{"id":6608,"date":"2019-11-06T15:54:45","date_gmt":"2019-11-06T20:54:45","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=6608"},"modified":"2021-02-09T11:52:04","modified_gmt":"2021-02-09T16:52:04","slug":"november-2019-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2019\/11\/06\/november-2019-updates-to-the-climate-case-charts\/","title":{"rendered":"November 2019 Updates to the Climate Case Charts"},"content":{"rendered":"
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By Margaret Barry and Hillary Aidun<\/em><\/p>\n

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\u00a0CASE\u00a0CHART<\/a>\u00a0SINCE UPDATE # 127.<\/strong><\/p>\n

FEATURED CASE<\/p>\n

State and Local Government Climate Cases to Proceed Against Fossil Fuel Companies in State Courts After Supreme Court Declined to Stay Remand Orders<\/strong><\/p>\n

On October 22, 2019, the U.S. Supreme Court denied fossil fuel companies\u2019 application for a stay pending appeal of a district court\u2019s remand order returning Baltimore\u2019s lawsuit seeking to hold the companies liable for impacts of climate change. The application was presented to Chief Justice Roberts, the circuit justice for the Fourth Circuit, who referred the application to the Court. The Court\u2019s order denying the application indicated that Justice Alito did not take part in the consideration or decision of the application. Also on October 22, the circuit justices for the First Circuit (Breyer) and Tenth Circuit (Sotomayor) denied applications from fossil fuel companies for stays pending appeal of remand orders in cases brought by\u00a0Rhode Island<\/a>\u00a0and\u00a0Colorado<\/a>\u00a0municipal governments. The companies\u2019 appeal of the remand order in Baltimore\u2019s case has been fully briefed in the Fourth Circuit and is scheduled for oral argument on December 11. As of November 5, the district court in Maryland had not yet issued an order to lift its temporary stay on the remand order. In the Rhode Island case, the federal district court issued a text order granting the motion to remand two days after the Supreme Court denied a stay. The companies\u2019 brief in their First Circuit appeal of the remand order is due on November 20. The federal district court in the Colorado case notified the state court of the remand order on October 8, immediately after denying oil and gas companies\u2019 emergency motion for a stay. Other developments in governmental climate change cases against fossil fuel companies included the scheduling of oral argument in the Second Circuit for November 22 in New York City\u2019s case.\u00a0<\/a>BP p.l.c. v. Mayor & City of Baltimore<\/em><\/a>, No. 19A368 (U.S. Oct. 22, 2019);\u00a0BP p.l.c. v. Rhode Island<\/em><\/a>, No. 19A391 (U.S. Oct. 22, 2019);\u00a0Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County<\/em><\/a>, No. 19A428 (U.S. Oct. 22, 2019);\u00a0City of New York v. BP p.l.c.<\/em><\/a>, No. 18-02188 (2d Cir. Sept. 30, 2018).<\/p>\n

<\/p>\n

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

D.C. Circuit Dismissed Challenges to EPA Withdrawal of Obama Administration\u2019s Mid-Term Determination on Vehicle Emission Standards<\/strong><\/p>\n

The D.C. Circuit concluded that it did not have jurisdiction to consider the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) withdrawal of the Obama administration\u2019s mid-term determination that model year 2022 to 2025 greenhouse gas emission standards promulgated in 2012 remained appropriate. The D.C. Circuit said the withdrawal was not a final agency action because it did not satisfy the second prong of the Supreme Court\u2019s\u00a0Bennett v. Spear<\/em>\u00a0test for final agency action, which requires that a final action determine rights or obligations or establish legal consequences. The court noted that the withdrawal did not itself change the emission standards established in 2012 but only created the possibility that the standards could be modified in the future, similar to an agency\u2019s grant of a petition for reconsideration of a rule. The court was not persuaded by the petitioners\u2019 arguments that the withdrawal satisfied the second prong because it had the direct legal consequence of requiring EPA to conduct rulemaking, because it created legal consequences for states that had to act quickly to put California\u2019s standards in place in accordance with Section 117 of the Clean Air Act, and because it withdrew the Obama administration\u2019s determination, which was itself a final agency action.\u00a0<\/a>California v. EPA<\/em><\/a>, Nos. 18-1114, 18-1118, 18-1139, 18-1162 (D.C. Cir. Oct. 25, 2019).<\/p>\n

Ninth Circuit Affirmed Order Directing Department of Energy to Publish Obama-Era Energy Conservation Standards<\/strong><\/p>\n

The Ninth Circuit Court of Appeals agreed with a district court that a U.S. Department of Energy (DOE) regulation imposed a non-discretionary duty on DOE to publish four energy conservation standards approved by DOE at the end of the Obama administration. The Ninth Circuit therefore lifted its stay on the district court\u2019s order directing DOE to publish the standards in the\u00a0Federal Register<\/em>. The standards at issue covered portable air conditioners, commercial packaged boilers, uninterruptible power supplies, and air compressors.\u00a0<\/a>Natural Resources Defense Council, Inc. v. Perry<\/em><\/a>, No. 18-15380 (9th Cir. Oct. 10, 2019).<\/p>\n

Plaintiffs Withdrew Lawsuit After Climate Change-Threatened Caribou Listed as Endangered<\/strong><\/p>\n

In a lawsuit seeking to compel the U.S. Fish and Wildlife Service (FWS) to list the Southern Mountain Caribou distinct population segment (DPS) as endangered or threatened, conservation groups filed a notice of voluntary dismissal after the FWS issued a final rule listing the DPS as endangered and designating critical habitat. The final rule identified climate change as a threat to the caribou and stated that \u201cchanges in climate could directly impact the southern mountain caribou DPS by: (1) Reducing the abundance, distribution, and quality of caribou habitat; (2) limiting the ability of caribou to move between seasonal habitats; and (3) limiting their ability to avoid predation. Impacts from climate change may also affect caribou and their habitat by affecting external factors such as increased disease and insect outbreaks, increased fire occurrence, and changes in snow depth.\u201d\u00a0<\/a>Center for Biological Diversity v. Bernhardt<\/em><\/a>, No. 2:19-cv-00265 (D. Idaho Oct. 29, 2019).<\/p>\n

Idaho Federal Court Enjoined 2019 Amendments to Sage-Grouse Plans<\/strong><\/p>\n

The federal district court for the District of Idaho granted a motion for a preliminary injunction barring the U.S. Bureau of Land Management\u00a0(BLM) from implementing the 2019 BLM Sage-Grouse Plan Amendments for Idaho, Wyoming, Colorado, Utah, Nevada\/Northeastern California, and Oregon. The court directed that a 2015 plan (which is also being challenged in the lawsuit) remain in effect while the court considers the merits of the plaintiffs\u2019 claims, which include claims that the 2019 Plan Amendments failed to evaluate climate change impacts. In granting the preliminary injunction, the court found that the plaintiffs were likely to succeed on their claims that the 2019 Plan Amendments contained substantial reductions in protections for the sage grouse (compared to the 2015 Plans) without justification and that the environmental impact statements (EISs) failed to comply with the National Environmental Policy Act\u2019s requirement that reasonable alternatives be considered; failed to contain a sufficient cumulative impacts analysis; and failed to take the required \u201chard look\u201d at the environmental consequences. The court also found that the plaintiffs were likely to succeed on their claim that supplemental draft EISs should have been issued. In addition, the court found a likelihood of irreparable harm due to numerous site-specific applications for drilling and mining projects in sage-grouse habitats that would be subject to the 2019 Plan Amendments and found that the balance of hardships tipped towards the plaintiffs.\u00a0<\/a>Western Watersheds Project v. Schneider<\/em><\/a>, No. 1:16-cv-00083 (D. Idaho Oct. 16, 2019).<\/p>\n

Montana Federal Court Denied Defendants\u2019 Early Motion for Judgment on the Pleadings in Challenge to Mine Project<\/strong><\/p>\n

The federal district court for the District of Montana denied motions for judgment on the pleadings for two claims in a lawsuit challenging federal determinations authorizing a silver and copper mine project in Montana. First, the court noted that the federal defendants had acknowledged that the complaint stated a cognizable claim that the decision not to reinitiate Endangered Species Act consultation for the grizzly bear in connection with the project was arbitrary and capricious. Second, the court rejected the arguments that the plaintiffs lacked standing to challenge the use of an allegedly improper metric to measure incidental take of bull trout\u2014which the complaint alleged were particularly vulnerable to climate change\u2014and that this claim was not ripe because the taking of the bull trout would not occur until Phase II of the project, which was not yet approved.\u00a0<\/a>Ksanka Kupaqa Xa\u02be\u2c61\u023cin v. U.S. Fish & Wildlife Service<\/em><\/a>, No. 9:19-cv-00020 (D. Mont. Oct. 10, 2019).<\/p>\n

Alaska Federal Court Upheld Determination that Listing of Pacific Walrus as Endangered or Threatened Was Not Warranted<\/strong><\/p>\n

The federal district court for the District of Alaska granted summary judgment to the federal government in Center for Biological Diversity\u2019s lawsuit challenging the 2017 determination that listing of the Pacific walrus as endangered or threatened was not warranted. First, the court found that the U.S. Fish and Wildlife Service (FWS) had provided a reasoned explanation for changing its policy from a 2011 decision that listing was warranted but precluded, including change concerning the effect of projected future losses of sea-ice habitat. Second, the court rejected the claim that the FWS arbitrarily defined the foreseeable future to extend to 2060 rather than 2100. The court said the policy of using 2060 as the foreseeable future timeframe was permissible under the Endangered Species Act, that the use of 2100 in the 2011 listing decision was not determinative, and that the FWS provided reasons for using 2060. Third, the court found that the FWS did not act arbitrarily or capriciously in drawing the conclusion that the Pacific walrus could adapt to loss of habitat. Fourth, the court rejected the argument that the FWS \u201ctreated scientific uncertainty inconsistently\u201d by \u201cdismissing the negative impacts of sea ice loss beyond 2060 because of uncertainly, while relying on uncertainty to conclude that the walrus would be able to adapt to the loss of its sea ice habitat, that the population is approaching stability, and that subsistence harvest would remain sustainable.\u201d Fifth, the court said the FWS had adequately considered sea-ice and land habitat and that the failure to consider coastal erosion was not arbitrary and capricious.\u00a0<\/a>Center for Biological Diversity v. Bernhardt<\/em><\/a>, No. 3:18-cv-00064 (D. Alaska Sept. 26, 2019).<\/p>\n

Minnesota Appellate Court Said Pollution Control Agency Must Consider Dairy Farm Expansion\u2019s Greenhouse Gas Emissions<\/strong><\/p>\n

In an unpublished opinion, the Minnesota Court of Appeals reversed and remanded the Minnesota Pollution Control Agency\u2019s (MPCA\u2019s) determination that an environmental impact statement was not necessary for the proposed expansion of a dairy farm concentrated animal feeding operation. The court concluded that the MPCA should have considered greenhouse gas emissions\u2014an issue raised by an environmental group during the comment period\u2014even though the issue was not included on the alternative environmental assessment worksheet for animal feedlots used in the environmental review. The court noted that the MPCA did not dispute that large dairy farm operations emit methane and also that the MPCA indicated that it was considering changing its review for feedlots to include greenhouse gas emissions, implying that \u201cthe MPCA was aware of, but failed to consider the potential effects of the greenhouse-gas emissions.\u201d The court rejected other objections to the MPCA\u2019s determinations.\u00a0<\/a>In re Proposed Expansion of Daley Farms of Lewiston LLP et al.<\/em><\/a>, Nos.\u00a0A19-0207\u00a0<\/a>&\u00a0A19-0209<\/a>\u00a0(Minn. Ct. App. Oct. 14, 2019).<\/p>\n

California Appellate Court Found Shortcomings in Napa County\u2019s Reliance on Woodland Preservation as Mitigation Measure for Vineyard Project<\/strong><\/p>\n

The California Court of Appeal found that the Center for Biological Diversity (CBD) demonstrated that an environmental impact report\u2019s (EIR\u2019s) conclusion that a vineyard-conversion project would not have a significant impact on greenhouse gas emissions was not supported by substantial evidence. Although the court agreed with the respondent, Napa County, that woodland preservation could mitigate the project\u2019s greenhouse gas emissions, the court concluded that such preservation would not have mitigation or offset value if the trees \u201cwould have reasonably remained otherwise.\u201d In this case, the court said substantial evidence did not support an inference that \u201ctrees to be permanently conserved would not reasonably have remained on the property\u201d since the EIR did not identify the location of woodland acres that would be preserved and 40% of the property was currently undevelopable under local regulations. The court rejected other climate change arguments made by CBD, deferring to the County\u2019s choice of methodology regarding the accounting for loss of carbon sequestration due to tree removal and regarding the calculation of greenhouse gas emissions from downed trees.\u00a0<\/a>Living Rivers Council v. County of Napa<\/em><\/a>, Nos. A154253, A154300, A154314 (Cal. Ct. App. Sept. 30, 2019).<\/p>\n

Trial Began in New York Attorney General\u2019s Fraud Action Against Exxon<\/strong><\/p>\n

The trial in the New York attorney general\u2019s fraud action against Exxon Mobil Corporation (Exxon) began on October 22, 2019 and was scheduled to last three weeks. On October 16, the court held a hearing at which it denied three motions: (1) the attorney general\u2019s motion for an adverse inference against Exxon for spoliation of evidence in connection with Exxon\u2019s failure to preserve emails from its former chief executive Rex Tillerson\u2019s \u201cWayne Tracker\u201d email account; (2) Exxon\u2019s motion to exclude the testimony of the attorney general\u2019s expert witness on whether Exxon\u2019s alleged misrepresentations had a quantitative impact on the company\u2019s stock price; and (3) Exxon\u2019s motion to exclude testimony of an expert witness on whether Exxon\u2019s use of two metrics (proxy costs and GHG costs) were misleading and material to investors. The court denied the attorney general\u2019s motion without prejudice to renewal at trial. Select documents are available on the case\u2019s\u00a0page<\/a>\u00a0on the U.S. Climate Case Chart. All filings in the case can be viewed on New York\u2019s eCourts\u00a0site<\/a>.\u00a0<\/a>People v. Exxon Mobil Corp.<\/em><\/a>, No. 452044\/2018 (N.Y. Sup. Ct. Oct. 16, 2019).<\/p>\n

New York Court Dismissed Challenge to State\u2019s Nuclear Plant Subsidies<\/strong><\/p>\n

A New York court upheld the New York State Public Service Commission\u2019s (PSC\u2019s) Clean Energy Standard and Zero Emission Credit (ZEC) program for nuclear plants. The court found that the PSC had complied with requirements of the State Administrative Procedure Act, including by \u201cadequately striv[ing] to ensure, to the maximum extent practical\u201d that the application of the term \u201czero-emission\u201d to power plants complied with the SAPA goal that agencies write \u201cin a clear and coherent manner, using words with common and everyday meanings.\u201d In addition, the court found that the administrative record adequately supported the PSC\u2019s use of the social cost of carbon in the calculation of ZEC payments. The court also concluded there was adequate support in the record for the PSC\u2019s conclusions regarding reduced carbon emissions associated with continued operation of the nuclear plants and the PSC\u2019s findings of \u201cpublic necessity.\u201d\u00a0<\/a>Hudson River Sloop Clearwater, Inc. v. New York State Public Service Commission<\/em><\/a>, Index No. 7242-16 (N.Y. Sup. Ct. Oct. 8, 2019).<\/p>\n

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

Automakers and Seven States Sought to Intervene to Defend NHTSA\u2019s Preemption of State Vehicle Standards<\/strong><\/p>\n

Seven states, a trade association representing automobile manufacturers, and an umbrella organization representing certain automobile manufacturers and trade groups filed motions to intervene in support of the National Highway Traffic Safety Administration (NHTSA) in a proceeding filed in the D.C. Circuit to challenge NHTSA\u2019s final rule withdrawing California\u2019s waiver for its greenhouse gas and zero-emission vehicle (ZEV) program and preempting state programs that regulate vehicle greenhouse gas emissions or create ZEV mandates. Environmental Defense Fund (EDF) filed a protective petition for review in the D.C. Circuit in September to protect its right to judicial review in the event that the federal district court in which EDF and others have filed lawsuits challenging the final rule determines that the district court lacks subject matter jurisdiction. On October 28, EDF and other groups filed a second protective petition for review after the federal government sought to dismiss the district court case or transfer it to the D.C. Circuit. The next day EDF sought voluntary dismissal without prejudice of its original petition. The seven states\u2014Ohio, Alabama, Alaska, Louisiana, Texas, Utah, and West Virginia\u2014sought to intervene \u201cboth because California\u2019s standards elevate California\u2019s sovereignty above other States and because those standards shape the market for the regulated vehicles nationwide.\u201d The automaker groups argued that they should be allowed to intervene as of right because they represent a substantial portion of the regulated industry and have an interest in a single national regulatory program.\u00a0<\/a>Environmental Defense Fund v. National Highway Traffic Safety Administration<\/em><\/a>, No. 19-1200 (D.C. Cir., filed Sept. 27, 2019);\u00a0Union of Concerned Scientists v. National Highway Traffic Safety Administration<\/em><\/a>, No. 19-1230 (D.C. Cir., filed Oct. 28, 2019).<\/p>\n

Massachusetts Attorney General Launched Enforcement Action Against Exxon for Allegedly Misleading Investors and Consumers<\/strong><\/p>\n

On October 24, 2019, the Massachusetts attorney general filed a complaint in Massachusetts Superior Court asserting that Exxon Mobil Corporation (Exxon) committed deceptive practices against Massachusetts investors and consumers by failing to disclose climate change risks, misrepresenting its business practices related to use of proxy costs of carbon, misleadingly advertising its products, failing to disclose its products\u2019 impacts on climate change, and engaging in greenwashing campaigns. The complaint said Exxon\u2019s actions and practices violated the Massachusetts Consumer Protection Act. The attorney general seeks injunctive relief, penalties, the costs investigation, and attorneys\u2019 fees. Prior to the filing of the lawsuit, the Superior Court denied an emergency motion by Exxon for an extension of time in which to initiate a meet-and-confer with the attorney general\u2019s office. Exxon\u00a0reportedly<\/a>\u00a0argued that it had a right to confer in person and that it could not do so until November due to its attorneys\u2019 involvement in the ongoing trial in the New York attorney general\u2019s fraud action against Exxon.\u00a0<\/a>Commonwealth v. Exxon Mobil Corp.<\/em><\/a>, No. 19-3333 (Mass. Super. Ct., filed Oct. 24, 2019).<\/p>\n

U.S. Sued to Block Implementation of California-Quebec Cooperation on Greenhouse Gas Emissions<\/strong><\/p>\n

The United States filed a lawsuit in the federal district court for the Eastern District of California seeking to bar California from continuing to implement a 2013 agreement with the provincial government of Quebec, Canada pursuant to which California and Quebec work to harmonize their greenhouse gas reporting and cap-and-trade programs. The U.S. contended that the agreement\u2014along with a separate agreement between California and the Western Climate Initiative and certain supporting provisions of California law\u2014violated the Constitution by intruding on federal powers to negotiate international agreements. The complaint alleged that \u201c[a]llowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is \u2026 anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States\u2019 ability to negotiate competitive international agreements.\u201d The U.S. asserted claims under the Treaty Clause, the Compact Clause, the foreign affairs doctrine, and the foreign Commerce Clause.\u00a0<\/a>United States v. California<\/em><\/a>, No. 2:19-cv-02142 (E.D. Cal., filed Oct. 23, 2019).<\/p>\n

States Filed Protective Challenge to EPA Extension of Deadlines for Implementing Landfill Emission Guidelines<\/strong><\/p>\n

California and eight other states filed a protective petition for review in the D.C. Circuit Court of Appeals challenging EPA\u2019s final rule published in August 2019 that had the effect of extending certain implementation deadlines for the emission guidelines for municipal solid waste landfills promulgated in 2016. In their petition, the states indicated that they believed a district court order in the Northern District of California would mitigate the final rule\u2019s harm, but that it was necessary to file the petition because EPA had filed a motion to amend the district court\u2019s order. Environmental Defense Fund also filed a petition for review of EPA\u2019s final rule.\u00a0<\/a>California v. EPA<\/em><\/a>, No. 19-1227 (D.C. Cir., filed Oct. 25, 2019);\u00a0Environmental Defense Fund v. EPA<\/em><\/a>, No. 19-1222 (D.C. Cir., filed Oct. 23, 2019).<\/p>\n

Farmers, Ethanol Producers Challenged EPA Decision on Small Refinery Exemptions<\/strong><\/p>\n

Trade groups for producers of ethanol and other biofuels and trade associations for farmers filed a petition for review of EPA\u2019s August 2019 decision regarding small refinery exemptions to renewable fuel standard requirements for 2018.\u00a0<\/a>Renewable Fuels Association v. EPA<\/em><\/a>, No. 19-1220 (D.C. Cir., filed Oct. 22, 2019).<\/p>\n

Sierra Club Sought FOIA Response from SEC Concerning Climate Change Shareholder Proposals<\/strong><\/p>\n

Sierra Club filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Securities and Exchange Commission\u00a0(SEC) asserting that the agency failed to comply with FOIA deadlines and perform an adequate search for records in response to Sierra Club\u2019s requests for external communications and internal records regarding shareholder proposals on climate change, greenhouse gas emissions, or the Paris Agreement. Sierra Club\u2019s requests also sought records involving the SEC\u2019s use of the term \u201cmicromanagement\u201d in evaluating shareholder proposals. Sierra Club alleged that the SEC was increasingly using micromanagement as a basis for shareholder proposal no-action letters. The complaint cited, in particular, the SEC\u2019s \u201cunprecedented\u201d no-action letter allowing EOG Resources, Inc.\u00a0<\/span>to omit from shareholder consideration a proposed resolution requiring the company to set a target for its greenhouse gas emissions.\u00a0<\/a>Sierra Club v. U.S. Securities & Exchange Commission<\/em><\/a>, No. 4:19-cv-06971 (N.D. Cal., filed Oct. 24, 2019).<\/p>\n

Lawsuit Filed Challenging Resource Management Plan Amendment that Makes Bay Area and Central Coast Public Lands Available for Oil and Gas Development<\/strong><\/p>\n

Center for Biological Diversity and Sierra Club filed a lawsuit in the federal district court for the Northern District of California challenging BLM\u2019s approval of a resource management plan amendment for a planning area that included California\u2019s Bay Area and Central coast. The complaint alleged that the plan amendment would make 725,500 acres available for oil and gas leasing and that BLM\u2019s environmental review failed to adequately analyze the impacts of oil and gas development, including effects on greenhouse gas emission and the climate.\u00a0<\/a>Center for Biological Diversity v. U.S. Bureau of Land Management<\/em><\/a>, No. 4:19-cv-07155 (N.D. Cal. Oct. 30, 2019).<\/p>\n

Lawsuit Asked Court to Require Designation of Critical Habitat for Endangered Hawaiian Plants and Animals<\/strong><\/p>\n

Center for Biological Diversity filed an Endangered Species Act lawsuit in federal court in the District of Hawaii seeking to compel the designation of critical habitat for 14 species of plants and animals from the island of Hawai\u2018i that were listed as endangered in 2013. The complaint alleged that the species were in danger of extinction throughout their range due to serious and ongoing threats including climate change.\u00a0<\/a>Center for Biological Diversity v. Bernhardt<\/em><\/a>, No. 1:19-cv-00588 (D. Haw., filed Oct. 28, 2019).<\/p>\n

New York Asked Federal Court to Require New State-by-State Quotas for Shifting Summer Flounder Fishery<\/strong><\/p>\n

New York State filed a federal lawsuit challenging a final rule that established the 2020\u20132021 specifications for the summer flounder fishery, including a total annual commercial summer flounder quota and a state-by-state allocation of that quota based on a 1993 allocation rule. New York, along with the New York State Department of Environmental Conservation\u00a0(DEC) and the DEC Commissioner, alleged that the summer flounder (also known as fluke) population had shifted northeast in the years since the state-by-state quotas were established\u2014\u201clikely due to \u2026 factors including ocean warming\u201d\u2014and that New York now has an unfairly low allocation of the quota based on out-of-date data about the summer flounder population. The plaintiffs alleged that this allocation led to, among other things, New York-based fishermen catching summer flounder in waters near Long Island (now the center of the fishery), then traveling to southern states such as Virginia and North Carolina to land their catch, and returning to their home ports in New York. The complaint asserted that the 2020\u20132021 specifications rule and the 1993 allocation rule were inconsistent with the Magnuson-Stevens Act and arbitrary and capricious. On the same day that New York filed its complaint, the State also filed a motion for summary judgment. New York previously filed a similar\u00a0lawsuit<\/a>\u00a0challenging the 2019 allocation. The district court closed that case after receiving a letter from the federal defendants indicating that they anticipated issuing a proposed rule revising the 1993 state-by-state quotas in September 2019 and finalizing the regulation in March or April 2020; the court said the case could be reopened no later than April 2020.\u00a0<\/a>New York v. Ross<\/em><\/a>, No. 1:19-cv-09380 (S.D.N.Y., filed Oct. 10, 2019).<\/p>\n

Sierra Club Filed Lawsuit Seeking Documents Supporting EPA Administrator\u2019s Climate Change Assertions in TV Interview<\/strong><\/p>\n

Sierra Club filed a FOIA lawsuit in federal court in the District of Columbia seeking an order requiring EPA to respond to its request for records on which EPA Administrator Andrew Wheeler relied in a television interview in March 2019 when he asserted that \u201cmost of the threats from climate change are 50 to 75 years out.\u201d Sierra Club alleged that Wheeler\u2019s assertion \u201cdirectly contradicts the clear consensus of the scientific community, including the United States\u2019 own Fourth National Climate Assessment\u2014a monumental work authored by scientists from 13 federal agencies including EPA, and published months before the Administrator\u2019s interview.\u201d Sierra Club alleged that EPA initially signaled it would comply with the FOIA request but later categorically denied it, claiming that the request was not adequately specific. Sierra Club asserted that this was an improper basis for denial of the request.\u00a0<\/a>Sierra Club v. EPA<\/em><\/a>, No. 1:19-cv-03018 (D.D.C., filed Oct. 9, 2019).<\/p>\n

Environmental Groups Challenged BLM\u2019s Failure to Consider Colorado Resource Management Plan\u2019s Climate Impacts<\/strong><\/p>\n

Center for Biological Diversity and two other groups filed a lawsuit in federal court in Colorado challenging BLM\u2019s approval of a resource management plan in western Colorado that applied to 1,061,400 acres of BLM-administered surface land and 1,231,200 acres of BLM-managed federal mineral estate. The plaintiffs alleged that the plan made 935,600 acres available for oil and gas leasing and that BLM projected that 3,940 wells would be drilled. They asserted that BLM violated NEPA by failing to address foreseeable indirect impacts from downstream combustion of oil and gas resources and by failing to consider cumulative effects to the climate caused by foreseeable oil and gas production under the plan in combination with BLM\u2019s nationwide public lands oil and gas program. The plaintiffs also said BLM\u2019s failure to consider alternatives to oil and gas leasing and development violated NEPA.\u00a0<\/a>Center for Biological Diversity v. Bernhardt<\/em><\/a>, No. 1:19-cv-02869 (D. Colo., filed Oct. 8, 2019).<\/p>\n

Conservation Groups Alleged Interior Department Failed to Consider Climate Change in Review of Management Plan for Glen Canyon Dam<\/strong><\/p>\n

Three conservation groups filed a lawsuit in federal court in Arizona asserting that the U.S. Department of the Interior\u2019s December 2016 plan for managing the Glen Canyon Dam violated NEPA due to the Department\u2019s \u201cillegal and willful omission of Colorado River climate change impact projections from the required environmental impacts analysis.\u201d The plaintiffs said the Department failed to analyze the environmental consequences of the proposed action on the affected environment, including the cumulative and indirect impacts caused by climate change; improperly drafted the project\u2019s purpose and need statement to exclude climate change adaption; failed to consider a reasonable range of alternatives, including numerous reasonable alternatives that would adapt the Dam\u2019s operations to climate change impacts; and failed to explain the relationship between relevant land use policies, controls, and guidance documents in regard to the examined alternatives and rejected alternatives and climate change impacts. The plaintiffs also contended that even if the 2016 environmental impact statement was adequate at that time, a supplemental EIS was required because of recently published scientific research on climate change impacts on the Colorado River.\u00a0<\/a>Save the Colorado v. U.S. Department of the Interior<\/em><\/a>, No. 3:19-cv-08285 (D. Ariz., filed Oct. 1, 2019).<\/p>\n

Lawsuit Filed Challenging Modification to Greater Sage-Grouse Oregon Conservation Plan<\/strong><\/p>\n

Three conservation groups filed a lawsuit challenging BLM\u2019s March 2019 decision \u201cto reverse and abandon\u201d a provision of the 2015 conservation plan for the greater sage-grouse in Oregon by closing approximately 22,000 acres to livestock grazing. The plaintiffs alleged that the \u201cungrazed areas serve as indispensable control sites to study the effects of grazing\u2014and of not grazing\u2014on unique sagebrush plant communities that are essential to the survival and recovery of the sage-grouse.\u201d They asserted that the amendment to the conservation violated NEPA by, among other things, failing \u201cto consider the relationship of the plan amendment to global climate change,\u201d including failing to consider effects specific to certain areas that lie within BLM-identified Climate Change Conservation Areas.\u201d The complaint also asserted a violation of the Federal Land Policy and Management Act.\u00a0<\/a>Oregon Natural Desert Association v. Hanley<\/em><\/a>, No. 3:19-cv-01550 (D. Or., filed Sept. 27, 2019).<\/p>\n

Rhode Island Court to Consider Its Jurisdiction to Review State\u2019s Denial of Climate Change Rulemaking Petition<\/strong><\/p>\n

At a hearing on October 28, 2019, a Rhode Island state court held a hearing in a lawsuit challenging the Rhode Island Department of Environmental Management\u2019s (RIDEM\u2019s) denial in 2018 of a petition requesting that RIDEM initiate rulemaking to address climate change. News accounts\u00a0reported<\/a>\u00a0that the court set a schedule for the parties to address the threshold issue of whether the court had jurisdiction to hear the case.\u00a0Duryea v. Rhode Island Department of Environmental Management<\/em><\/a>, No. PC-2018-7920 (R.I. Super. Ct. Oct. 28, 2019).<\/p>\n

CEQA Lawsuit Alleged Plan for Transit-Oriented Development in San Diego Neighborhood Did Not Adequately Analyze Greenhouse Gas Impacts<\/strong><\/p>\n

A community group filed a California Environmental Quality Act lawsuit against the City of San Diego challenging the approval of the Balboa Avenue Station Area Specific Plan, which affects approximately 210 acres and was intended to provide a framework for transit-oriented development. The group alleged that the City failed to adequately analyze the environmental effects of the Plan, including its greenhouse gas impacts. The group also alleged that the Plan violated the City\u2019s General Plan and Climate Action Plan.\u00a0<\/a>Friends of Rose Creek v. City of San Diego<\/em><\/a>, No. 37-2019-00053679-CU-TT-CTL (Cal. Super. Ct., filed Oct. 9, 2019).<\/p>\n

State Lawsuit in Colorado Sought Stay on Permitting for Oil and Natural Gas Development Pending Completion of Rulemaking Under New Law<\/strong><\/p>\n

A community organization representing residents of Broomfield, Colorado filed a lawsuit asking a Colorado state court to stay permitting for an application for a horizontal wellbore spacing unit until the Colorado Oil and Gas Conservation Commission completed rulemaking required by SB 19-181. The plaintiff also requested a stay of permitting in all cases involving permitting of any drilling, pooling, and spacing units until rulemaking was completed. The plaintiff said the new state law required rulemaking that addressed the potential cumulative impacts of oil and gas development as well as rulemaking to minimize emissions of methane and other pollutants from oil and natural gas facilities.\u00a0<\/a>Wildgrass Oil & Gas Committee v. Colorado Oil & Gas Conservation Commission<\/em><\/a>, No. 2019CV33888 (Colo. Dist. Ct., filed Oct. 8, 2019).<\/p>\n

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

Canadian Youth Alleged Government Violates Constitutional Rights by Failing to Curb GHGs<\/strong><\/p>\n

Fifteen children and youths have brought suit against the Queen and Attorney General of Canada, alleging that Canada emits and contributes to emitting greenhouse gases that are incompatible with a stable climate. The plaintiffs argue that Canada’s actions have violated their rights under the Charter of Rights and Freedom, as well as the rights of present and future Canadian children. They seek declaratory relief and an order requiring the government to adopt a Climate Recovery Plan.<\/p>\n

Plaintiffs are children and youth in Canada who allege that they have been and will continue to be exposed to climate change impacts that interfere with their physical and psychological wellbeing, as well as their ability to make fundamental life choices. The plaintiffs assert that because of their vulnerability and age, they will bear a disproportionate share of the burden imposed by climate change. They claim that Canada has caused, contributed to, and allowed a level of greenhouse gas emissions that is incompatible with a stable climate system; adopted greenhouse gas emissions targets that are inconsistent with the best available science regarding what action is necessary to avoid dangerous climate change; failed to meet its own national greenhouse gas emission targets; and actively participated in and supported the development, expansion, and operation of industries and activities involving fossil fuels that emit a level of greenhouse gases that is incompatible with a stable climate.<\/p>\n

Plaintiffs seek declarations that defendants have unjustifiably infringed their rights\u2014and the rights of all present and future children and youth in Canada\u2014under the Canadian Charter of Rights and Freedoms. Specifically, plaintiffs allege that defendants have violated Section 7 of the Charter, which protects the rights to life, liberty and security; and Section 15 of the Charter, which provides that every individual is equal under the law. Plaintiffs also argue that Canada has a common law and constitutional obligation to protect the integrity of common natural resources that are fundamental to sustaining human life and liberties, and seek a declaration that defendants have failed to discharge their public trust obligations with respect to those resources. Finally, they seek an order requiring defendants to develop and implement an enforceable Climate Recovery Plan that is consistent with Canada’s fair share of the global carbon budget necessary to achieve greenhouse gas emissions, and ask the court to retain jurisdiction to ensure the plan is implemented.\u00a0<\/a>La Rose v. Her Majesty the Queen<\/em><\/a>\u00a0T-1750-19 (Federal Court of Canada).<\/p>\n

Climate Group Filed Memorandum with French Constitutional Council Alleging New Climate Bill Contains Insufficient Measures<\/strong><\/p>\n

On September 26, 2019, the French Parliament approved a bill related to energy and the climate, which aims to achieve carbon neutrality by 2050. The environmental nongovernmental organization\u00a0Notre Affaire \u00e0 Tous (NAAT) filed an external contribution (similar to a friend of the court filing) with the French Constitutional Council, which according to NAAT is reviewing the new legislation following a legal challenge. NAAT alleges that the bill does not comply with the environmental obligation of vigilance previously recognized by the Constitutional Council, and asks the Council to recognize the right to live in a sustainable climate as a constitutional principle.<\/p>\n

According to NAAT, its memorandum makes the following arguments: 1) the bill mandates insufficient greenhouse gas cuts to achieve carbon neutrality; 2) the absence of adequate corporate greenhouse gas reductions violates the vigilance obligation; 3) the lack of existing financial measures makes achieving carbon neutrality an uncertain goal; 4) the legislation’s carbon neutrality objective should not be confined to energy, as agriculture represents 20% of France’s greenhouse gas emissions; 5) the intermediate targets provided by the bill are not consistent with achieving carbon neutrality; 6) the absence of an independent body with reviewing and enforcement powers runs afoul of the principle of vigilance.\u00a0External Contribution<\/em><\/a>\u00a0(French Constitutional Council).<\/p>\n

Greenpeace Luxembourg Filed Suit Seeking Information on National Pension Fund\u2019s Investments and Exposure to Climate Risks<\/strong><\/p>\n

Greenpeace Luxembourg has brought an action in administrative court against the Luxembourgish Minister of Social Security, Roman Schneider. Greenpeace claims that the Minister failed to respond to an August letter asking for information regarding how Luxembourg\u2019s sovereign pension fund planned to align its investments with the objectives of the Paris Agreement, and information on the climate-related financial risks associated with the fund\u2019s investments. According to Greenpeace, on October 1 an administrative judge ordered the parties to provide their written positions on the issues raised.\u00a0<\/a>Greenpeace Luxembourg v. Schneider<\/em><\/a>\u00a0(Luxembourg Administrative Court).<\/p>\n

Environmental Group Brought Suit Under Polish Law to Cut Greenhouse Gas Emissions from Europe\u2019s Largest Coal Plant<\/strong><\/p>\n

Environmental law organization ClientEarth is seeking to reduce greenhouse gas emissions from Europe’s largest power plant, Belchatow. According to ClientEarth, Belchatow burns 45 million tons of a form of coal called lignite every year, and has emitted approximately 1 billion tons of carbon dioxide over its lifetime, making it Europe’s greatest source of greenhouse gas pollution. ClientEarth alleges that the plant’s operator, Polska Grupa Energetyczna, has not presented any official plan to reduce its climate impacts. The lawsuit seeks to block the plant operators from burning lignite – or require measures to reduce carbon dioxide emissions – by 2035. According to ClientEarth, the lawsuit arises out of Article 323 of Poland’s 2001 Environmental Protection Law, which permits ecological organizations to demand that preventive measures be taken when an activity harms the environment as a common good.\u00a0ClientEarth v. Polska Grupa Energetyczna<\/em><\/a>\u00a0(Regional Court of\u00a0\u0141\u00f3d\u017a).<\/p>\n

Advocate and Procurator General Urged Dutch Supreme Court to Uphold Decision Order GHG Cuts<\/strong><\/p>\n

A Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued the Dutch government to compel more ambitious action on climate change. In June 2015, the Hague District Court ordered the Dutch state to limit greenhouse emissions to 25% below 1990 levels by 2020, finding the government\u2019s existing pledge to reduce emissions by 17% insufficient to meet the state\u2019s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. In October 2018, the Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25% by 2020, the Dutch government contravened its duty of care under Articles 2 and 8 of the European Convention on Human Rights. The Dutch government appealed the decision, and the Supreme Court of the Netherlands heard the appeal on in May 2019. On September 13, 2019 the Advocate and Procurator General, independent judicial officers, issued a formal opinion recommending that the Supreme Court affirm. The Supreme Court is expected to issue a decision on December 20.\u00a0<\/a>Urgenda v. Netherlands<\/em><\/a>\u00a0HAZA C\/09\/00456689 (Dutch Court of Appeals).<\/p>\n

Court Denied Injunction to Compel EU to Enact Deeper GHG Cuts, Plaintiffs Appealed<\/strong><\/p>\n

Ten families brought an action in the EU General Court seeking an injunction to compel the EU to adopt more stringent greenhouse gas reduction targets. Plaintiffs allege that the EU\u2019s existing goal of reducing domestic emissions by 40% by 2030 as compared to 1990 levels is insufficient to avoid dangerous climate change and threatens plaintiffs\u2019 fundamental rights of life, health, occupation, and property. In May 2019 the European General Court dismissed the case on procedural grounds\u2014without reaching the merits\u2014after concluding that plaintiffs lacked standing. The court reasoned that plaintiffs are not sufficiently and directly affected by EU climate change policies, and case law requires that plaintiffs be impacted by the challenged act in a manner that is \u201cpeculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.\u201d The plaintiffs appealed to the European Court of Justice on July 11, 2019, arguing that the EU General Court erred in concluding that they lacked standing.\u00a0Carvalho v. The European Parliament and the Council<\/em><\/a>\u00a0T-330\/18 (EU Gen. Ct.).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Margaret Barry and Hillary Aidun 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 […]<\/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":[9410,5680,5673,8460,5671],"tags":[],"class_list":{"0":"post-6608","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-ceqr","7":"category-clean-energy","8":"category-litigation","9":"category-epa","10":"category-international","11":"czr-hentry"},"yoast_head":"\nNovember 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\/11\/06\/november-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=\"November 2019 Updates to the Climate Case Charts - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"By Margaret Barry and Hillary Aidun 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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