{"id":6548,"date":"2019-10-07T16:11:06","date_gmt":"2019-10-07T21:11:06","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=6548"},"modified":"2019-10-07T16:11:06","modified_gmt":"2019-10-07T21:11:06","slug":"october-2019-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2019\/10\/07\/october-2019-updates-to-the-climate-case-charts\/","title":{"rendered":"October 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<\/strong>\u00a0CLIMATE\u00a0CASE\u00a0CHART<\/a>\u00a0SINCE UPDATE # 126<\/strong><\/p>\n

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

Fourth Circuit Declined to Stay Remand Order in Baltimore\u2019s Climate Case Against Fossil Fuel Companies; Companies Sought Stay from Supreme Court<\/strong><\/p>\n

On October 1, 2019, the Fourth Circuit Court of Appeals denied fossil fuel companies\u2019 motion for a stay pending their appeal of the district court order remanding Baltimore\u2019s climate change lawsuit against the companies to state court. On the same day, the companies filed an application for a stay in the U.S. Supreme Court. On October 2, the district court granted the companies\u2019 motion to temporarily extend its stay of the remand order until the Supreme Court resolves the application. (The district court previously extended the stay of the remand order pending the Fourth Circuit\u2019s resolution of the companies\u2019 stay motion.) The district court said Baltimore could seek to rescind the temporary extension \u201cas improvidently granted\u201d by filing a motion by October 7. On September 30, the Fourth Circuit tentatively calendared oral argument on the companies\u2019 appeal for the December 10\u201312 argument session.\u00a0Mayor & City Council of Baltimore v. BP p.l.c.<\/a><\/em>, No. 19-1644 (4th Cir. Oct. 1, 2019).<\/p>\n


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

Rhode Island Federal Court Denied Motion to Stay Remand Order in Rhode Island\u2019s Climate Change Case<\/strong><\/p>\n

On September 11, 2019, the federal district court for the District of Rhode Island denied oil and gas companies\u2019 motion for a stay of the court\u2019s July 22 decision remanding the State of Rhode Island\u2019s lawsuit seeking to hold the companies liable for climate change impacts. Pursuant to a consent order, the remand order will not be entered until October 10, 2019. On September 13, the companies filed an expedited motion for stay pending appeal in the First Circuit. Briefing on the stay motion was completed on September 26.\u00a0Rhode Island v. Chevron Corp.<\/a><\/em>, No. 1:18-cv-00395 (D.R.I. Sept. 11, 2019).<\/p>\n

Colorado Federal Court Remanded Local Governments\u2019 Climate Case to State Court<\/strong><\/p>\n

On September 5, 2019, a federal district court in Colorado ruled that oil and gas companies had not met their burden of showing that federal jurisdiction existed for climate change-related claims asserted by Boulder County, San Miguel County, and the City of Boulder. Citing the well-pleaded complaint rule, the court concluded that removal was not appropriate based on federal question jurisdiction because the plaintiffs\u2019 claims did not on their face raise the federal issues of energy, the environment, and national security. The court said the defendants\u2019 argument that the plaintiffs\u2019 state law claims were governed by federal common law appeared to be a matter of ordinary preemption, which would not provide a basis for federal jurisdiction. The district court also found that the defendants did not establish that the plaintiffs\u2019 claims necessarily depended on the resolution of a substantial question of federal law. In addition, the court rejected the contention that the Clean Air Act or foreign affairs doctrine completely preempted the plaintiffs\u2019 claims and also indicated that federal common law would not provide a basis for complete preemption. The court also was not persuaded that federal jurisdiction existed based on federal enclave jurisdiction, federal officer jurisdiction, jurisdiction under the Outer Continental Shelf Lands Act, or jurisdiction based on the claims\u2019 relationship to bankruptcy proceedings.<\/p>\n

On September 6, the court granted the defendants\u2019 emergency motion for a temporary stay pending the court\u2019s ruling on the defendants\u2019 motion for a stay pending appeal. After the defendants filed an appeal of the remand order in the Tenth Circuit, the plaintiffs filed a motion to dismiss all aspects of the appeal except for the defendants\u2019 appeal of the district court\u2019s determination that there was no federal officer removal jurisdiction.\u00a0Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.<\/a><\/em>, No. 1:18-cv-01672 (D. Colo. Sept. 5, 2019), No. 19-1330 (10th Cir.,\u00a0motion for partial dismissal<\/a>\u00a0filed Sept. 20, 2019).<\/p>\n

D.C. Circuit Dismissed Clean Power Plan Challenges<\/strong><\/p>\n

The D.C. Circuit Court of Appeals granted motions seeking to dismiss as moot the proceedings challenging the Obama administration\u2019s Clean Power Plan, which established emission guidelines for greenhouse gases from existing power plants. The court dismissed the proceedings 11 days after the effective date of the U.S. Environmental Protection Agency (EPA) rule repealing the Clean Power Plan and finalizing the final Affordable Clean Energy rule in its place.\u00a0West Virginia v. EPA<\/em><\/a>, Nos. 15-1363 et al. (D.C. Cir. Sept. 17, 2019).<\/p>\n

D.C. Circuit Ruled that EPA Must Consider Endangered Species in Setting Renewable Fuel Standards<\/strong><\/p>\n

The D.C. Circuit Court of Appeals sent the 2018 Renewable Fuel Standards rule back to EPA after finding that EPA failed to comply with requirements of the Endangered Species Act. The court said EPA should have consulted with the U.S. Fish and Wildlife Service or National Marine Fisheries Service and made a finding as to whether the Renewable Fuel Standard would affect listed species. The court upheld other aspects of the 2018 standards, including the applicable volumes, restrictions on the use of Renewable Identification Numbers for fuel that is exported, and EPA\u2019s accounting for small refinery exemptions. EPA remanded the standards but did not vacate the rule.\u00a0American Fuel & Petrochemical Manufacturers v. EPA<\/a><\/em>, No. 17-1258 (D.C. Cir. Sept. 6, 2019).<\/p>\n

District Court Rejected Climate Change Arguments in Challenge to Listing Determination for Rio Grande Cutthroat Trout<\/strong><\/p>\n

The federal district court for the District of Colorado rejected arguments that the U.S. Fish and Wildlife Service (FWS) erred in its analyses of climate change\u2019s impact on the Rio Grande cutthroat trout when it determined in 2014 that the species no longer warranted listing under the Endangered Species Act. The FWS concluded in 2008 that the trout should be listed but reversed course in 2014 and concluded that listing was no longer warranted. The court was not persuaded by the plaintiffs\u2019 contention that the FWS had concluded that conservation projects would outpace climate change effects on the trout or by the argument that the FWS erred by abandoning a finding in its 2008 determination that climate change constituted a \u201csevere\u201d threat to the trout that exacerbates other threats. The court did, however, find that the FWS failed to explain different methodologies it used in 2008 and 2014 to calculate the number of healthy populations of the trout. Because the court found that the FWS had acted arbitrarily and capriciously in this respect, the court vacated the 2014 determination in part and remanded for the FWS to explain its rationale for determining the number of healthy populations.\u00a0Center for Biological Diversity v. Jewell<\/a><\/em>, No. 16-CV-1932 (D. Colo. Sept. 26, 2019).<\/p>\n

South Dakota Federal Court Granted Preliminary Injunction Against Enforcement of Laws Targeting Pipeline Protesters<\/strong><\/p>\n

The federal district court for the District of South Dakota temporarily enjoined enforcement of provisions of a riot boosting statute enacted in South Dakota in 2019 in response to anticipated protests of the Keystone XL pipeline. The court also temporarily enjoined two felony riot statutes because they went \u201cfar beyond\u201d the State\u2019s \u201cappropriate interest\u201d in criminalizing participation in a riot with acts of force or violence. The court said the laws\u2019 provision for criminal or tort liability for advising, encouraging, or soliciting persons participating in a riot to acts of force or violence was overbroad and vague. In a separate order, the court dismissed a county sheriff from the action because the court found the plaintiffs lacked standing to bring claims against him.\u00a0Dakota Rural Action v. Noem<\/em>, No. 5:19-cv-05026 (D.S.D.\u00a0preliminary injunction order<\/a>\u00a0and\u00a0standing order<\/a>\u00a0Sept. 18, 2019).<\/p>\n

Federal Court Barred Timber Management in Arizona National Forests Pending New Jeopardy Analysis for Mexican Spotted Owl but Upheld Climate Change Analysis<\/strong><\/p>\n

The federal district court for the District of Arizona enjoined the U.S. Forest Service (USFS) from proceeding with timber management actions in 11 national forests in Arizona\u00a0 and directed the FWS and the USFS to reinitiate a formal Section 7(a)(2) consultation pursuant to the Endangered Species Act to reassess the jeopardy analysis and the effect of Forest Plans on recovery of the threatened Mexican spotted owl. The court found that a 2012 no-jeopardy determination was unsupported, arbitrary, and capricious because it did not account for the owl\u2019s recovery. The court found, however, that the plaintiff failed to show that the defendants had not considered climate change effects on the Mexican spotted owl and therefore held that the FWS\u2019s analysis of climate change was neither arbitrary nor capricious.\u00a0WildEarth Guardians v. U.S. Fish & Wildlife Service<\/a><\/em>, No. 4:13-cv-00151 (D. Ariz. Sept. 12, 2019).<\/p>\n

Minnesota Supreme Court Declined to Review Claims Regarding Environmental Review for Oil Pipeline<\/strong><\/p>\n

The Minnesota Supreme Court\u00a0denied<\/a>\u00a0petitions for further review of an appellate court decision finding all but one aspect of the environmental review for the Enbridge Line 3 oil pipeline project to be adequate. (The appellate court said the Minnesota Public Utilities Commission gave inadequate attention to the potential impact of an oil spill in the Lake Superior watershed.) The StarTribune\u00a0reported<\/a>\u00a0that the non-profit group Honor the Earth and the Mille Lacs Band of Ojibwe filed one petition, and Friends of the Headwaters filed another petition, each arguing that there were other shortcomings in the Public Utilities Commission\u2019s review.\u00a0In re Enbridge Energy, LP<\/a><\/em>, No. __ (Minn. Sept. 17, 2019).<\/p>\n

Washington High Court Declined to Review Decision Giving Pipeline Protester Right to Present Necessity Defense<\/strong><\/p>\n

The Washington Supreme Court denied a petition to review an intermediate appellate court\u2019s determination that a pipeline protester should be allowed to present a climate change necessity defense. The Climate Defense Project, which represents the defendant,\u00a0said<\/a>\u00a0the Supreme Court decision made Washington the first state to affirmatively recognize the right of a climate activist to offer the necessity defense at trial.\u00a0State v. Ward<\/a><\/em>, No. 97182-0 (Wash. Sept. 4, 2019).<\/p>\n

California Appellate Court Again Directed Dismissal of Lawsuits Raising Concerns About Climate Change Impacts on Oroville Dam Operations<\/strong><\/p>\n

The California Court of Appeal again concluded that the Federal Power Act (FPA) preempted application of state environmental laws to a relicensing of the Oroville Dam. The appellate court therefore ruled that state courts were without jurisdiction to consider claims that a California Environmental Quality Act review should have considered the impacts of climate change on continued operation of the dam. The court previously\u00a0reached<\/a>\u00a0the same conclusion in December 2018, but the California Supreme Court directed it to reconsider the case in light of the Supreme Court\u2019s 2017 decision in\u00a0Friends of the Eel River v. North Coast Railroad Authority<\/em><\/a>, which concerned the preemptive effect of the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA). In its 2019 opinion, the Court of Appeal wrote that ICCTA was \u201cmaterially distinguishable\u201d from the FPA because unlike ICCTA, the FPA is not \u201cderegulatory\u201d in nature. The Court of Appeal also said the plaintiffs incorrectly construed the project subject to environmental review as the \u201cdam and facilities as built\u201d but that the \u201ccorrect view\u201d was that the project subject to review was a project \u201cto further mitigate the loss of habitat caused by construction of the dam in 1967.\u201d The court said this \u201ccorrect view of the project\u201d involved only questions of federal law and concluded that the plaintiffs therefore failed to tender an issue over which the court had jurisdiction.\u00a0County of Butte v. Department of Water Resources<\/a><\/em>, No. C071785 (Cal. Ct. App. Sept. 5, 2019).<\/p>\n

Maryland Appellate Court Said Residents Lacked Standing to Challenge Update to Master Plan<\/strong><\/p>\n

The Maryland Court of Special Appeals ruled that a group of residents did not have standing to bring claims challenging a District Council\u2019s approval of an update to a master plan for a portion of Montgomery County. The residents alleged, among other things, that approval of the plan was illegal and ultra vires because the plan\u2019s potential impact on greenhouse gas emissions had not been assessed, as required by County law. The court concluded that \u201cproperty owner standing\u201d was not a basis to challenge the plan, which was a \u201ccomprehensive zoning\u201d action, and that the residents failed to plead facts supporting taxpayer standing.\u00a0Bennett v. Montgomery County<\/a><\/em>, No. 302 (Md. Ct. Spec. App. Sept. 3, 2019).<\/p>\n

New York Court Dismissed Challenge to Local Zoning Law that Restricted Development of Solar Facilities<\/strong><\/p>\n

A New York trial court dismissed a lawsuit challenging a town zoning ordinance that restricted utility-scale solar collection systems to commercial and industrial zones. As a threshold matter, the court found that property owners who were concerned about fossil fuel consumption and sought to imminently use their land for renewable energy generation had standing under the New York State Environmental Quality Review Act (SEQRA), even though the property owners also asserted an economic concern regarding the long-term economic viability of their properties that would not on its own constitute a cognizable injury under SEQRA. The court also ruled that the property owners had standing to challenge the zoning ordinance and that an unincorporated citizens association formed to promote a proposed solar project had organizational standing even if the association\u2019s purpose benefited its members economically. On the merits, the court found that the respondents had taken the hard look required by SEQRA, rejecting arguments that they failed to consider (1) the New York State Energy Plan and its renewable energy target; (2) the pending solar project; (3) the impact on fossil fuel emissions; and (4) global climate change. The court also deferred to the town\u2019s authority in land use matters and found that the zoning ordinance was a valid exercise of local police power. The court noted that New York State had recognized by statute that climate change was adversely affecting New York and that development of solar and other renewable energy was critical to the State\u2019s efforts to combat climate change. The court concluded, however, that local governments could consider the negative impacts of solar energy in their land use decision-making as well as other interests such as protecting agricultural land.\u00a0Friends of Flint Mine Solar v. Town Board of Coxsackie<\/a><\/em>, No. 19-0216 (N.Y. Sup. Ct. Sept. 13, 2019).<\/p>\n

D.C. Court Dismissed Counterclaims in Climate Scientist\u2019s Defamation Lawsuit<\/strong><\/p>\n

The D.C. Superior Court dismissed counterclaims brought by an individual writer against the climate scientist Michael Mann in Mann\u2019s defamation lawsuit against National Review, the Competitive Enterprise Institute, and two individuals. The court said the writer had already availed himself of the remedy offered by D.C.\u2019s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute\u00ad\u2014i.e., a special motion to dismiss with lower burden of proof, a stay of discovery when the motion is pending, a special motion to quash discovery requests, and the recovery of attorneys fees. The court said the writer, having lost the special motion to dismiss, could not \u201cseek the same remedy in the guise of a counterclaim\u201d; the court concluded that the \u201cAnti-SLAPP statute does not create an implied right to affirmatively assert a claim against the plaintiff.\u201d The court also found that Mann\u2019s lawsuit did not constitute state action and therefore dismissed the writer\u2019s constitutional tort claim. In addition, the court found that the writer failed to allege elements of an abuse of process or a malicious prosecution claim. The court also declined to \u201ccreate a new tort named abusive litigation.\u201d\u00a0Mann v. National Review, Inc.<\/a><\/em>, No. 2012 CA 008263 B (D.C. Super. Ct. Aug. 29, 2019).<\/p>\n

Massachusetts Court Upheld State Approval of Coastal Landfill\u2019s Expansion<\/strong><\/p>\n

On July 26, 2019, a Massachusetts state court upheld a Massachusetts Department of Environmental Protection (MassDEP) decision authorizing expansion of a landfill in the Town of Saugus. Conservation Law Foundation (CLF) and the Town of Saugus had appealed the MassDEP\u2019s decision. CLF\u2019s allegations included that the landfill\u2019s coastal location \u201cmakes it extremely vulnerable to climate change impacts, including sea level rise and damaging storm surge, creating a significant risk of erosion and of pollution from the Landfill washing into the surrounding rivers and coastal wetlands.\u201d News\u00a0coverage<\/a>\u00a0of the court\u2019s decision affirming MassDEP\u2019s decision did not discuss the climate change-related allegations. The Board of Health filed a notice of appeal on August 26, 2019.\u00a0Conservation Law Foundation v. Massachusetts Department of Environmental Protection<\/a><\/em>, No. 1884CV01431 (Mass. Super. Ct. July 26, 2019);\u00a0Town of Saugus Board of Health v. Massachusetts Department of Environmental Protection<\/a><\/em>, No. 1884CV01419 (Mass. Super. Ct. July 26, 2019).<\/p>\n

Board of Land Appeals Set Aside BLM Vegetation Management Plan in Southern Utah but Rejected Challengers\u2019 Climate Change Arguments<\/strong><\/p>\n

The Interior Board of Land Appeals (IBLA) rejected claims that the U.S. Bureau of Land Management (BLM) failed to take a hard look at greenhouse gas emissions and climate change impacts of a vegetation management project on 54,018 acres northeast of Kanab, Utah. But IBLA set aside approval of the project because it found both that BLM failed to consider the project\u2019s cumulative effects on migratory birds and that BLM approved the use of non-native seed in ways that were inconsistent with the applicable land use plan. Regarding greenhouse gas emissions and climate change, BLM concluded that greenhouse gas emission factors were not sufficiently refined for quantifying emissions at the project level without site-specific measurements and data, which meant BLM could neither quantify nor assess specific climate change impacts due to project emissions that were below EPA\u2019s greenhouse gas reporting threshold of 25,000 tons per year. IBLA said it was satisfied with BLM\u2019s explanation for why a detailed analysis or quantification of emissions and climate change impacts would not be feasible or useful. IBLA also said the quantification of emissions for a project in Oregon did not necessarily mean BLM could quantify similar emissions from this project.\u00a0In re Southern Utah Wilderness Alliance<\/a><\/em>, No. IBLA 2019 94 (IBLA Sept. 16, 2019).<\/p>\n

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

Parties Challenging Clean Power Plan Repeal Opposed Motions to Expedite; Motion Filed for Abeyance<\/strong><\/p>\n

Petitioners challenging EPA\u2019s repeal and replacement of the Clean Power Plan opposed EPA\u2019s and aligned intervenors\u2019 motions to expedite the case. The petitioners argued that the motions did not satisfy the standard described in the D.C. Circuit\u2019s Handbook of Practice and Internal Procedures for expediting cases, which states that the court \u201cgrants expedited consideration very rarely\u201d and that the reasons \u201cmust be strongly compelling.\u201d The petitioners also argued that granting the motion would prejudice the petitioners\u2019 interests. Later in September, Environmental and Public Health Petitioners and State and Municipal Petitioners filed their own motion requesting that the court hold the proceedings in abeyance pending EPA final action on petitions for reconsideration.\u00a0American Lung Association v. EPA<\/a><\/em>, Nos. 19-1140 et al. (D.C. Cir.).<\/p>\n

States Filed Lawsuit Challenging Trump Administration\u2019s Changes to the Endangered Species Act Regulations<\/strong><\/p>\n

Seventeen states, the District of Columbia, and New York City filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the regulations implementing the Endangered Species Act (ESA). The plaintiffs asserted that the amendments violated the ESA\u2019s plain language and purpose, as well as \u201cits legislative history, numerous binding judicial precedents interpreting the ESA, and its precautionary approach to protecting imperiled species and critical habitat,\u201d including by limiting designation of unoccupied critical habitat, \u201cparticularly where climate change poses a threat to species habitat.\u201d The plaintiffs also contended that the defendants failed to provide reasoned analysis for the changes and overlooked important issues, including the need to address threats from climate change. The plaintiffs asserted claims under the ESA, the Administrative Procedure Act, and the National Environmental Policy Act. The plaintiffs indicated that their case was related to the previously filed\u00a0Center for Biological Diversity v. Bernhardt<\/em><\/a>.\u00a0California v. Bernhardt<\/a><\/em>, No. 3:19-cv-06013 (N.D. Cal., filed Sept. 25, 2019).<\/p>\n

Citing Resiliency and Sea Level Rise Concerns, Environmental Groups and California Challenged Negative Jurisdictional Determination for Redwood City Salt Ponds<\/strong><\/p>\n

Four regional environmental organizations and the State of California filed lawsuits in federal district court for the Northern District of California challenging the EPA\u2019s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act. The organizations\u2019 complaint alleged that the Salt Ponds consisted of approximately 1,365 acres that are \u201cone of the last remaining undeveloped areas along the San Francisco Bay\u2019s shorelines\u201d and that the protection of such areas \u201cwill help the surrounding area be resilient to climate impacts.\u201d The complaint asserted that EPA\u2019s negative jurisdiction concluding that the Salt Ponds are not waters of the United States ignored numerous factors and was not consistent with the Clean Water Act and that it would lead to impacts on water quality and exacerbate the consequences of sea level rise. California alleged that the negative jurisdictional determination would make it more likely that the Salt Ponds would be developed, impairing the State\u2019s ability to control and mitigate sea level rise impacts in San Francisco Bay. The State asserted that the determination violated the Administrative Procedure Act.\u00a0San Francisco Baykeeper v. EPA<\/a><\/em>, No. 3:19-cv-05941 (N.D. Cal., filed Sept. 24, 2019);\u00a0California v. Wheeler<\/a><\/em>, No. 3:19-cv-05943 (N.D. Cal., filed Sept. 24, 2019).<\/p>\n

Lawsuit Said Determination that Island-Dwelling Lizard Was Not Endangered or Threatened Was Unlawful<\/strong><\/p>\n

The Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the Southern District of Florida claiming that the U.S. Fish and Wildlife Service\u2019s decision not to list the Florida Keys mole skink under the ESA was unlawful. The complaint alleged that the skink is \u201ca severely imperiled, island-dwelling lizard that is steadily losing what remains of its limited habitat to urban development and rising seas.\u201d CBD said the FWS failed to provide a rational explanation for finding that the skink was not endangered or threatened even though the agency\u2019s projections indicated that sea level rise would inundate half of the skink\u2019s habitat by 2060 and nearly all of it by 2100. The complaint also alleged that the FWS \u201cignored or dismissed myriad cumulative impacts of climate change,\u201d including increased storm surge and changes in precipitation and temperature. The complaint asserted that FWS failed to use best available scientific data in violation of the ESA and unlawfully limited the \u201cforeseeable future\u201d to 2060 when the FWS had projections through 2100. In addition, the complaint asserted that the FWS failed to consider the ESA\u2019s five listing factors, failed to lawfully analyze whether the skink was threatened or endangered \u201cin a significant portion of its range,\u201d failed to apply the definitions of \u201cendangered\u201d and \u201cthreatened,\u201d and acted arbitrarily and capriciously. On September 27, the parties agreed to the dismissal of the lawsuit without prejudice in contemplation of the filing of an amended complaint in a related Freedom of Information Act\u00a0case<\/a>\u00a0already pending before the court.\u00a0Center for Biological Diversity v. Bernhardt<\/em><\/a>, No. 2:19-cv-14353 (S.D. Fla., filed Sept. 23, 2019).<\/p>\n

States and Cities Challenged Rule Preempting<\/strong>\u00a0State Regulation of Vehicle Carbon Dioxide Emissions<\/strong><\/p>\n

On September 19,\u00a0EPA Administrator Andrew Wheeler and National Highway Traffic Safety Administration (NHTSA) Acting Administrator James Owenssigned a final rule in which EPA withdrew the waiver that allowed California to promulgate greenhouse gas standards for vehicles and establish a zero-emission vehicle (ZEV) mandate. The rule also finalized text in NHTSA regulations explicitly preempting state regulation of carbon dioxide emissions from vehicles. EPA and NHTSA described these actions as \u201clegal matters that are independent of the technical details\u201d of proposed federal greenhouse gas and Corporate Average Fuel Economy standards for light-duty vehicles that EPA and NHTSA have not yet finalized. EPA and NHTSA said the final waiver and preemption actions were necessary to ensure \u201cthe existence of one Federal program for light vehicles.\u201d On September 20, California, 23 other states, the District of Columbia, New York City, and Los Angeles filed a lawsuit in federal district court in the District of Columbia against the Secretary of Transportation, Owens, the U.S. Department of Transportation, and NHTSA. The states asserted that the preemption regulation exceeded NHTSA\u2019s authority, that the regulation contravened the Energy Policy and Conservation Act of 1975 and the Clean Air Act, and that NHTSA failed to consider the regulation\u2019s environmental impacts as required by the National Environmental Policy Act. On September 27, nine nonprofit organizations filed a similar lawsuit challenging the NHTSA regulation.\u00a0California v. Chao<\/em><\/a>, No. 1:19-cv-02826 (D.D.C., filed Sept. 20, 2019);\u00a0Environmental Defense Fund v. Chao<\/a><\/em>, No. 1:19-cv-02907 (D.D.C., filed Sept. 27, 2019).<\/p>\n

Conservation Groups and Climate Scientist Challenged Logging and Biomass Plant in Northern California<\/strong><\/p>\n

Earth Island Institute,\u00a0Sequoia Forestkeeper, Greenpeace, and climate scientist James Hansenfiled a lawsuit in the federal district court for the Northern District of California challenging federal and state authorizations for a logging project and biomass power plant on public forestland burned during the Rim Fire in 2013. The complaint alleged that the\u00a0U.S. Department of Housing and Urban Development (HUD) and the California Department of Housing and Community Development (HCD)improperly used disaster relief funds for logging activities and that HUD, HCD, and U.S. Forest Service violated the National Environmental Policy Act. The plaintiffs contended that environmental impact statements (EISs) from 2014 and 2016 should have been supplemented with new information about the forest\u2019s natural regeneration and that the biomass plant should have been considered in the same EISs as the logging project. The complaint\u2019s allegations included that the EISs failed to analyze the environmental impacts of logging for biomass energy production, including increased greenhouse gas emissions, and that the climate and greenhouse gas effects of logging would be different than what was studied in the EISs due to differences in logging \u201cpost-fire large, dead trees\u201d for lumber and removing and burning \u201ctrees of all sizes, both live and dead, and including the young, naturally-regenerating forest, for biomass energy production.\u201d The plaintiffs later filed a motion for a temporary restraining order or preliminary injunction. The federal defendants filed to dismiss the case for improper venue or to transfer the case to the Eastern District of California.\u00a0Earth Island Institute v. Nash<\/em><\/a>, No. 3:19-cv-05792 (N.D. Cal., filed Sept. 16, 2019).<\/p>\n

FOIA Lawsuit Filed Seeking Documents Regarding Dismissal of NOAA Acting Administrator<\/strong><\/p>\n

A non-profit organization filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia seeking to compel the National Oceanic and Atmospheric Administration (NOAA) to respond to a request for documents related to the removal of retired\u00a0U.S. Navy Rear Admiral Tim Gallaudet\u00a0<\/span>as acting administrator of NOAA. The complaint alleged that Gallaudet \u201chad earned plaudits for advancing the agency\u2019s priorities in ocean and atmospheric sciences without succumbing to political interference with climate research.\u201d\u00a0Democracy Forward Foundation v. National Oceanic & Atmospheric Administration<\/em><\/a>, No. 1:19-cv-02751 (D.D.C., filed Sept. 16, 2019).<\/p>\n

Conservation Groups Challenged Environmental Review for 130 Oil and Gas Lease Sales in Utah<\/strong><\/p>\n

Three conservation groups challenged 130 oil and gas lease sales covering 175,357 acres of public lands in Utah for failing to consider indirect and cumulative greenhouse gas emissions and climate change impacts. The complaint asserted that the National Environmental Policy Act (NEPA) reviews for the lease sales, which were conducted between 2014 and 2018, considered no indirect greenhouse gas emissions other than carbon dioxide emissions from combustion and failed to analyze downstream emissions for non-carbon dioxide emissions and emissions that occurred after drilling but prior to combustion. The complaint also alleged that the NEPA reviews did not quantify cumulative emissions of other past, present, or reasonably foreseeable oil and gas lease sales but instead provided \u201conly broad and generic statements regarding the nature of the climate crisis.\u201d\u00a0Living Rivers v. Hoffman<\/em><\/a>, No. 4:19-cv-00074 (D. Utah, filed Sept. 12, 2019).<\/p>\n

Lawsuit Filed Challenging 2015 Determination that Listing Sonoran Desert Tortoise as Endangered or Threatened Was Not Warranted<\/strong><\/p>\n

WildEarth Guardians and Western Watersheds Project\u00a0challenged the U.S. Fish and Wildlife\u2019s October 2015 decision that listing of the Sonoran desert tortoise under the Endangered Species Act was \u201cnot warranted.\u201d The complaint included a number of climate change-related allegations. It alleged that the FWS failed to consider and adequately apply the five threat factors for determining whether a species is endangered and threatened, including by failing \u201cto consider and analyze how climate change is already impacting and will continue to directly, indirectly, and cumulatively impact the Sonoran desert tortoise and its habitat now and into the foreseeable future.\u201d In addition, the complaint alleged that the FWS \u201carbitrarily dismissed the best available science on climate change impacts,\u201d which predicted increased severity of droughts in the tortoises\u2019 range. The plaintiffs also contended that in the analysis of whether the tortoise was in danger of extinction in a \u201csignificant portion of its range,\u201d the FWS did not consider significance variables and factors such as climate change that, unlike the threat of urban development, might not have geographic concentrations.\u00a0WildEarth Guardians v. Bernhardt<\/em><\/a>, No. 4:19-cv-00441 (D. Ariz. Sept. 5, 2019).<\/p>\n

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

British Court Found UK Fracking Policy Unlawfully Failed to Account for Climate Impacts of Shale Gas<\/strong><\/p>\n

Claimant, on behalf of the advocacy group Talk Fracking, successfully challenged a section of the UK\u2019s National Planning Policy Framework (NPPF) that promoted fracking. Claimant alleged that the section, known as paragraph 209(a), was developed without accounting for recent evidence of shale gas development\u2019s contribution to climate change. The Administrative Court of the Queen\u2019s Bench Division of the High Court of Justice quashed paragraph 209(a).<\/p>\n

Paragraph 209(a) instructed minerals planning authorities to recognize the benefits of developing oil and gas, including unconventional hydrocarbons, and to implement policies to facilitate their exploration and extraction. The court concluded that the Secretary of State for Housing and Communities and Local Government acted unlawfully by failing to undertake a proper public consultation or to account for recent evidence of the climate impacts of shale gas development. The claimant also argued that paragraph 209(a) triggered the need to conduct a Strategic Environmental Assessment and ran afoul of the UK\u2019s commitment to reduce greenhouse gas emissions under the Climate Change Act of 2008, claims that the court rejected. On May 23, 2019, the Secretary issued a statement to remove paragraph 209(a), and the UK Government updated the NPPF on June 19.\u00a0Stephenson v. Secretary of State<\/em><\/a>, 2019 EWHC 519 (Admin) (High Court of Justice, Queen\u2019s Bench Division).<\/p>\n

Children Allege Delayed Climate Action Violates Rights Under UN Convention on the Rights of the Child<\/strong><\/p>\n

Sixteen children filed a petition alleging that Argentina, Brazil, France, Germany, and Turkey violated their rights under the United Nations Convention on the Rights of the Child (the Convention) by making insufficient cuts to greenhouse gases and failing to encourage the world\u2019s biggest emitters to curb carbon pollution. The children ask the United Nations Committee on the Rights of the Child (the Committee) to declare that respondents violated their rights by perpetuating climate change, and to recommend actions for respondents to address climate change mitigation and adaptation.<\/p>\n

Petitioners claim that climate change has led to violations of their rights under the Convention, including the rights to life, health, and the prioritization of the child\u2019s best interest, as well as the cultural rights of petitioners from indigenous communities. For example,\u00a0Deborah Adegbile of Nigeria asserts that she has been repeatedly hospitalized for asthma attacks triggered by rising temperatures and exacerbated smog. Ellen-Anne of Sweden alleges that climate change imperils her indigenous community\u2019s traditional reliance on reindeer husbandry and herding.\u00a0David Ackley III, Litokne Kabua, and Ranton Anjain of the Marshall Islands similarly claim that sea-level rise poses an existential threat to their culture.<\/p>\n

Each respondent has ratified the Convention. All five have signed the Paris Agreement but, according to petitioners, none have made or kept commitments that align with keeping temperature rise under 2 degrees Celsius. The petition asserts that respondents have four related obligations under the Convention: (i) to prevent foreseeable domestic and extraterritorial human rights violations resulting from climate change; (ii) to cooperate internationally in the face of the global climate emergency; (iii) to apply the precautionary principle to prevent deadly consequences even in the face of uncertainty; and (iv) to ensure intergenerational justice for children and posterity. Petitioners allege that respondents have failed to prevent foreseeable human rights harms caused by climate change by making insufficient reductions to greenhouse gas emissions. Petitioners further claim that as members of the G20, respondents have failed to use available legal, diplomatic, and economic tools to protect children from the greenhouse gas pollution of major emitters including China, the United Stations, the European Union and India.<\/p>\n

The children request that the Committee make findings including that climate change is a children\u2019s rights crisis, and that each respondent has caused and is perpetuating climate change by knowingly acting in disregard of available scientific evidence. They also ask the Committee to recommend that the respondents review and, where necessary, amend their laws and policies to ensure that mitigation and adaptation efforts are accelerated; initiate cooperative international action to establish binding and enforceable climate measures; and ensure children\u2019s right to be heard in all efforts to mitigate or adapt to the climate crisis. The Committee must determine if the petition is actionable before making findings or recommendations.\u00a0Sacchi et al. v. Argentina et al.<\/em><\/a>\u00a0(UN Committee on the Rights of the Child).<\/p>\n

Irish Court Rejected Claims that National Mitigation Plan Violated Climate Statute, Constitution, and Human Rights Obligations<\/strong><\/p>\n

An advocacy group, Friends of the Irish Environment (FIE), filed suit in the High Court, arguing that the Irish government\u2019s approval of the National Mitigation Plan in 2017 violated Ireland\u2019s Climate Action and Low Carbon Development Act 2015 (the Act), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life. FIE alleged that the National Mitigation Plan (the Plan), which seeks to transition to a low-carbon economy by 2050, is inconsistent with the Act and Ireland\u2019s human rights commitments because it is not designed to achieve substantial short-term emissions reductions. The case was argued before the High Court on January 22, 2019. FIE asked the High Court to quash the government\u2019s decision to approve the Plan and, if appropriate, order that a new plan be written.<\/p>\n

On September 19, 2019, the Court ruled for the government. The Court rejected FEI\u2019s claim that the Plan was invalid for failing to achieve substantial short-term emissions reductions, concluding that the Act does not require particular intermediate targets. The Court recognized that \u201cthere is now limited room, or . . . carbon budget, for greenhouse gas emissions\u201d given the \u201csafe temperature rise target\u201d of 1.5 degrees Celsius. The Court reasoned, however, that the government appropriately exercised policy making discretion afforded by the Act, explaining that the current Plan is only an initial step in achieving targets for transitioning to a low-carbon, climate resilient, and environmentally sustainable economy by 2050, and will be subject to review and revision. The Court concluded that FEI had standing to bring rights-based claims, but rejected the argument that the government had violated Ireland\u2019s Constitution and commitments under the European Convention on Human Rights because the Plan is \u201cbut one, albeit extremely important, piece of the jigsaw.\u201d\u00a0Friends of the Irish Environment v. Ireland<\/em><\/a>, 2017 No. 793 JR (High Court of Ireland).<\/p>\n

French Climate Activists Were Acquitted of Theft, Successfully Claiming Civil Disobedience Was Necessary to Push for Stronger Climate Action<\/strong><\/p>\n

A criminal court in Lyon found that climate activists had stolen portraits of the French President,\u00a0Emmanuel Macron, out of necessity to call attention to France\u2019s failure to meet its climate targets.<\/p>\n

The defendants were charged with fraudulently removing the portraits from a town hall in Lyon in February 2019. The prosecutor sought to impose a fine of 500 euros on each defendant. The court heard testimony from a former government minister that France has not complied with the Paris Agreement due to a lack of political will, and that only the president can order the action required by the present situation. An ecologist also testified about the necessity for rapid change in order to limit temperature rise. The defendants argued that the use of legal channels and warnings from scientific experts had not provided sufficient leverage, and they believed that acts of non-violent civil disobedience were required to raise awareness of the need for policy change.<\/p>\n

The court agreed, finding that climate change seriously affects the future of humanity by provoking natural disasters, leading to violent conflicts, and threatening flora and fauna; and that although France is committed to certain measures to address climate change, the defense\u2019s submissions showed that the government\u2019s objectives will not be achieved. The court concluded that, under these circumstances, citizens\u2019 means of expression could not be limited to voting, and that the defendants\u2019 theft of the portrait was a necessary substitute for impossible dialogue between the government and the people. The court accordingly acquitted both defendants. A growing number of presidential portraits have been removed in France as part of a climate movement called\u00a0\u201cTake Down Macron\u201d<\/a>. \u00a0State v. Delahalle & Goinvic<\/em><\/a>\u00a0(Criminal Court of Lyon).<\/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\u00a0CASE\u00a0CHART\u00a0SINCE UPDATE # 126 FEATURED CASE Fourth Circuit […]<\/p>\n","protected":false},"author":1962,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5677,5680,9462,8460,4781,5671,9409],"tags":[],"class_list":{"0":"post-6548","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-clean-air-act","7":"category-clean-energy","8":"category-clean-power-plan","9":"category-epa","10":"category-human-rights","11":"category-international","12":"category-seqra","13":"czr-hentry"},"yoast_head":"\nOctober 2019 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\/2019\/10\/07\/october-2019-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=\"October 2019 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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