{"id":7214,"date":"2021-02-10T14:57:37","date_gmt":"2021-02-10T19:57:37","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=7214"},"modified":"2021-02-10T14:57:37","modified_gmt":"2021-02-10T19:57:37","slug":"february-2021-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2021\/02\/10\/february-2021-updates-to-the-climate-case-charts\/","title":{"rendered":"February 2021 Updates to the Climate Case Charts"},"content":{"rendered":"
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By Margaret Barry and Korey Silverman-Roati\u00a0\u00a0<\/em><\/p>\n

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Wikimedia Commons<\/a><\/figcaption><\/figure>\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> climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.<\/p>\n

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HERE ARE THE ADDITIONS TO THE\u00a0CLIMATE\u00a0CASE\u00a0CHART<\/a>\u00a0SINCE UPDATE # 142.<\/strong><\/p>\n

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

D.C. Circuit Vacated Trump EPA\u2019s Affordable Clean Energy Rule<\/strong><\/p>\n

On January 19, 2021, the D.C. Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency\u2019s (EPA\u2019s) Affordable Clean Energy Rule (ACE Rule) for greenhouse gas emissions from power plants rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply at and to an individual source. The court therefore vacated and remanded the ACE Rule\u2014which repealed the 2015 Clean Power Plan rule and in its place adopted a replacement rule that relied only on heat-rate improvements at individual plants. In concluding that Section 111 of the Clean Air Act does not limit EPA to identifying a \u201cbest system of emission reduction\u201d consisting only of controls \u201cthat can be applied at and to a stationary source,\u201d the D.C. Circuit\u2019s majority opinion first concluded that neither the text nor the statutory history, structure, and purpose compelled such a reading. Second, the D.C. Circuit ruled that EPA incorrectly invoked the \u201cmajor questions doctrine\u201d\u2014which requires a clear statement from Congress when an agency\u2019s regulatory action is of \u201cextraordinary\u201d significance\u2014to support its interpretation of Section 111. The court found that Congress and the courts had long recognized EPA\u2019s authority to regulate greenhouse gases from power plants under Section 111, and that the major questions doctrine did not apply to EPA\u2019s identification of the \u201cbest system of emission reduction.\u201d The court said Congress knew \u201cboth the scope and important of what it was doing\u201d when it gave EPA authority to set standards and that it \u201ccabined the EPA\u2019s authority with concrete and judicially enforceable statutory limitations.\u201d With respect to the significant regulatory consequences of the standards, the D.C. Circuit indicated that the consequences were \u201ca product of the greenhouse gas\u00a0problem<\/em>, not of the best-system\u2019s role in the solution,\u201d writing that \u201cany nationwide regulation of [power plants\u2019] greenhouse gas pollution will necessarily affect a broad swath of the Nation\u2019s electricity customers.\u201d The court also rejected EPA\u2019s contention that the major questions doctrine applied because the Clean Power Plan regulated the electric grid and not air pollution. Third, the D.C. Circuit held that the federalism canon\u2014requiring that Congress use \u201cexceedingly clear language\u201d to alter the balance of power between the federal government and the states\u2014did not support an interpretation limiting the best system of emission reduction to measures applied at and to the source. The D.C. Circuit also rejected two arguments by coal companies against the ACE Rule. First, the court found that EPA made and retained the requisite endangerment finding for regulation of carbon dioxide emissions from power plants. Second, the court found that EPA \u201ccorrectly and consistently\u201d interpreted the Clean Air Act to permit both regulation of a source\u2019s hazardous air pollutant emissions under Section 112 and emissions of other pollutants under Section 111(d). The D.C. Circuit also concluded that two petitioners\u2014Texas Public Policy Foundation and Competitive Enterprise Institute\u2014lacked organizational standing to challenge EPA\u2019s authority to promulgate the ACE Rule. Finally, the D.C. Circuit found that amendments to the regulations implementing Section 111(d)\u2014which extended the timeline for compliance\u2014lacked reasoned support. Because EPA\u2019s sole defense for repeal of the Clean Power Plan and replacement with the Affordable Clean Energy Rule was that the interpretation underlying the rule was the only permissible one, the D.C. Circuit vacated the ACE Rule and remanded to EPA. Judge Walker issued a separate opinion dissenting from the majority\u2019s conclusion that EPA had authority to regulate coal-fired power plants under both Section 111 and Section 112. Although he concluded that regulation of coal-fired power plants was foreclosed for this \u201cmore mundane reason\u201d and thus concurred in the vacating of the ACE Rule, Judge Walker also wrote that he doubted the validity of the Clean Power Plan\u2014which he characterized as \u201carguably one of the most consequential rules ever proposed by an administrative agency\u201d\u2014under the major questions doctrine. The court directed that issuance of the mandate be withheld until seven days after disposition of any petition for rehearing or petition for rehearing en banc.\u00a0<\/a>American Lung Association v. EPA<\/em><\/a>, No. 19-1140 (D.C. Cir. Jan. 19, 2021).<\/p>\n


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

D.C. Circuit Declined to Stay EPA\u2019s Amendments to Leak Detection and Repair Standards for Oil and Gas Sector<\/strong><\/p>\n

On January 15, 2021, the D.C. Circuit Court of Appeals denied a motion for partial stay pending review of EPA\u2019s amendment of leak detection and repair standards for the oil and gas sector. Judge Pillard would have granted the motion. On January 19, Western Energy Alliance moved for leave to intervene as a respondent outside the time provided for in the Federal Rules of Appellate Procedure. The challenged rule\u2014\u201cOil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration\u201d\u2014is one of the rules included on the non-exclusive\u00a0list<\/a>\u00a0of rules identified by the Biden administration for review under the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. EPA asked the court to hold these cases in abeyance pending its review of the rule.\u00a0Environmental Defense Fund v. Wheeler<\/em><\/a>, No. 20-1360 (D.C. Cir. Jan. 15, 2021).<\/p>\n

Montana Federal Court Found Failure to Take a Hard Look at Costs of Greenhouse Gas Emissions in Review of Coal Mine Expansion<\/strong><\/p>\n

The federal district court for the District of Montana found flaws in an updated environmental assessment for a mining plan modification that extended the life of the Spring Creek Mine, a surface coal mine in Montana. In\u00a0earlier litigation<\/a>\u00a0challenging the same mining plan modification, the court found procedural and substantive violations of the National Environmental Policy Act (NEPA). In the instant case, the court agreed with a magistrate judge\u2019s findings that the Office of Surface Mining Reclamation and Enforcement (OSM) failed to take a hard look at the impacts of coal transportation, failed to adequately consider the effects of downstream non-greenhouse gas emissions, and failed to quantify costs associated with greenhouse gas emissions even though OSM quantified the mine expansion\u2019s socioeconomic benefits. Like the magistrate judge, the district court rejected claims that OSM improperly segmented its analysis and ignored cumulative impacts of the entire Spring Creek Mine. The court ordered OSM to prepare corrective NEPA analysis and deferred vacatur of mining plan approval for 240 days for preparation of the analysis.\u00a0<\/a>WildEarth Guardians v. Bernhardt<\/em><\/a>, No. 17-cv-80 (D. Mont. Feb. 3, 2021).<\/p>\n

After Denying Motions to Stop Construction Activities in National Petroleum Reserve, Alaska Federal Court Enjoined Certain Work for Two Weeks<\/strong><\/p>\n

On February 1, 2021, the federal district court for the District of Alaska denied motions for preliminary relief barring certain construction activities related to a major oil and gas development project in the National Petroleum Reserve in Alaska (NPR-A). First the court found that the plaintiffs\u2019 NEPA claims were likely time-barred under the Naval Petroleum Reserves Production Act (NPRPA), which requires that actions seeking judicial review under NEPA \u201cconcerning oil and gas leasing\u201d in NPR-A be brought within 60 days after notice of the availability of an environmental impact statement is published in the\u00a0Federal Register<\/em>. With respect to claims under the Endangered Species Act, the court found that that the plaintiffs failed to demonstrate that Southern Beaufort Sea polar bears would be irreparably injured before the court issued a ruling on the merits. On February 6, the court issued an injunction on certain construction activities through February 20 or until the Ninth Circuit rules on any motions for injunction pending appeal. The district court noted that the application of the NPRPA\u2019s judicial review provision was one of first impression in the Ninth Circuit. The court further indicated that if the claim is not time-barred, the plaintiffs \u201ccould well be likely to succeed on the merits\u201d of their claim that the defendants\u2019 analysis of greenhouse gas emissions violated NEPA. The court also concluded that the plaintiffs had established a likelihood of irreparable harm.\u00a0Sovereign I\u00f1upiat for a Living Arctic v. Bureau of Land Management<\/em><\/a>, Nos. 3:20-cv-00290 & 3:20-cv-00308 (D. Alaska Feb. 1, 2021).<\/p>\n

Magistrate Judge Recommended Dismissal of Citizen Suit Challenging Permitting for Underground Coal Mine<\/strong><\/p>\n

A magistrate judge in the federal district court for the District of Colorado recommended that the court grant an underground coal mine operator\u2019s motion to dismiss a Clean Air Act citizen suit that alleged the mine required a Prevention of Significant Deterioration construction permit and a Title V operating permit. The magistrate judge concluded that the suit was barred by the statute of limitations.\u00a0<\/a>WildEarth Guardians v. Mountain Coal Co.<\/em><\/a>, No. 1:20-cv-01342 (D. Colo. Jan. 26, 2021).<\/p>\n

Montana Federal Court Rejected Request to Halt Coal Mining in Expansion Area<\/strong><\/p>\n

The federal district court for the District of Montana denied a motion for a preliminary injunction enjoining mining operations in an expansion area for the Rosebud Mine, a coal mine in Montana. The court noted that the Office of Surface Mining Reclamation and Enforcement\u00a0had approved the mine\u2019s expansion in June 2019 but that the plaintiffs had not sought the preliminary injunction until August 2020. The court stated that \u201c[u]nfortunately, the Court does not see what harm a preliminary injunction could prevent now that excavation in [the expansion area] has been ongoing since at least May 2020 and coal extraction since August 2020.\u201d The court also found that the plaintiffs had not met their burden of demonstrating that a preliminary injunction would prevent irreparable harm from the release of greenhouse gases. The court indicated that the plaintiffs had conceded that halting mining in the expansion area would not affect the level of greenhouse gas emissions from a nearby power plant that used coal from the mine.\u00a0<\/a>Montana Environmental Information Center v. Bernhardt<\/em><\/a>, No. 1:19-cv-00130 (D. Mont. Jan. 25, 2021).<\/p>\n

Alaska Federal Court Declined to Bar Issuance of Leases on Arctic National Wildlife Refuge<\/strong><\/p>\n

The federal district court for the District of Alaska denied without prejudice motions for a preliminary injunction barring issuance of oil and gas leases and authorization of seismic exploration on the Arctic National Wildlife Refuge. The court found that the U.S. Bureau of Land Management (BLM) had not taken final action on a seismic survey proposal, but that if BLM approved the proposal, the plaintiffs could seek injunctive relief at that time. The court further found that the plaintiffs did not establish a likelihood of imminent irreparable harm since the challenged Record of Decision did not authorize any immediate \u201con-the-ground activities\u201d and plaintiffs did not establish a likelihood such ground-disturbing activities would occur before the court\u2019s final ruling on the merits.\u00a0<\/a>Gwich\u2019in Steering Committee v. Bernhardt<\/em><\/a>, Nos. 3:20-cv-00204, 3:20-cv-00205, 3:20-cv-00223 (D. Alaska Jan. 5, 2021).<\/p>\n

Vermont Supreme Court Affirmed Public Utility Commission Approval for Solar Project<\/strong><\/p>\n

The Vermont Supreme Court upheld the Vermont Public Utility Commission\u2019s decision granting a certificate of public good for construction and operation of a solar net-metering system. The arguments of the neighbors challenging the project included that the Commission erred in finding that the project would not have an undue adverse effect on greenhouse gases. The court concluded the neighbors had standing to make this argument, but found that the Commission\u2019s finding that the project would not have an undue effect on greenhouse gas emissions was not clearly erroneous even though only \u201cminimal evidence\u201d\u2014the project manager\u2019s testimony that construction emissions would be similar to emission of projects of comparable size\u2014supported the finding. Because the neighbors produced no other testimony and relied \u201cmerely on speculation that the excavation, regrading, and moving of materials would produce undue impacts,\u201d the court upheld the Commission\u2019s findings.\u00a0<\/a>In re Acorn Energy Solar 2, LLC<\/em><\/a>, No. 2019-398 (Vt. Jan. 15, 2021).<\/p>\n

Minnesota Court and D.C. Federal Court Declined to Stop Construction of Enbridge Line 3 Pipeline<\/strong><\/p>\n

The Minnesota Court of Appeals denied motions to stay the Minnesota Public Utilities Commission\u2019s decisions authorizing Enbridge Energy, LP\u2019s Line 3 pipeline replacement project. The court agreed that one of the movants\u2014Friends of the Headwaters\u2014was precluded from seeking a stay because it had not sought a stay from the Commission. On the merits of the stay motion by the Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe, the court found that the Commission\u2019s denial of a stay was not an abuse of discretion. The court was not persuaded that completion of construction of the pipeline would moot the appeals and concluded both that the Commission was not required to consider whether the appeal raised substantial issues and also that it was not clear that the appeals raised substantial questions that would override other factors to require a stay.\u00a0<\/a>In re Enbridge Energy, LP<\/em><\/a>, Nos. A20-1071 (Minn. Ct. App. Feb. 2, 2021).<\/p>\n

On February 7, 2021, the federal district court for the District of Columbia denied the motion by Red Lake Band, White Earth Band, and other plaintiffs\u2019 for a preliminary injunction in their case challenging U.S. Army Corps of Engineers permits for the pipeline project. The court, which did not address the plaintiffs\u2019 arguments regarding alleged inadequacies in the climate change-related analyses, found that the plaintiffs failed to demonstrate a likelihood of success on the merits or that they would suffer irreparable harm.\u00a0Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers<\/em><\/a>, No. 1:20-cv-03817 (D.D.C. Feb. 7, 2021).<\/p>\n

Colorado Court Ruled on Venue for Colorado Local Governments\u2019 Climate Change Claims<\/strong><\/p>\n

A Colorado District Court in Boulder County denied fossil fuel company defendants\u2019 motion to transfer the City of Boulder and Board of County Commissioners of Boulder County\u2019s action seeking damages for climate change harms to Denver County District Court, but ruled that venue for the claims of the third plaintiff\u2014the Board of County Commissioners of San Miguel County\u2014would only be proper in San Miguel County. The court found that a forum selection clause in a 2009 Master Contract between one of the defendants and San Miguel County for sale and purchase of asphalt that specified Denver as the venue did not apply; nor did the forum selection clauses in \u201cConfirmation Contracts\u201d that the defendant and San Miguel County executed in 2018 and 2019 after this lawsuit commenced. The court found that the public nuisance venue statute did not apply because the plaintiffs sought damages, not an injunction to abate the nuisance; the court also found that venue was not proper in Boulder County under the venue statute for tort actions because the plaintiffs did not satisfy their burden of demonstrating that the alleged tortious conduct and deceptive trade practices did not occur in the county. In addition, the court declined to find venue was proper in Boulder County based on the defendant\u2019s subsidiary\u2019s production of fossil fuels in the county. The court agreed, however, with the City and County of Boulder that venue was proper under the statute governing venue in actions affecting real property because the City and County alleged direct injury to real property in the county and sought remedies related to that property. The court further found that the plaintiffs conceded that venue in Boulder County was not proper for San Miguel under this statute. Counsel for San Miguel County\u00a0indicated<\/a>\u00a0that claims against a defendant that did not join the venue transfer motion would continue to be heard in Boulder County.\u00a0<\/a>County Commissioners of Boulder County v. Suncor Energy USA<\/em><\/a>, No. 2018CV30349 (Colo. Dist. Ct. Jan. 25, 2021).<\/p>\n

Town of Windsor Repealed \u201cReach Code\u201d to Settle Developer Lawsuits but Court Expressed Skepticism About Challenge to City of Santa Rosa Natural Gas Ban<\/strong><\/p>\n

On January 6, 2021, the Town Council for Windsor, California\u00a0voted<\/a>\u00a0to rescind an all-electric \u201creach code\u201d adopted by the Town in 2019. The Town\u00a0reportedly<\/a>\u00a0could not sufficiently fund its defense of the law, which was challenged by two developers. The agenda for the Town Council\u2019s meeting indicated that the Town had reached a negotiated settlement with the developers that required the repeal of the ordinance and portions of a related ordinance. In a separate case in which one of the developer\u2019s challenged the City of Santa Rosa\u2019s natural gas ban, the court issued a tentative ruling that would deny the developer\u2019s request that the court order the City to set aside its adoption of the reach code. The court\u00a0reportedly<\/a>\u00a0was not persuaded by the developer\u2019s argument that the City did not account for \u201cunusual circumstances\u201d such as wildfires and electric power blackouts that could cause significant impacts under an all-electric code.\u00a0<\/a>Gallaher v. Town of Windsor<\/em><\/a>, No. SCV-265553 (Cal. Super. Ct. Jan. 6, 2021);\u00a0Gallaher v. City of Santa Rosa<\/em><\/a>, No. SCV265711 (Cal. Super. Ct. Jan. 27, 2021).<\/p>\n

California Court Rejected Claims of Failure to Consider Future Sea Level Rise in Review of Shoreline Residential Project<\/strong><\/p>\n

A California Superior Court rejected a challenge under the California Environmental Quality Act to a residential development planned for the shoreline of San Francisco Bay. The petitioners had asserted that new information about the rate of sea level rise combined with more detailed information about the project\u2019s design showed that impacts would be more severe than was disclosed in an environmental impact report prepared in 2015. The court\u00a0reportedly<\/a>\u00a0ruled that the sea level rise issue was not relevant because potential flooding events would be \u201cissues of impact of the environment on a project and not issues of the project\u2019s impact on the environment.\u201d\u00a0<\/a>Citizens Committee to Complete the Refuge v. City of Newark<\/em><\/a>, No. RG19046938 (Cal. Super. Ct. Dec. 24, 2020).<\/p>\n

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

Supreme Court Held Oral Argument on Scope of Appellate Review of Remand Order in Baltimore Climate Case; Certiorari Petition Filed in San Francisco and Oakland Case<\/strong><\/p>\n

On January 19, 2021, the U.S. Supreme Court heard oral argument in fossil fuel companies\u2019 appeal of a Fourth Circuit Court of Appeals decision affirming an order remanding to state court the City of Baltimore\u2019s climate change case against the companies. The justices are considering the question of whether the scope of appellate review of the remand order extends to all of the bases for removal rejected by the district court, or only to the district court\u2019s rejection of removal under the federal-officer removal statute. Coverage of the oral argument is available\u00a0here<\/a>.\u00a0<\/a>BP p.l.c. v. Mayor & City Council of Baltimore<\/em><\/a>, No. 19-1189 (U.S. Jan. 19, 2021).<\/p>\n

Other developments in state and local governmental cases seeking to hold fossil fuel companies liable for contributing to climate change include the following:<\/p>\n