{"id":7094,"date":"2020-11-16T14:15:42","date_gmt":"2020-11-16T19:15:42","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=7094"},"modified":"2020-11-16T14:15:42","modified_gmt":"2020-11-16T19:15:42","slug":"november-2020-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2020\/11\/16\/november-2020-updates-to-the-climate-case-charts\/","title":{"rendered":"November 2020 Updates to the Climate Case Charts"},"content":{"rendered":"
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Portland, Oregon. Source: Gary Halvorson, Oregon State Archives<\/a><\/em><\/figcaption><\/figure>\n

By Margaret Barry and Korey Silverman-Roati<\/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> SINCE UPDATE # 139.<\/strong><\/p>\n

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

Oregon Supreme Court Said Public Trust Doctrine Did Not Impose Obligation to Protect Resources from Climate Change<\/strong><\/p>\n

The Supreme Court of Oregon rejected youth plaintiffs\u2019 arguments that the public trust doctrine should be expanded to encompass additional natural resources and that the doctrine imposes affirmative fiduciary obligations on the State to protect trust resources from substantial impairment caused by climate change. With respect to the scope of the doctrine, the Supreme Court said the public trust doctrine extends both to the State navigable waters and to the State\u2019s submerged and submersible lands. (A trial court had interpreted the scope more narrowly.) Although the court agreed with the plaintiffs that the doctrine \u201ccan be modified to reflect changes in society\u2019s needs,\u201d the court rejected the plaintiffs\u2019 \u201cexpansive test\u201d for determining which resources should be protected, finding that the plaintiffs\u2019 two-factor test\u2014(1) Is the resource not easily held or improved and (2) Is the resource of great value to the public for uses such as commerce, navigation, hunting, and fishing\u2014would fail to provide \u201cpractical limitations.\u201d The court therefore declined to expand the doctrine to cover additional resources, including the atmosphere. Regarding the State\u2019s obligations under the public trust doctrine, the court rejected the plaintiffs\u2019 contention that the doctrine imposes obligations like the obligations trustees of private trusts owe to beneficiaries. The court indicated that importing private trust principles \u201ccould result in a fundamental restructuring of the public trust doctrine and impose new obligations on the State.\u201d The chief justice dissented, writing that in her view the judicial branch has \u201ca role to play\u201d in addressing the harms of climate change. She said the court \u201ccan and should issue a declaration that the state has an affirmative fiduciary duty to act reasonably to prevent substantial impairment of public trust resources.\u201d\u00a0Chernaik v. Brown<\/em><\/a>, No. S066564 (Or. Oct. 22, 2020).<\/p>\n

<\/p>\n

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

First Circuit Affirmed Order Sending Rhode Island\u2019s Climate Case Back to State Court<\/strong><\/p>\n

The First Circuit Court of Appeals affirmed a district court order remanding to state court the State of Rhode Island\u2019s lawsuit that seeks relief from oil and gas companies for climate change injuries allegedly caused by the companies\u2019 actions. The First Circuit\u2014like the Fourth, Ninth, and Tenth Circuits in other climate change cases\u2014concluded that the scope of its appellate review was limited to whether the defendants properly removed the case under the federal-officer removal statute. The First Circuit stated that it was \u201cpersuaded that to allow review of every alleged ground for removal rejected in the district court\u2019s order would be to allow [the statutory exception allowing review of federal-officer removal] to swallow the general rule prohibiting review\u201d of remand orders. The First Circuit further concluded that federal-officer removal did not apply in this case, finding that the companies\u2019 actions in connection with three contracts with the federal government concerning oil and gas production did not have a nexus with Rhode Island\u2019s allegations that the companies engaged in misleading marketing about the impacts of products they sold in the state. The First Circuit issued its decision several weeks after the Supreme Court agreed to review the issue of the scope of appellate review of remand orders in Baltimore\u2019s case against energy companies. State court proceedings in Rhode Island\u2019s case were put on hold in August pending the U.S. Supreme Court\u2019s and Rhode Island Supreme Court\u2019s consideration of personal jurisdiction issues in unrelated cases.\u00a0Rhode Island v. Shell Oil Products Co.<\/em><\/a>, No 19-1818 (1st Cir. Oct. 29, 2020).<\/p>\n

Tenth Circuit Ordered Coal Company to Stop Preparation for Mining in Colorado Roadless Area<\/strong><\/p>\n

The Tenth Circuit Court of Appeals granted environmental groups\u2019 emergency motion for an injunction barring a coal company \u201cfrom imminently bulldozing additional drilling pads\u201d and \u201cdrilling methane ventilation boreholes in preparation for coal mining in the Sunset Roadless Area\u201d in Colorado. The Tenth Circuit ordered the injunction to remain in place pending consideration of the environmental groups\u2019 appeal of a district court order that declined to vacate mining lease modifications that authorized road construction in the Sunset Roadless Area. Although the Tenth Circuit vacated an exception to the Colorado Roadless Rule in March 2020, the district court concluded that it could not enjoin the coal companies\u2019 activities because all challenges to the mining lease modifications had been resolved in the federal defendants\u2019 favor.\u00a0High Country Conservation Advocates v. U.S. Forest Service<\/em><\/a>, No. 20-1358 (10th Cir. Oct. 29, 2020).<\/p>\n

D.C. Circuit Allowed EPA Amendments to Emission Standards for Oil and Gas Sector to Take Effect<\/strong><\/p>\n

On October 27, 2020, the D.C. Circuit denied emergency motions for a stay preventing the U.S. Environmental Protection Agency\u2019s amendments to the 2012 and 2016 new source performance standards for the oil and gas sector from taking effect. The court said the petitioners\u201420 states, three cities, and 10 environmental groups\u2014had not satisfied the \u201cstringent requirements for a stay pending court review.\u201d Judge Judith W. Rogers would have granted the motions for stay. The court\u2019s order also dissolved the administrative stay that had been in place since September 17, denied the environmental groups\u2019 motion for summary vacatur (because the \u201cmerits of the parties\u2019 positions are not so clear as to warrant summary action\u201d), granted motions to intervene, and established a briefing schedule, with the petitioners\u2019 briefs due on December 7, 2020 and briefing completed on February 10, 2021.\u00a0California v. Wheeler<\/em><\/a>, No. 20-1357 (D.C. Cir. Oct. 27, 2020).<\/p>\n

Ninth Circuit Directed District Court to Grant EPA More Time for Federal Implementation Plan for Landfill Emissions<\/strong><\/p>\n

The Ninth Circuit Court of Appeals ruled that a district court should have granted the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) request for modification of an injunction requiring EPA to issue a federal plan for implementation of emission guidelines for municipal landfills by November 2019. The emission guidelines\u2014adopted in August 2016\u2014were intended to reduce emissions of landfill gas and its components, including methane, from existing landfills. The Ninth Circuit held that because EPA, after the district court injunction, issued final rules that extended EPA\u2019s deadline for issuing the federal plan, the law that formed the basis of the district court\u2019s injunction had changed, and the district court abused its discretion by refusing to modify the injunction \u201ceven after its legal basis has evaporated.\u201d The Ninth Circuit was not persuaded by the plaintiff states\u2019 argument that \u201cprecedent requires a broad, fact-intensive inquiry into whether altering an injunction is equitable, even if the legal duty underlying the injunction has disappeared.\u201d The Ninth Circuit also found that modification of the injunction due to EPA\u2019s rulemaking action did not threaten separation of powers. The court wrote that ultimately it saw \u201ca greater threat to the separation of powers by allowing courts to pick and choose what law governs the executive branch\u2019s ongoing duties.\u201d\u00a0California v. EPA<\/em><\/a>, No. 19-17480 (9th Cir. Oct. 22, 2020).<\/p>\n

D.C. Circuit Merits Panel to Decide Most Issues Related to Administrative Record Content in Challenges to Light-Vehicle Standards; Briefing to Begin in January<\/strong><\/p>\n

In the cases challenging the revised greenhouse gas emission and fuel economy standards for light-duty vehicles, the D.C. Circuit Court of Appeals granted petitioner Competitive Enterprise Institute\u2019s (CEI\u2019s) motion to complete the record to the extent it requested the inclusion of EPA\u2019s December 2019 Integrated Science Assessment for Particulate Matter in the administrative record. CEI argued that it should be included because EPA explicitly relied on it. The D.C. Circuit referred the remainder of CEI\u2019s motion to the merits panel, along with the entirety of a motion by State and Municipal and Public Interest Petitioners to complete and supplement the record. The other documents CEI seeks to add to the record are two Clean Air Scientific Advisory Committee peer review reports; CEI argued that EPA Administrator Andrew Wheeler had said he considered these reports. The State and Municipal and Public Interest Petitioners asked that the record include certain documents related to interagency review; the petitioners said these documents were probative of their claim that EPA failed to exercise independent judgment or apply technical expertise. The D.C. Circuit\u2019s order also established the briefing schedule for the cases, with three initial briefs from petitioners due on January 14, 2021, respondents\u2019 brief due April 14, 2021, and reply briefs due June 1, 2021. The petitioners had asked for a more accelerated briefing schedule that would have allowed for oral argument in the current term; they had also requested that they be permitted to file five briefs.\u00a0Competitive Enterprise Institute v. National Highway Traffic Safety Administration<\/em><\/a>, No. 20-1145 (D.C. Cir. Oct. 19, 2020).<\/p>\n

California Federal Court Entered Final Judgment Vacating Repeal of 2016 Waste Prevention Rule After Wyoming Federal Court Vacated 2016 Rule<\/strong><\/p>\n

On October 29, 2020, the federal district court for the Northern District of California entered judgment vacating the 2018 final rule rescinding the U.S. Bureau of Land Management\u2019s 2016 Waste Prevention Rule. The federal defendants and trade group intervenor-defendants have appealed the court\u2019s July 2020 decision vacating much of the 2018 rule. On October 8, the District of Wyoming vacated the 2016 rule, with judgment entered on October 23. No appeals have been filed yet.\u00a0California v. Bernhardt<\/em><\/a>, No. 4:18-cv-05712 (N.D. Cal. Oct. 29, 2020).<\/p>\n

Montana Federal Court Denied Requests to Stop Work on Keystone Pipeline, Asked for More Briefing on Separation of Powers Issues<\/strong><\/p>\n

In two lawsuits challenging the 2019 Presidential Permit for the Keystone XL pipeline, the federal district court for the District of Montana denied requests to enjoin work on the pipeline. The court found that the plaintiffs failed to show \u201cat this juncture\u201d that they were likely to succeed on the merits of their claims and that they also failed to show they were likely to suffer irreparable injury. The court\u2014which concluded that the Presidential Permit authorized only a 1.2-mile\u00a0 border-crossing segment of the pipeline and not, as the plaintiffs argued, the additional 875 miles of pipeline in the U.S.\u2014found that alleged irreparable injuries outside the scope of what the permit authorized were \u201cbeyond the scope of the relief available.\u201d Although the court found that each side had \u201cvalid arguments for their side in the balance of equities and public interest,\u201d including the plaintiffs\u2019 allegations of climate change harms caused by Keystone\u2019s eventual operation, the court found that the \u201cweight of these factors remains unclear and fails to compel the granting of preliminary relief.\u201d<\/p>\n

In the lawsuit brought by Indigenous Environmental Network and North Coast Rivers Alliance, the court also denied motions to amend the complaint to add President Trump\u2019s executive order concerning permitting of facilities at international boundaries and to add a claim challenging a right-of-way permit from the U.S. Bureau of Land Management (BLM). The court rejected the former set of amendments on the grounds of futility, undue delay, and the plaintiffs\u2019 previous opportunity to amend, and the latter on the grounds of undue delay, unfair prejudice to the defendants and defendant-intervenors, and judicial economy.<\/p>\n

In the lawsuit led by the Rosebud Sioux Tribe, the court also rejected any addition of claims related to BLM\u2019s right-of-way permit. In addition, the court granted summary judgment to the defendants on the plaintiffs\u2019 treaty-based claims due to the court\u2019s determination that the Presidential Permit\u2019s scope was limited to the 1.2-mile segment and did not affect tribal land.<\/p>\n

In both cases, the court asked for supplemental briefing on the remaining constitutional issues, focused on separation of powers issues related to border-crossing pipeline permits.\u00a0Indigenous Environmental Network v. Trump<\/em><\/a>, No. 4:19-cv-00028 (D. Mont. Oct. 16, 2020);\u00a0Rosebud Sioux Tribe v. Trump<\/em><\/a>, 4:18-cv-00118 (D. Mont. Oct. 16, 2020).<\/p>\n

Federal Court Found No-Jeopardy Determination for Sea Turtles Failed to Sufficiently Address Climate Change<\/strong><\/p>\n

The federal district court for the District of Columbia cited failures to address climate change as one of the bases for finding that a biological opinion for continued authorization of the Southeast U.S. shrimp fisheries in federal waters was arbitrary and capricious. The biological opinion found that the fisheries would not jeopardize continued existence of the Atlantic populations of sea turtles. The court agreed with the plaintiff that the National Marine Fisheries Service (NMFS) had not provided a reasoned basis for its no-jeopardy conclusion because it did not explain how it reached the conclusion in light of significant effects from climate change that were discussed in other parts of the biological opinion. The court also found that the NMFS did not have a reasoned basis for the conclusion that changes in oceanic conditions would not substantially impact sea turtles since there was \u201csubstantial evidence\u201d in the record that climate change would have \u201csignificant impacts\u201d on sea turtles.\u00a0Oceana, Inc. v. Ross<\/em><\/a>, No. 15-cv-0555 (D.D.C. Oct. 9, 2020).<\/p>\n

Federal Court Vacated Negative Jurisdictional Determination for Salt Ponds Connected to San Francisco Bay<\/strong><\/p>\n

The federal district court for the Northern District of California vacated EPA\u2019s determination that the Redwood City Salt Ponds were not within the jurisdiction of the Clean Water Act, holding that EPA misapplied precedent regarding what constitutes \u201cfast land,\u201d which is not subject to federal jurisdiction. The court concluded that although levees built before the Clean Water Act\u2019s enactment would not be subject to Clean Water Act jurisdiction, the salt ponds themselves could remain subject to Clean Water Act jurisdiction because they are wet, not uplands, and have \u201cimportant interconnections\u201d to San Francisco Bay. Since EPA\u2019s negative jurisdictional determination was \u201csolely\u201d anchored in its finding that the salt ponds were \u201ctransformed into fast last prior to passage\u201d of the Clean Water Act, the court set aside the determination and remanded for evaluation of \u201cthe extent of nexus between the salt ponds and the Bay and the extent to which they significantly affect the chemical, physical, and biological integrity of the Bay and take into account all other factors required by law.\u201d The court\u2019s decision did not address the plaintiffs\u2019 allegations that the negative jurisdictional determination would exacerbate the consequences of sea level rise and impair California\u2019s ability to mitigate sea level rise impacts.\u00a0San Francisco Baykeeper v. EPA<\/em><\/a>, No. 3:19-cv-05941 (N.D. Cal. Oct. 5, 2020).<\/p>\n

Federal Court Satisfied with Agency\u2019s New Explanations About Short-Term Climate Impacts on Loggerhead Turtles<\/strong><\/p>\n

The federal district court for the District of Columbia found that a revised biological opinion prepared by the National Marine Fisheries Service sufficiently responded to two issues that the court ordered the NMFS to address in a 2015 decision. One of the issues concerned the discussion of short-term impacts of climate change in the biological opinion, which addressed the impact of seven fisheries on the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles. The 2015 decision directed the NMFS to \u201cmore clearly explain the connection between the record evidence of present and short-term effects caused by climate change, and the agency\u2019s conclusion that climate change will not result in any significant effects on the species in the short-term future.\u201d The court concluded that on remand the NMFS provided a reasoned basis for its conclusion about the short-term effects of climate change, noting that the NMFS had clarified \u201cthat while there is record evidence of past and expected future climate change, in the short-term these effects from climate change will not result in a \u2018significant effect\u2019 on sea turtles in the action area, specifically.\u201d The court also found that the NMFS had adequately responded to the court\u2019s identification of a need for further explanation of the conclusion that short-term effects on loggerheads would be negligible, given evidence in the record of rapid sea level rise in a 620-mile \u201chot spot\u201d on the East Coast. In addition, the court said its remand to the NMFS did not require the agency to update the administrative record with more recent climate change studies, and that there was no need for the court to assess the new studies\u2019 impacts on the NMFS\u2019s conclusion. The court noted that the NMFS had reinitiated consultation and was reviewing new information that had become available since 2013.\u00a0Oceana, Inc. v. Ross<\/em><\/a>, No. 1:12-cv-00041 (D.D.C. Oct. 1, 2020).<\/p>\n

Alabama Federal Court Dismissed Challenge to TVA Environmental Review of Rate Changes for Distributed Energy<\/strong><\/p>\n

The federal district court for the Northern District of Alabama dismissed on standing grounds a lawsuit asserting that the Tennessee Valley Authority\u2019s (TVA\u2019s) environmental review for rate changes that affected rates for distributed energy resources such as rooftop solar did not satisfy the requirements of the National Environmental Policy Act. The court agreed with TVA that individual members of the plaintiff organizations had failed to prove an injury \u201cfairly traceable\u201d to the rate change because the plaintiffs did not provide evidence that a decrease in investment in distributed energy resources would result in an increase in fossil fuel use. The court concluded, moreover, that even if the link could be proved, the plaintiffs failed to demonstrate the \u201crequisite geographic nexus between the alleged pollution and their particular interests.\u201d\u00a0Center for Biological Diversity v. Tennessee Valley Authority<\/em><\/a>, No. 3:18-cv-01446 (N.D. Ala. Sept. 30, 2020).<\/p>\n

Maine High Court Said State Law Would Not Preempt Local Ordinance Prohibiting Crude Oil Loading<\/strong><\/p>\n

The Maine Supreme Judicial Court answered certified questions from the First Circuit concerning state law preemption of a City of South Portland ordinance that prohibited bulk loading of crude oil onto vessels in the City\u2019s harbor. A federal district court rejected a challenge to the ordinance in 2018. The Maine high court said a license issued by the Maine Department of Environmental Protection for a marine oil terminal facility was not an \u201corder\u201d within the meaning of the Maine Coastal Conveyance Act that could have preemptive effect and, moreover, that the license was not in conflict with the ordinance, even if it could be considered an order. The court also concluded that the Coastal Conveyance Act as a whole did not preempt the City\u2019s ordinance by implication.\u00a0Portland Pipe Line Corp. v. City of South Portland<\/em><\/a>, No. Fed-20-40 (Me. Oct. 29, 2020).<\/p>\n

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

Maui County Filed Climate Change Suit Against Fossil Fuel Companies<\/strong><\/p>\n

On October 12, 20201, the County of Maui filed a lawsuit in Hawai\u2018i Circuit Court against fossil fuel companies seeking to hold them liable for climate change impacts. Defendants Chevron Corporation and Chevron U.S.A. Inc. removed the case to federal court on October 30 and indicated that all other joined and served defendants consented to removal. In its complaint, Maui alleged that the defendant companies were \u201cdirectly responsible for the substantial increase in all CO2<\/sub>\u00a0emissions between 1965 and the present\u201d and that but for the defendants\u2019 participation in \u201cdenialist campaigns\u201d to mislead the public about the role of their products in causing climate change, the impacts of climate change \u201cwould have been substantially mitigated or eliminated altogether.\u201d The adverse climate change impacts alleged to affect Maui include sea level rise and related flooding, inundation, erosion, and beach lose; extreme weather; ocean warming and acidification; increasingly scarce freshwater supplies; loss of habitat for endemic species; and social and economic consequences of these environmental changes. Maui asserted causes of action for public nuisance, private nuisance, strict liability failure to warn, negligent failure to warn, and trespass. The complaint asked the court for compensatory damages, equitable relief, attorneys\u2019 fees, punitive damages, disgorgement of profits, and costs of suit.\u00a0County of Maui v. Sunoco LP<\/em><\/a>, No. 2CCV-20-0000283 (Haw. Cir. Ct., filed Oct. 12, 2020).<\/p>\n

Developments in other cases brought by local governments or states against fossil fuel companies included:<\/p>\n