal district court for the District of Columbia ruled that the U.S. Bureau of Land Management (BLM) did not sufficiently consider the climate change effects of oil and gas leasing in its National Environmental Policy Act (NEPA) review for 282 lease sales covering more than 303,000 acres in Wyoming. The court found that BLM did not take a hard look at drilling-related and downstream greenhouse gas emissions associated with the leases and that BLM failed to \u201csufficiently compare those emissions to regional and national emissions.\u201d Regarding drilling-related emissions, the court rejected the argument that BLM could defer its consideration of certain environmental impacts, including greenhouse gas emissions, until the drilling stage; the court said NEPA required BLM at the leasing stage to \u201creasonably quantify the [greenhouse gas] emissions resulting from oil and gas development on the leased parcels in the aggregate.\u201d The court found that BLM had sufficient information to forecast greenhouse gas emissions at this stage and concluded that BLM\u2019s justification for limiting its analysis to qualitative discussions of greenhouse gas emissions and their impacts was not reasonable. The court also rejected BLM\u2019s argument that the environmental assessments for the lease sales had been \u201ctiered\u201d to environmental impact statements (EISs) for resource management plans that quantified emissions; the court noted that not all of the EISs included such quantitative analysis and that the analysis in the EISs that did quantify emissions was not adequate for the leasing stage analysis. With respect to downstream emissions from combustion of oil and gas, the court found that such emissions were indirect effects of the oil and gas leasing under the applicable \u201cheightened\u201d causation standard. The court declined, however, to require BLM to quantify downstream emissions. Instead, the court remanded for BLM to \u201cstrengthen\u201d its discussion of downstream effects and directed the agency to consider whether quantifying greenhouse gas emissions from downstream use was \u201creasonably possible,\u201d including through use of an emissions calculator suggested by the plaintiffs. Regarding cumulative effects, the court ruled that BLM\u2019s refusal to quantify greenhouse gas emissions rendered its cumulative impacts analysis inadequate. BLM\u2019s duty under NEPA, said the court, was to \u201cquantify the emissions from each leasing decision\u2014past, present, or reasonably foreseeable\u2014and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decision at issue.\u201d The court stated that \u201c[g]iven the national, cumulative nature of climate change, considering each individual drilling project in a vacuum deprives the agency and the public of the context necessary to evaluate oil and gas drilling on federal land before irretrievably committing to that drilling.\u201d The court rejected, however, the plaintiffs\u2019 contention that BLM was required to use certain protocols\u2014the \u201csocial cost of carbon\u201d and the \u201cglobal carbon budget\u201d\u2014to quantify climate change impacts. The court did not vacate the leasing decisions but enjoined BLM from authorizing new oil and gas drilling on the leases while the agency conducts its additional analysis.\u00a0WildEarth Guardians v. Zinke<\/a><\/em>, No. 16-1724 (D.D.C. Mar. 19, 2019).<\/p>\n


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

Ninth Circuit Declined to Lift Injunction Barring Keystone XL Construction and Preconstruction Activities; Trump Issued New Presidential Permit Intended to Be Unreviewable<\/strong><\/p>\n

On March 15, 2019, the Ninth Circuit Court of Appeals denied a motion by the Keystone XL pipeline developers to stay a district court order barring them from proceeding with construction and certain preconstruction activities. A Montana federal district court\u00a0enjoined<\/a>\u00a0such activities pending the U.S. Department of State\u2019s completion of additional environmental review in compliance with the court\u2019s November 2018\u00a0order<\/a>. On March 29, 2019, however, President Trump issued a\u00a0new presidential permit<\/a>\u00a0authorizing the construction of the pipeline across the U.S.-Canadian border. The new permit revoked the March 2017 permit that is the subject of the lawsuit. The new permit stated that it was granted \u201cnotwithstanding\u201d a January 2017 presidential memorandum on which the district court\u00a0relied<\/a>\u00a0to find that the March 2017 permit was not immune from review. The district court concluded that the January 2017 memorandum waived the president\u2019s right to review the State Department\u2019s decision on the permit and that the State Department\u2019s decision was subject to judicial review. Neither the government nor the pipeline developer had applied to the district court or the Ninth Circuit for relief from the injunction as of April 1.<\/p>\n

In their stay motion in the Ninth Circuit, the Keystone developers focused on threshold jurisdictional issues, including the issue of whether the district court had erred in finding that the State Department\u2019s issuance of a presidential permit for the project was subject to judicial review. The developers also argued that the scope of the district court\u2019s injunction was impermissibly broad. In the order denying the stay, the Ninth Circuit characterized the jurisdictional questions as \u201ccomplex\u201d and found that the developers had not made \u201cthe requisite strong showing that they are likely to prevail on the merits.\u201d Noting that the district court itself had narrowed the scope of its injunction, the Ninth Circuit found no abuse of discretion in the district court\u2019s declining to stay the injunction.\u00a0Indigenous Environmental Network v. U.S. Department of State<\/a><\/em>, Nos. 18-36068 et al. (9th Cir. Mar. 15, 2019).<\/p>\n

Alaska Federal Court Vacated Trump Revocation of Obama Withdrawals of Arctic and Atlantic Areas from Oil and Gas Leasing<\/strong><\/p>\n

On March 29, 2019, the federal district court for the District of Alaska vacated the portion of a 2017 executive order issued by President Trump that revoked President Obama\u2019s prior withdrawals of certain areas of the Outer Continental Shelf in the Arctic and Atlantic Oceans from oil and gas leasing. The court held that President Trump\u2019s revocation of the withdrawals exceeded presidential authority granted by the Outer Continental Shelf Lands Act (OCSLA). The court said that the text of Section 12(a) of the OCSLA\u2014which provides that the president \u201cmay, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf\u201d\u2014did not expressly grant the power to revoke prior withdrawals. Although the court said the inclusion of \u201cfrom time to time\u201d in Section 12(a) rendered the provision ambiguous, the court concluded that the structure, legislative history, and purposes of the OCSLA indicated that Congress intended to authorize the president only to withdraw lands from leasing. The court indicated that instances of Congress deciding not to challenge \u201cthe small number of prior revocations\u201d fell \u201cfar short of the high bar required to constitute acquiescence\u201d to the president\u2019s authority to revoke withdrawals, and that there was \u201c[t]oo little information\u201d about Congress\u2019s inaction with respect to Section 12(a) to override the court\u2019s interpretation.\u00a0League of Conservation Voters v. Trump<\/a><\/em>, No. 3:17-cv-00101 (D. Alaska Mar. 29, 2019).<\/p>\n

Massachusetts Federal Court Let Claims Proceed Against Exxon for Failing to Consider Foreseeable Severe Weather Events at Marine Terminal<\/strong><\/p>\n

A federal court in Massachusetts declined to dismiss claims asserted by Conservation Law Foundation (CLF) against ExxonMobil Corporation (Exxon) for allegedly violating a marine terminal\u2019s Clean Water Act permit by failing to take into account the impacts of climate change. The court\u2014which issued its decision orally\u2014concluded that CLF\u2019s amended complaint included new allegations of imminent harm sufficient to allege standing and that the complaint alleged sufficient facts to state claims that Exxon violated the Clean Water Act permit by failing to consider weather events induced by climate change in its Storm Water Pollution Prevention Plan (SWPPP). Regarding standing, the court pointed to the complaint\u2019s allegations of severe weather events induced by climate change that were already occurring or would occur in the near future in Massachusetts. In considering whether CLF had stated a claim, the court held that the Clean Water Act permit required consideration of foreseeable severe weather events, including climate change-induced weather events, because the permit required Exxon both to develop a SWPPP using \u201cgood engineering practices\u201d and also to proactively address potential discharges of pollutants. The court found that U.S. Environmental Protection Agency (EPA) guidance and allegations of engineers\u2019 practices in the field were sufficient to establish a claim that \u201cgood engineering practices\u201d should include consideration of foreseeable severe weather events. The court was not persuaded by Exxon\u2019s arguments that the permit shield doctrine barred CLF\u2019s claims because EPA was aware of climate change when it issued the permit for the terminal; the court also said CLF allegations were sufficient to allege that Exxon had not taken foreseeable severe weather events into account in the SWPPP and in designing the terminal. The court also allowed CLF\u2019s Resource Conservation and Recovery Act claim to proceed, except to the extent that it was based on discharges from point sources covered by the permit, because CLF plausibly alleged an imminent threat of harm. In addition, the court dismissed two claims and allowed two non-climate change claims to proceed, as it had previously indicated it would do, and also dismissed a third claim that it deemed to be subject to the permit shield doctrine. The court set a schedule for Exxon to file a motion for a stay under the doctrine of primary jurisdiction, with oral argument to be held on May 14. The court directed Exxon to issue any subpoena for EPA testimony by April 5 to allow EPA an opportunity to move to quash the subpoena.\u00a0Conservation Law Foundation, Inc. v. ExxonMobil Corp.<\/a><\/em>, No. 1:16-cv-11950 (D. Mass. Mar. 14, 2019).<\/p>\n

Missouri Federal Court Upheld Bankruptcy Court Order Requiring California Municipalities to Dismiss Lawsuits Against Peabody<\/strong><\/p>\n

A federal district court in Missouri upheld a bankruptcy court\u2019s order requiring the San Mateo and Marin Counties and the City of Imperial Beach (the plaintiffs) to dismiss their climate change lawsuits against the reorganized Peabody Energy Corporation (Peabody). Peabody, a coal company, filed for bankruptcy in 2016 and emerged from bankruptcy in April 2017. The plaintiffs filed their lawsuit against Peabody and other defendants in July 2017. The district court found that Peabody\u2019s Chapter 11 bankruptcy plan discharged the plaintiffs\u2019 claim under California\u2019s public nuisance statute because not only equitable but also legal relief was available to the plaintiffs for an alleged breach of the statute. The district court also found that the bankruptcy court did not abuse its discretion in determining that the plaintiffs\u2019 other claims were not exempt from discharge.\u00a0County of San Mateo v. Peabody Energy Corp. (In re Peabody Energy Corp.)<\/a><\/em>, No. 4:17 CV 2886 (E.D. Mo. Mar. 29, 2019).<\/p>\n

Colorado Federal Court Said NEPA Required Consideration of Foreseeable Oil and Gas Combustion Impacts but Upheld Other Aspects of Review<\/strong><\/p>\n

The federal district court for the District of Colorado ruled that greenhouse gas emissions from combustion of oil and natural gas should have been considered in the environmental review for BLM and the U.S. Forest Service actions authorizing oil and gas development in the Bull Mountain Unit in the Colorado River basin, but rejected other challenges to the agencies\u2019 analysis of climate change-related impacts. The court found that the agencies erred in failing to consider the foreseeable indirect effects resulting from combustion of oil and gas, rejecting arguments that calculating greenhouse gas emissions from the combustion of oil and natural gas would be too speculative and that the defendants\u2019 approval of a master development plan for land owned by defendant-intervenors within the Unit would not affect the intervenors\u2019 ability to develop oil and gas resources. The court found, however, that the agencies had taken \u201can appropriately hard look\u201d at cumulative climate change impacts and that the defendants were not required to perform a cost-benefit analysis using the social cost of carbon. The court also largely upheld other aspects of the agencies\u2019 NEPA review, except for its evaluation of cumulative impacts on mule deer and elk.\u00a0Citizens for a Healthy Community v. U.S. Bureau of Land Management<\/a><\/em>, No. 1:17-cv-02519 (D. Colo. Mar. 27, 2019).<\/p>\n

D.C. Federal Court Dismissed Challenge to Critical Habitat for Climate Change-Threatened Sierra Nevada Amphibians<\/strong><\/p>\n

The federal district court for the District of Columbia ruled that the California Cattlemen\u2019s Association and two other agricultural trade groups lacked standing to challenge the designation of critical habitat for three amphibian species listed under the Endangered Species Act. All three species live in California\u2019s Sierra Nevada mountain range and are threatened by a number of factors, including changes associated with climate change. The district court found that the trade groups had not established that any of their members would suffer an injury traceable to the designation of critical habitat, as opposed to pre-existing requirements. In addition, the groups failed to show that a decision in their favor would redress the alleged injuries.\u00a0California Cattlemen\u2019s Association v. U.S. Fish & Wildlife Service<\/a><\/em>, No. 1:17-cv-01536 (D.D.C. Mar. 27, 2019).<\/p>\n

Texas Federal Court Said Fish and Wildlife Service Should Not Have Required Unavailable Data\u2014Including Climate Change Information\u2014in Delisting Petition for \u201cElusive Spider\u201d<\/strong><\/p>\n

The federal district court for the Western District of Texas found that the U.S. Fish and Wildlife Service (FWS) had acted arbitrarily and capriciously when it denied a petition to remove the bone cave harvestman\u2014\u201can elusive spider known to inhabit only Travis and Williamson Counties, Texas\u201d\u2014from the list of endangered species. The court found that the FWS violated its own regulations by requiring that the petition \u201cessentially present conclusive evidence about the harvestman\u2019s population trends\u2014more evidence than the Service admits is available or attainable.\u201d The FWS had cited the absence of population data, including the absence of \u201ctrend analysis to indicate that this species can withstand the threats associated with development or climate change over the long term,\u201d as grounds for its conclusion that the petition did not present sufficient information to demonstrate that delisting might be warranted. The court concluded that the FWS did not deny the petition based on the best available data, as required by the Endangered Species Act and the FWS regulations, because it denied the petition based on the absence of \u201cadmittedly\u00a0unavailable<\/em>\u201d evidence. The court concluded that the petition met the threshold for a finding that delisting may be warranted and remanded to the FWS for further consideration.\u00a0American Stewards of Liberty v. Department of the Interior<\/a><\/em>, No. 1:15-cv-1174 (W.D. Tex. Mar. 28, 2019).<\/p>\n

Sierra Club Found to Have Standing to Challenge Lack of Manufactured Housing Energy Efficiency Standards\u00a0<\/strong><\/p>\n

The federal district court for the District of Columbia ruled that Sierra Club had associational standing to bring a lawsuit against the Secretary of Energy to compel the promulgation of energy efficiency standards for manufactured housing. The Energy Independence and Security Act of 2007 required that such standards be established by December 19, 2011. The court found that Sierra Club had demonstrated that its members had suffered economic, health, and procedural injuries, and that there was a causal relationship between the Secretary\u2019s inaction and the alleged injuries that would be redressed by promulgation of energy efficiency standards should Sierra Club prevail. The court said it was undisputed and clear that Sierra Club satisfied both of the remaining requirements for associational standing since its members\u2019 interests were germane to the organization\u2019s purpose and the members\u2019 individual participation in the lawsuit was not required.\u00a0Sierra Club v. Perry<\/a><\/em>, No. 17-cv-2700 (D.D.C. Mar. 12, 2019).<\/p>\n

California Appellate Court Said Utilities\u2019 Distributed Resource Plans Could Consider Nonrenewable Energy Sources<\/strong><\/p>\n

The California Court of Appeal rejected Sierra Club\u2019s challenge to a determination by the California Public Utilities Commission (CPUC) allowing electric utilities to consider energy produced from nonrenewable sources in their proposed plans for the deployment of \u201cdistributed resources.\u201d The court agreed with Sierra Club that the Public Utilities Code definition of \u201cdistributed resources\u201d excluded energy produced from nonrenewable sources but found that the statute did not prohibit utilities\u2019 plans from also discussing localized natural gas-fueled energy sources.\u00a0Sierra Club v. Public Utilities Commission<\/a><\/em>, No. A152005 (Cal. Ct. App. Mar. 7, 2019).<\/p>\n

Oregon Court Upheld State\u2019s Low Carbon Fuel Standard Rules<\/strong><\/p>\n

The Oregon Court of Appeals upheld rules adopted to implement Oregon\u2019s low carbon fuel standard. The court found that the Environmental Quality Commission (EQC) evaluated required statutory factors relating to safety and\u00a0 potential adverse effects on public health, the environment, and air and water quality. The court also found that the challenge to EQC\u2019s failure in 2015 to evaluate potential effects on the generation and disposal of waste was moot because EQC had readopted and amended the rules in 2017 in a manner that appropriately addressed the waste issue. The court also ruled that purchase of credits in the low-carbon-fuel market established by the rules did not constitute payment of a tax and therefore did not violate the Oregon constitution\u2019s requirement that revenue from taxes on motor vehicle fuels be used exclusively for construction and maintenance of public roads and roadside rest areas.\u00a0Western States Petroleum Association v. Environmental Quality Commission<\/a><\/em>, Nos. 158944, A161442 (Or. Ct. App. Feb. 27, 2019).<\/p>\n

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

Oakland, San Francisco, and Amici Argued for Revival of Climate Change Nuisance Case<\/strong><\/p>\n

On March 13, 2019, Oakland and San Francisco filed their opening brief in their Ninth Circuit appeal of the dismissal of their climate change nuisance action against oil and gas companies. They argued first that the district court erred in denying their motion to remand to state court in the absence of complete preemption of their state law public nuisance claim. They argued that their claims were not governed by federal common law and that there was no other basis for removal jurisdiction. Second, the municipalities argued that the district court\u2019s dismissal of the action\u2014based on the \u201csupposedly \u2018extraterritorial\u2019 reach\u201d of the claims and potential interference with \u201cforeign policy\u201d\u2014\u201crested on a mischaracterization\u201d of their public nuisance claims as seeking to regulate or enjoin greenhouse gas emissions. The plaintiffs described their actions as seeking only an equitable abatement remedy to mitigate local harms caused by climate change based on the defendants\u2019 wrongful promotion of their fossil fuel products \u201cwhile intentionally failing to disclose material information and\/or affirmatively making misleading statements about the inevitable, devastating impacts on coastal communities it knew would result from the expanded use of \u2026 otherwise lawful products.\u201d The municipalities asserted that their state law nuisance claims \u201ceasily survive\u201d a federal preemption defense; that the presumption against extraterritoriality did not apply (or would be overcome if it did apply); and that the claims could be adjudicated without any foreign policy concerns. Finally, the municipalities contended that the court erred in declining to exercise specific personal jurisdiction over four out-of-state companies.<\/p>\n

On March 20, 2019, 10 amicus briefs were filed in support of the municipalities:<\/p>\n