{"id":6983,"date":"2020-08-12T11:32:54","date_gmt":"2020-08-12T16:32:54","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=6983"},"modified":"2020-08-12T11:32:54","modified_gmt":"2020-08-12T16:32:54","slug":"august-2020-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2020\/08\/12\/august-2020-updates-to-the-climate-case-charts\/","title":{"rendered":"August 2020 Updates to the Climate Case Charts"},"content":{"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<\/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 # 136.<\/strong><\/p>\n

FEATURED CASES<\/p>\n

Methane Waste Prevention Rule Cases: California Federal Court Vacated BLM Repeal of 2016 Rule, Wyoming Federal Court Restarted Challenge to 2016 Rule<\/strong><\/p>\n

A federal court in California vacated the U.S. Bureau of Land Management\u2019s (BLM\u2019s) 2018 rule repealing most of the 2016 Waste Prevention Rule, finding that the process that resulted in the 2018 rule was \u201cwholly inadequate.\u201d First, the court found that BLM ignored the Mineral Leasing Act\u2019s statutory mandate by adding an \u201ceconomic limitation\u201d to the interpretation of \u201cwaste\u201d and through a \u201cblanket delegation\u201d to state and tribal authority. Second, the court found that BLM did not comply with the Administrative Procedure Act, finding fault with all of BLM\u2019s grounds for the rescission. The court found that BLM did not provide adequate justification for reversing its position that the 2016 rule\u2019s requirements were \u201ceconomical, cost-effective, and reasonable\u201d;\u00a0 impermissibly relied on President Trump\u2019s Executive Order 13783 in a manner that was inconsistent with statutory mandates; arbitrarily and capriciously used a new \u201cinterim domestic\u201d social cost of methane to analyze costs and benefits; arbitrarily ignored the Waste Prevention Rule\u2019s benefits; arbitrarily overstated the administrative burden and failed to explain the \u201cdramatic recalculation\u201d of administrative costs; and arbitrarily and capriciously calculated compliance costs. Third, the court found that BLM did not satisfy its \u201chard look\u201d obligation under NEPA with respect to impacts on public health (including impacts on tribal communities), impacts on climate, and cumulative climate impacts of BLM\u2019s fossil fuel program. The court further found that BLM erred by not preparing an environmental impact statement. The court stayed its vacatur of the 2018 rule and re-implementation of the 2016 rule for 90 days to allow the parties to determine next steps. Five days later, four states (North Dakota, Texas, Wyoming, and Montana) moved to lift a stay on litigation challenging the 2016 rule in the federal district court for the District of Wyoming. The Wyoming court granted the motion the following day and ordered the parties to propose an expedited merits briefing schedule premised on completion of briefing by September 4, 2020. California v. Bernhardt<\/em><\/a>, No. 4:18-cv-05712 (N.D. Cal. July 15, 2020); Wyoming v. U.S. Department of the Interior<\/em><\/a>, No. 2:16-cv-00285 (D. Wyo. July 21, 2020).<\/p>\n

<\/p>\n

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

Public Nuisance Cases: Tenth Circuit Affirmed Remand Order in Colorado Localities\u2019 Climate Suits Against Oil and Gas Companies; Ninth Circuit Denied Rehearing of Decision Affirming Remand Order; First Circuit Scheduled Oral Argument on Appeal of Remand Order in Rhode Island Case<\/strong><\/p>\n

The Tenth Circuit Court of Appeals affirmed a district court order remanding to Colorado state court a lawsuit brought by Boulder County and two other local governments seeking to hold oil and gas companies liable for climate change-related damages allegedly caused by the companies. The Tenth Circuit determined that its appellate jurisdiction was limited to the issue of federal officer removal. It therefore did not address the five other grounds for removal on which the companies relied in their appeal. The Tenth Circuit also found that ExxonMobil Corporation, one of the companies, failed to establish grounds for federal officer removal. The Tenth Circuit is the third federal appeals court to affirm the remand of a climate change lawsuit brought by local governments (the others are the Fourth and Ninth Circuits). Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc.<\/em><\/a>, No. 19-1330 (10th Cir. July 7, 2020).<\/p>\n

In the California local government cases, the Ninth Circuit denied the defendants-appellants\u2019 petition for rehearing en banc in County of San Mateo v. Chevron Corp.<\/em>, which affirmed the district court\u2019s remand order. A petition for panel rehearing and\/or rehearing en banc is still pending in City of Oakland v. BP p.l.c.<\/em> The United States, as well as the U.S. Chamber of Commerce and 20 states, filed amicus briefs in support of the petition for rehearing. The U.S. argued that whether \u201carising under federal common law\u201d is a basis for removal and whether the case is governed by federal or state law are issues of \u201cexceptional importance.\u201d The U.S. said the Ninth Circuit\u2019s failure to recognize \u201carising under federal common law\u201d as a basis for removal conflicted with Ninth Circuit precedent. The U.S. also said rehearing should be granted because the Ninth Circuit \u201ctook a wrong turn\u201d when it determined that improper removal could not be excused by the plaintiffs\u2019 subsequent amendment of their complaint to include a federal claim. City of Oakland v. BP p.l.c.<\/em><\/a>, No. 18-16663 (9th Cir.); County of San Mateo v. Chevron Corp.<\/em><\/a>, Nos. 18-15499 et al. (9th Cir. Aug. 4, 2020).<\/p>\n

In Rhode Island\u2019s case against fossil fuel companies, which is currently proceeding in state court, the First Circuit scheduled oral argument for September 11, 2020 in the defendants\u2019 appeal of the remand order. Rhode Island v. Shell Oil Products Co.<\/em><\/a>, No. 19-1818 (1st Cir.).<\/p>\n

Ninth Circuit Denied Rehearing of Ruling that Oakland Prohibition on Coal Operations at Terminal Violated Development Agreement<\/strong><\/p>\n

The Ninth Circuit Court of Appeals denied petitions for panel rehearing and rehearing en banc of the court\u2019s decision affirming that the City of Oakland could not bar coal-related operations at a terminal being developed at a former Army base due to an agreement between the City and terminal\u2019s developer that existing regulations would apply to the facility. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland<\/em><\/a>, No. 18-16105 (9th Cir. Aug. 3, 2020).<\/p>\n

Ninth Circuit Said 2012 EIS Properly Served as NEPA Analysis for 2017 Lease Sales in National Petroleum Reserve-Alaska<\/strong><\/p>\n

The Ninth Circuit Court of Appeals affirmed summary judgment in favor of the defendants in a case challenging compliance with the National Environmental Policy Act (NEPA) prior to BLM\u2019s 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska. The Ninth Circuit deferred to BLM\u2019s \u201creasonable position\u201d that a 2012 environmental impact statement (EIS) that evaluated the management of all BLM-managed lands in the Reserve encompassed future lease sales; the court therefore rejected claims that BLM violated NEPA or its regulations by failing to prepare a NEPA analysis prior to the 2017 lease sale. The Ninth Circuit further concluded that the claim that BLM failed to take a hard look at the 2017 lease sale\u2019s impacts was time-barred under the Naval Petroleum Reserves Production Act\u2019s statute of limitations. The Ninth Circuit said the BLM\u2019s only remaining hard look obligation was to analyze new circumstances and new information, but the court said the plaintiffs had waived any supplementation claim.<\/p>\n

In a separate unpublished memorandum in a related case, the Ninth Circuit affirmed the district court\u2019s dismissal of environmental organizations\u2019 claim that BLM failed to take a hard look at the potential greenhouse gas emissions from the lease sales and failed to adequately analyze alternatives. The Ninth Circuit rejected the organizations\u2019 argument that the 2012 EIS could not serve as NEPA analysis for the lease sales at issue because it did not assess climate change impacts. As in the other case, the Ninth Circuit further concluded that any hard look challenge to the 2012 EIS was time-barred; the court also found that the organizations failed to preserve any NEPA supplementation claim. Northern Alaska Environmental Center v. U.S. Department of the Interior<\/em><\/a>, No. 19-35008 (9th Cir. July 9, 2020); Natural Resources Defense Council v. Bernhardt<\/em><\/a>, No. 19-35006 (9th Cir. July 9, 2020).<\/p>\n

Ninth Circuit Largely Agreed with District Court\u2019s Assessment of Problems with Yellowstone Grizzly Delisting Rule<\/strong><\/p>\n

The Ninth Circuit Court of Appeals largely affirmed a district court order that remanded to the U.S. Fish and Wildlife Service (FWS) a rule delisting the Greater Yellowstone Ecosystem distinct population segment of grizzly bears under the Endangered Species Act. The Ninth Circuit agreed with the district court that the FWS\u2019s commitment to ensuring the long-term genetic diversity of the Yellowstone grizzly was not adequate and that the FWS must commit to \u201crecalibration\u201d in the event of changes to the method of estimating the Yellowstone grizzly population. The lawsuits challenging the delisting rule had alleged threats to the Yellowstone grizzly bears due to climate change impacts on food sources and habitat. Crow Indian Tribe v. United States<\/a><\/em>, No. 18-36030 (9th Cir. July 8, 2020).<\/p>\n

Federal Court Transferred Challenge to Louisiana\u2019s Criminal Statute Barring Unauthorized Entry of Pipelines, Dismissed Claims Against State Attorney General <\/strong><\/p>\n

In a case challenging the facial and as-applied constitutionality of Louisiana\u2019s law prohibiting entry of critical infrastructure including pipelines, the federal district court for the Middle District of Louisiana denied motions to dismiss claims against a district attorney and sheriff in St. Martin Parish, where some of the plaintiffs were arrested while protesting construction of the Bayou Bridge Pipeline. The court dismissed claims against the Louisiana attorney general, finding that he was not a proper defendant under Ex Parte Young<\/em>. Although the court concluded that venue over a constitutional challenge to a state statute was appropriate in the state\u2019s capitol, the court granted a motion to transfer the case to the Western District of Louisiana, finding that transfer was more convenient for the parties and witnesses and in the interest of justice. White Hat v. Landry<\/a><\/em>, No. 3:19-cv-00322 (M.D. La. July 30, 2020).<\/p>\n

Montana Federal Magistrate Denied Motion to Transfer Coal Mine Expansion Lawsuit to D.C., Found that Standing Allegations Were Inadequate for Some Plaintiffs<\/strong><\/p>\n

A magistrate judge in the federal district court for the District of Montana recommended that the court grant in part and deny in part a Montana coal mine owner\u2019s motion to dismiss a NEPA challenge to federal approval of the mine\u2019s expansion. The mine, known as the Rosebud Mine, is a 25,949-acre surface coal mine, and expansion would increase the mine\u2019s size by approximately 6,500 acres. The magistrate found that two of the organizations had adequately alleged standing but that the standing allegations of three other organizations were insufficient. The magistrate recommended that the three organizations be allowed to amend the complaint with additional allegations. In a separate order, the magistrate denied the mine owner\u2019s motion to transfer the action to the federal district court in the District of Columbia, where the owner is challenging the exclusion of 74 acres from the mine expansion approval. Among other factors weighing against transfer, the magistrate found that there was not substantial overlap between the two cases because the issues in this case\u2014which included impacts on surface waters and greenhouse gas emissions\u2014were broader than the NEPA issues raised in the mine owner\u2019s lawsuit. The court also found that the case implicated both local concerns (harm to waters, endangered species, and the local economy) and national interests (climate change), making the \u201clocal interests\u201d factor neutral. Montana Environmental Information Center v. Bernhardt<\/em>, No. 1:19-cv-00130 (D. Mont. order and findings and recommendations on motion to dismiss<\/a> and order denying motion to transfer<\/a> July 29, 2020).<\/p>\n

Federal Court Rejected U.S.\u2019s Remaining Claim in Challenge to California\u2019s Cap-and-Trade Program<\/strong><\/p>\n

The federal district court for the Eastern District of California ruled that California\u2019s cap-and-trade program for greenhouse gas emissions was not preempted under the Foreign Affairs Doctrine. First, the court found that the United States failed to identify \u201ca clear and express foreign policy that directly conflicts\u201d with the cap-and-trade program. Second, although the court found that California\u2019s regulations and an agreement linking its cap-and-trade program with Quebec\u2019s program had a \u201cbroad purpose\u201d that extends beyond the area of traditional state responsibility, the court concluded that the U.S. failed to show that the cap-and-trade program impermissibly intrudes on the federal government\u2019s foreign affairs power. The court therefore granted the defendants\u2019 motions for summary judgment on the Foreign Affairs Doctrine claim. Since the U.S.\u2019s other claims under the Treaty and Compact Clauses had already been dismissed, the court entered judgment in favor of the defendants. United States v. California<\/a><\/em>, No. 2:19-cv-02142 (E.D. Cal. July 17, 2020).<\/p>\n

In Challenge to Berkeley Natural Gas Ordinance, Federal Court Said Restaurant Association Needed to Improve Complaint<\/strong><\/p>\n

The federal district court for the Northern District of California granted in part the City of Berkeley\u2019s motion to dismiss a challenge to its ban on natural gas infrastructure in new buildings. The court granted the motion on ripeness and standing grounds, but granted the California Restaurant Association leave to file an amended complaint by August 14, 2020 to add allegations to address the grounds for dismissal. The court also indicated<\/a> during a hearing that the California Restaurant Association should do \u201ca better job\u201d of laying out its federal preemption argument. The court denied Berkeley\u2019s motion to dismiss on the remaining grounds but said Berkeley could raise them again in response to the amended complaint. California Restaurant Association v. City of Berkeley<\/a><\/em>, No. 4:19-cv-07668 (N.D. Cal. July 14, 2020).<\/p>\n

Federal Defendants Agreed to Issue Final Endangered Species Act Listing Determination on Wolverine in Lower 48 States<\/strong><\/p>\n

Conservation groups and federal defendants agreed to a dismissal of a lawsuit seeking to compel a final listing determination on the distinct population segment (DPS) of the North American wolverine in the lower 48 states. The federal defendants agreed to submit a final listing determination to the Federal Register<\/em> by August 31, 2020. The federal district court for the District of Montana ruled in 2016 that the U.S. Fish and Wildlife Service erred by dismissing the threats of climate change and small population size when it withdrew a proposal to list the wolverine DPS as threatened. Center for Biological Diversity v. Bernhardt<\/a><\/em>, No. 9:20-cv-00038 (D. Mont. July 2, 2020).<\/p>\n

California Court Set Aside Some Conditions in Landfill Permit but Said Climate Change Impacts and Other Factors Justified Other Conditions<\/strong><\/p>\n

A California Superior Court upheld climate change-related conditions in a permit for a landfill in Los Angeles County in a lawsuit brought by the landfill\u2019s owner-operator. Conditions that were intended to reduce or address climate change impacts included limitations on solid waste tonnage, a time limit on landfill operations, and a requirement for periodic reviews to determine whether more stringent conditions should be imposed. The court found that some conditions, including waste reduction and diversion program fees, should be set aside, though the court indicated it was possible that the County could make required findings to support the waste reduction and diversion program fees and other mitigation fees under the Mitigation Fee Act. Chiquita Canyon, LLC v. County of Los Angeles<\/a><\/em>, No. BS 171262 (Cal. Super. Ct. July 2, 2020).<\/p>\n

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

Challenges to Amended NEPA Regulations Raised Climate Change Concerns<\/strong><\/p>\n

Environmental groups filed lawsuits in three federal district courts challenging the Council on Environmental Quality\u2019s (CEQ\u2019s) amendments to the NEPA regulations. All three complaints raised concerns regarding how the amendments would impede consideration of climate change impacts.<\/p>\n