{"id":7594,"date":"2021-09-10T11:15:29","date_gmt":"2021-09-10T16:15:29","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=7594"},"modified":"2021-09-10T11:15:29","modified_gmt":"2021-09-10T16:15:29","slug":"september-2021-updates-to-the-climate-case-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2021\/09\/10\/september-2021-updates-to-the-climate-case-charts\/","title":{"rendered":"September 2021 Updates to the Climate Case Charts"},"content":{"rendered":"
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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 U.S. and non-U.S. climate litigation charts. If 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 # 149.<\/strong><\/p>\n

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

D.C. Circuit Found Deficiencies in Climate Change and Environmental Justice Analyses for Texas LNG Export Terminals<\/strong><\/p>\n

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) failed to adequately analyze the climate change and environmental justice impacts of two liquefied natural gas (LNG) export terminals on the Brownsville Shipping Channel in Texas and two pipelines that would carry LNG to one of the terminals. The court dismissed a challenge to a third LNG terminal on the Channel as moot after the developer informed FERC that the project would not go forward. With respect to climate change, the D.C. Circuit found that FERC failed to address the significance of a National Environmental Policy Act (NEPA) regulation that the petitioners argued required use of the social cost of carbon or another methodology to assess the impacts of the projects\u2019 greenhouse gas emissions. The regulation provides that \u201c[i]f \u2026 information relevant to reasonably foreseeable significant adverse impacts cannot be obtained \u2026 because the means to obtain it are not known, the agency shall include within the environmental impact statement \u2026 [t]he agency\u2019s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.\u201d The D.C. Circuit agreed with the petitioners that FERC was required to address the significance of this regulation and directed FERC to explain on remand whether the regulation calls for application of the social cost of carbon protocol or another framework. The D.C. Circuit also found that FERC arbitrarily limited the scope of its environmental justice analysis to communities within two miles of the facilities despite acknowledging that impacts would extend beyond a two-mile radius. Because of the deficiencies in the NEPA analyses, the court also found that FERC\u2019s determinations of public interest and convenience under the Natural Gas Act (NGA) were deficient. The court remanded without vacatur, finding that it was reasonably likely that FERC could redress the deficiencies under NEPA and the NGA on remand and that vacating FERC\u2019s orders \u201cwould needlessly disrupt completion of the projects.\u201d In an unpublished judgment, the court rejected the petitioners\u2019 other NEPA arguments regarding project design and capacity and cumulative ozone impacts.\u00a0<\/a>Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission<\/em><\/a>, No. 20-1045 (D.C. Cir. Aug. 3, 2021);\u00a0Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission<\/em><\/a>, Nos. 20-1093, 20-1094 (D.C. Cir. Aug. 3, 2021).<\/p>\n


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

New Jersey Federal Court Remanded Hoboken\u2019s Climate Case Against Fossil Fuel Companies to State Court<\/strong><\/p>\n

On September 8, 2021, a federal district court in New Jersey granted the City of Hoboken\u2019s motion to remand to state court its climate change lawsuit against oil and gas companies. On September 9, the court granted the defendants\u2019 request for a temporary stay of execution of the remand order. As a threshold matter, the court found that it would not be prudent to wait for federal courts of appeal to issue decisions in fossil fuel companies\u2019 appeals of remand orders in other climate change cases. The court noted that it had no indication of when the courts of appeal would address the issues and, \u201c[c]ritically,\u201d that no such appeal was pending in the Third Circuit. On the merits of removal, the court first found that none of the exceptions to the well-pleaded complaint rule applied. The court held that the City\u2019s claims were not completely preempted by the Clean Air Act and also was not persuaded by the companies\u2019 argument that the claims necessarily arose under federal common law. The court found that, as pled, the complaint was \u201cpremised solely on state law\u201d and that\u00a0City of New York v. Chevron Corp.<\/em>\u2014in which the Second Circuit affirmed dismissal of New York City\u2019s climate change case against oil and gas companies\u2014\u201cmerely suggests that Defendants may ultimately prevail with their federal preemption defense argument,\u201d not that there was a basis for federal subject matter jurisdiction. The New Jersey court also found no basis for\u00a0Grable\u00a0<\/em>jurisdiction, rejecting the companies\u2019 arguments that the City\u2019s claims necessarily raised substantial and actually disputed issues of federal law such as First Amendment issues or issues addressed by federal environmental statutes. The court also found that the \u201cchain of causation\u201d between the defendants\u2019 activities on the outer continental shelf and the City\u2019s claims was \u201ctoo attenuated\u201d for the Outer Continental Shelf Lands Act to provide a basis for jurisdiction. In addition, the court rejected the federal-officer removal statute, federal enclave jurisdiction, and the Class Action Fairness Act as grounds for removal.\u00a0<\/a>City of Hoboken v. Exxon Mobil Corp.<\/em><\/a>, No. 2:20-cv-14243 (D.N.J. Sept. 8, 2021).<\/p>\n

Federal Court Stayed Remand Order in Minnesota\u2019s Climate Case Against Fossil Fuel Industry, Denied Attorney Fees<\/strong><\/p>\n

The federal district court for the District of Minnesota stayed its order remanding Minnesota\u2019s climate change lawsuit against the fossil fuel industry. The court found that a stay was prudent both due to uncertainty about the impacts on the Eighth Circuit\u2019s consideration of the remand order of the Supreme Court\u2019s decision in\u00a0Mayor & City Council of Baltimore v. BP p.l.c.<\/em>\u00a0and the Second Circuit\u2019s decision in\u00a0City of New York v. Chevron Corp.<\/em>\u00a0and also because it was possible there might be a final disposition in state court prior to resolution of the Eighth Circuit\u2019s appeal, which would be a \u201cconcrete and irreparable\u201d injury to the defendants. The court also found that judicial economy and conservation of resources weighed in favor of a stay. Because the balance of factors was likely to shift over time, the court said it would reevaluate the stay if the Eighth Circuit appeal was not resolved in 12 months. The court also denied Minnesota\u2019s motion for attorney fees, concluding that \u201cremoval advanced critical legal questions that have not yet been resolved by the higher courts.\u201d In the Eighth Circuit, Minnesota filed its response brief supporting affirmance of the remand order, and six amicus briefs were filed in support of affirmance. The amicus briefs were filed by 16 states and the District of Columbia; organizations representing local governments; Natural Resources Defense Council; Public Citizen; scholars of federal relations and federal courts; and individual \u201cscholars and scientists with strong interests, education, and experience in the environment and the science of climate change,\u201d along with non-profit environmental and science organizations.\u00a0<\/a>Minnesota v. American Petroleum Institute<\/em><\/a>, No. 0:20-cv-01636 (D. Minn. Aug. 20, 2021), No. 21-1752 (8th Cir.).<\/p>\n

Alaska Federal Court Vacated Federal Approvals of Major Oil Development Project in National Petroleum Reserve<\/strong><\/p>\n

The federal district court for the District of Alaska found deficiencies in federal defendants\u2019 reviews and approvals of ConocoPhillips Alaska, Inc.\u2019s (ConocoPhillips\u2019) Willow Master Development Plan in the National Petroleum Reserve in Alaska, which was anticipated to produce approximately 586 million barrels of oil over a 30-year life. The court therefore vacated the U.S. Bureau of Land Management\u2019s (BLM\u2019s) approval of the project and the U.S. Fish and Wildlife Service\u2019s (FWS\u2019s) biological opinion. Under NEPA, the court first found that the Naval Petroleum Reserves Production Act\u2019s 60-day time limit for seeking judicial review of environmental impact statements did not apply and that NEPA claims were therefore timely. The court then found that BLM\u2019s exclusion of foreign emissions in its alternatives analysis was arbitrary and capricious because its rationale \u201csuffers from the same flaws the Ninth Circuit identified\u201d in a December 2020\u00a0decision<\/a>\u00a0involving offshore drilling in the Beaufort Sea. Although the district court acknowledged that BLM provided \u201ca lengthier explanation\u201d of its reasons for not quantifying foreign emissions than the Bureau of Ocean Energy Management provided in the earlier case, the court found that BLM still did not \u201cthoroughly explain\u201d why an estimate of foreign emissions was impossible. The district court also rejected the defendants\u2019 and ConocoPhillips\u2019 assertion that the failure to quantify foreign emissions was inconsequential because BLM could not have adopted the no-action alternative given ConocoPhillips\u2019 existing leasing rights. In addition, the court found that BLM acted contrary to law by failing to consider a statutory directive to give \u201cmaximum protection\u201d to surface values in the Teshekpuk Lake Special Area. Under the Endangered Species Act, the court vacated the FWS\u2019s biological opinion because the incidental take statement lacked \u201cthe requisite specificity of mitigation measures for the polar bear\u201d and because the take finding for the polar bear was arbitrary and capricious. The court ruled for the federal defendants under other claims under NEPA and the Clean Water Act, including an argument that the defendants did not take a hard look at cumulative impacts of oil and gas development activities and climate change on fish and polar bears.\u00a0<\/a>Sovereign I\u00f1upiat for a Living Arctic v. Bureau of Land Management<\/em><\/a>, No. 3:20-cv-00290 (D. Alaska Aug. 18, 2021).<\/p>\n

Ninth Circuit Said Appeals in Keystone XL Nationwide Permit Case Were Moot<\/strong><\/p>\n

Because the U.S. Army Corps of Engineers had issued a new nationwide permit (NWP) superseding NWP 12, the Ninth Circuit Court of Appeals dismissed, for lack of jurisdiction, appeals of a district court ruling that NWP 12\u2019s issuance did not comply with Endangered Species Act consultation requirements and that the Corps could not rely on NWP 12 to authorize the Keystone XL pipeline. The Ninth Circuit said the new issuance of NWP 12 rendered the appeals moot and ordered the district court to dismiss the underlying claim. The Ninth Circuit declined, however, to take a position on whether the underlying cases were moot in their entirety and also declined to vacate any district court decisions. The federal district court for the District of Montana is to consider these issues on remand.\u00a0<\/a>Northern Plains Resource Council v. U.S. Army Corps of Engineers<\/em><\/a>, No. 20-35412 (9th Cir. Aug. 11, 2021).<\/p>\n

Federal Court in Missouri Dismissed States\u2019 Challenges to Biden Actions on Social Cost of Greenhouse Gases<\/strong><\/p>\n

The federal district court for the Eastern District of Missouri held that Missouri and 12 other states lacked standing for their claims challenging executive actions related to establishing a social cost of greenhouse gas emissions. The court also held that these claims were not ripe. The court found that due to the \u201cinherently speculative nature\u201d of their alleged harm, the plaintiff states failed to establish any of the three elements of standing: injury in fact, causation, or redressability. The court was not persuaded that the states were \u201centitled to special solicitude\u201d that would excuse them from meeting these standing requirements, or that their inability to file comments on interim estimates for the social cost of greenhouse gases was a \u201cprocedural injury\u201d that afforded them standing. With respect to ripeness, the court found that any impact of the executive actions could not be felt immediately and that the states would have \u201cample opportunity to bring legal challenges to particular regulations\u201d that allegedly inflicted an imminent, concrete, and particularized injury. The states appealed the dismissal of the case.\u00a0<\/a>Missouri v. Biden<\/em><\/a>, No. 4:21-cv-00287 (E.D. Mo. Aug. 31, 2021).<\/p>\n

Tennessee Federal Court Allowed Conservation Groups to Proceed with Challenge to TVA Long-Term Contracts<\/strong><\/p>\n

The federal district court for the Western District of Tennessee denied the Tennessee Valley Authority\u2019s (TVA\u2019s) motion to dismiss a lawsuit challenging long-term contracts for electricity between TVA and local utilities. The court concluded that the plaintiffs\u2014three conservation groups\u2014had standing for their claims under the TVA Act of 1933 and NEPA, and also that the court had the authority to review whether the long-term contracts violated the TVA Act. The plaintiffs\u2019 allegations include that the long-term agreements will result in greater emissions of greenhouse gases and other pollutants because insulation from a competitive market will constrain development of renewable energy. The complaint also alleges that the long-term agreements are likely to result in increased energy consumption and will therefore exacerbate greenhouse gas emissions and other impacts.\u00a0<\/a>Protect Our Aquifer v. Tennessee Valley Authority<\/em><\/a>, No. 2:20-cv-02615 (W.D. Tenn. Aug. 12, 2021).<\/p>\n

Tribal Sovereign Immunity Compelled Dismissal of Challenge to Wind Energy Lease in California<\/strong><\/p>\n

The federal district court for the Southern District of California dismissed a lawsuit challenging the U.S. Bureau of Indian Affairs\u2019 (BIA\u2019s) approval of a lease between the Campo Band of Diegueno Mission Indians (the Tribe) and a renewable energy company for development of a wind energy project. The plaintiffs alleged, among other things, that the environmental impact statement failed to consider the project\u2019s entire life cycle greenhouse gas emissions. In its order dismissing the case, the court concluded that the Tribe was a necessary party that could not be joined due to tribal sovereign immunity. The court further found that allowing the case to proceed absent the Tribe would prejudice the Tribe, and that the developer and BIA could not adequately represent the Tribe\u2019s interests. Given this \u201cunmitigable prejudice,\u201d the court concluded \u201cthat this litigation cannot, in good conscience, continue in the Tribe\u2019s absence.\u201d The court rejected the plaintiffs\u2019 contention that the action should be allowed to proceed under the \u201cpublic rights\u201d exception for litigation that transcends private interests and seeks to vindicate a public right. The plaintiffs appealed the court\u2019s decision, which also overruled certain evidentiary objections and a motion to strike by the plaintiffs.\u00a0<\/a>Backcountry Against Dumps v. U.S. Bureau of Indian Affairs<\/em><\/a>, No. 3:20-cv-02343 (S.D. Cal.\u00a0 Aug. 6, 2021).<\/p>\n

New Mexico Federal Court Rejected New NEPA Challenge to Drilling Approvals in Mancos Shale<\/strong><\/p>\n

The federal district court for the District of New Mexico dismissed a lawsuit challenging BLM\u2019s NEPA review of 370 applications for permits to drill (APDs) in the Mancos Shale\/Gallup Sandstone formation of the San Juan Basin. The court noted that this case \u201coriginated from a separate, extensively litigated case\u201d (see\u00a0here<\/a>) challenging more than 300 APDs in which the Tenth Circuit ultimately found that BLM failed to adequately consider cumulative impacts on water resources in five environmental assessments (EAs) but otherwise rejected the plaintiffs\u2019 claims. BLM subsequently completed an \u201cEA Addendum\u201d to supplement the NEPA analysis and concluded for all APDs that the supplemental analysis in conjunction with the earlier analysis \u201cdid not demonstrate that the APDs in question would affect the human environment or result in cumulative impacts not already disclosed.\u201d The district court found that BLM had not predetermined its decision to grant the subject APDs and also concluded that BLM\u2019s supplementation was permissible. The district court noted that the EA Addendum reanalyzed several factors, including cumulative effects of greenhouse gas emissions, \u201cthough the Tenth Circuit did not explicitly require it to do so.\u201d The plaintiffs contended that the analysis of greenhouse gas emissions was flawed in several ways, and the court rejected each of these contentions. First, the court said the plaintiffs\u2019 argument that BLM merely quantified greenhouse gas emissions without analyzing them was without merit. Second, the court found that BLM\u2019s decision to use a 100-year time horizon instead of a 20-year timeframe to analyze the impacts of greenhouse gas emissions \u201cdoes not misrepresent or diminish the impact of its environmental conclusions, and is consistent with the law and other similar federal emissions practices.\u201d Third, the court found that the plaintiffs did not establish that BLM failed to consider the APDs\u2019 cumulative impacts on greenhouse gas emissions. The court characterized the plaintiffs\u2019 argument as a request that the court \u201crequire an agency to codify Plaintiffs\u2019 beliefs about climate change and its origins in federal oil drilling in the agency\u2019s NEPA documentation.\u201d Fourth, the court found that NEPA did not require that BLM evaluate greenhouse gas emissions in the context of carbon budgets. The court\u2019s analysis of the merits was conducted in the context of a preliminary injunction motion, but the court said further analysis or argumentation would not change its disposition as to the merits and therefore granted the defendants\u2019 request that the plaintiffs\u2019 claims be dismissed with prejudice.\u00a0<\/a>Din\u00e9 Citizens Against Ruining Our Environment v. Bernhardt<\/em><\/a>, No. 1:19-cv-00703 (D.N.M. Aug. 3, 2021).<\/p>\n

Rehearing Denied in St. Louis Gas Pipeline Case<\/strong><\/p>\n

The D.C. Circuit Court of Appeals denied pipeline developers\u2019 petitions for panel rehearing and rehearing en banc of the court\u2019s decision vacating the Federal Energy Regulatory Commission\u2019s approvals for a natural gas pipeline in the St. Louis area.\u00a0<\/a>Environmental Defense Fund v. Federal Energy Regulatory Commission<\/em><\/a>, No. 20-1017 (D.C. Cir. Aug. 5, 2021).<\/p>\n

Minnesota Court Affirmed Water Quality Certification for Line 3 Replacement Project<\/strong><\/p>\n

The Minnesota Court of Appeals affirmed the issuance of a water quality certification under Clean Water Act Section 401 for the Line 3 replacement project proposed by Enbridge Energy LP. The project involves replacing an existing pipeline that transports crude oil with a new pipeline using a different route. As a threshold matter, the Court of Appeals rejected the argument that the issuance of a final Section 404 permit for the Line 3 project mooted the appeal. On the merits, the court found that the Section 401 certification was not affected by legal error and was supported by substantial evidence in the record. Among the arguments rejected by the court was the contention that the Minnesota Pollution Control Agency erred by failing to consider the effects of climate change in its analysis of whether the project would violate state water quality standards. The court said this argument did not identify a rule that was allegedly violated but instead challenged \u201cthe adequacy of the agency\u2019s analysis of relevant facts in evaluating potential environmental effects.\u201d The court therefore found that it was required to defer to the agency\u2019s application of technical knowledge and expertise.\u00a0<\/a>In re Enbridge Line 3 Replacement Project Section 401 Water Quality Certification<\/em><\/a>, No. A20-1513 (Minn. Ct. App. Aug. 30, 2021).<\/p>\n

Minnesota Court of Appeals Upheld Approvals for Utility\u2019s Stake in Wisconsin Power Plant<\/strong><\/p>\n

The Minnesota Court of Appeals affirmed the Minnesota Public Utilities Commission\u2019s approval of a utility\u2019s affiliated-interest agreements related to the utility\u2019s stake in a new natural gas-fired power plant in Wisconsin. In a previous decision, the Court of Appeals found that the Commission erred by approving the agreements without complying with the Minnesota Environmental Policy Act. The Minnesota Supreme Court reversed this ruling. On remand from the Supreme Court, the Court of Appeals addressed the remaining issues of whether substantial evidence supported the Commission\u2019s determinations that the power plant was needed and that the power plant would serve the public interest better than a renewable-resource alternative. The Court of Appeals found that substantial evidence supported the Commission\u2019s determinations that the power plant was needed as a low-cost source of energy and because its dispatchable capacity provided a hedge against market pricing. The Court of Appeals also rejected the argument that the Commission\u2019s conclusion that the power plant\u2019s impact on overall system costs would be less than the comprehensive costs of wind or solar alternatives was not supported with sufficient detail and evidence.\u00a0<\/a>In re Minnesota Power\u2019s Petition for Approval of Energy<\/em>Forward\u00a0Resource Package<\/em><\/a>, Nos. A19-0688, A19-0704 (Minn. Ct. App. Aug. 23, 2021).<\/p>\n

Montana Court Allowed Youth Plaintiffs to Proceed with Constitutional and Public Trust Climate Claims<\/strong><\/p>\n

A Montana District Court concluded that youth plaintiffs had standing for their claims that the Montana State Energy Policy and the \u201cClimate Change Exception\u201d to the Montana Environmental Policy Act (MEPA) violate the Montana Constitution\u2014which includes provisions declaring that Montana citizens possess an inalienable right to a clean and healthful environment\u2014and the public trust doctrine. The Climate Change Exception provides that environmental review under MEPA may not include \u201cactual or potential impacts that are regional, national, or global in nature.\u201d The court found that the plaintiffs sufficiently alleged that their alleged harms were caused by carbon emissions for which the State defendants were responsible, that they had \u201csufficiently raised a factual dispute as to whether the State Energy Policy was a substantial factor in causing Youth Plaintiffs\u2019 injuries,\u201d and that the plaintiffs sufficiently alleged that actions pursuant to the Climate Change Exception implicated their right to a clean and healthful environment. The court further found that the harms would be redressable by declaratory relief. The court agreed with the defendants, however, that injunctive relief ordering a remedial plan or an accounting of greenhouse gas emissions would violate the political question doctrine. The court rejected the argument that the plaintiffs failed to exhaust administrative remedies, finding that the plaintiffs could bring a direct action in court without first seeking administrative review.\u00a0<\/a>Held v. State<\/em><\/a>, No. CDV-2020-307 (Mont. Dist. Ct. Aug. 4, 2021).<\/p>\n

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

Supreme Court to Consider Whether to Hear Appeals of D.C. Circuit Decision Vacating Trump Administration\u2019s Repeal and Replacement of Clean Power Plan<\/strong><\/p>\n

Briefing was completed on August 24, 2021 on the four petitions for writ of certiorari seeking review of the D.C. Circuit\u2019s January 2021 decision vacating the U.S. Environmental Protection Agency\u2019s repeal and replacement of the Obama administration\u2019s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The petitions were distributed for the justices\u2019 conference of September 27.\u00a0<\/a>West Virginia v. EPA<\/em><\/a>, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (U.S. Aug. 5, 2021).<\/p>\n

Supplemental Appellate Briefing Continued on Removal Issues in Baltimore and Rhode Island Cases; Fossil Fuel Companies Moved to Dismiss King County\u2019s Case in Washington Federal Court<\/strong><\/p>\n

In addition to the remand of the City of Hoboken\u2019s climate change case and the order staying the remand order in Minnesota\u2019s case (both of which are discussed above), the following developments have occurred in the climate change cases brought against the fossil fuel industry by state and local governments:<\/p>\n