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 email@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 135.
Hawaiʻi Supreme Court Said Public Utilities Commission Improperly Limited Consideration of LNG Projects’ Greenhouse Gas Impacts
The Hawaiʻi Supreme Court vacated the Public Utilities Commission’s (PUC’s) approval of a rate increase that allowed a utility to pass the costs of two liquid natural gas (LNG) project on to its customers. The court determined that two nonprofit groups had standing to appeal the PUC’s determination because they had demonstrated they were “persons aggrieved” who had participated in the case. The court cited the groups’ allegations that their members were “deeply concerned” about the environmental and financial impacts of climate change, as well as climate change’s threats to native Hawaiian traditions and culture. The court further held that the PUC did not fulfill its statutory obligations under the State utilities law, which the court concluded did not limit the PUC’s consideration of greenhouse gas (GHG) emissions to only those occurring within the state. The PUC therefore should have considered imported LNG’s impacts on out-of-state greenhouse gas emissions. The court also said the PUC failed to comply with statutory requirements when it “merely restat[ed], without substantiating, [the utility’s] representation that its LNG projects would decrease GHG emissions.” In addition, the court held that the PUC’s limitations on the participation of the nonprofit groups violated their due process rights because they possessed a “protected property interest in a clean and healthful environment” under the Hawaiʻi State Constitution, and the PUC had “limited its consideration of GHG emissions to those within the boundaries of the state, truncating Appellants’ property interest.” On the issues of whether the PUC had failed to fulfill constitutional obligations to protect one group’s native Hawaiian customary and traditional rights or to abide by the PUC’s affirmative obligations as a public trustee of the State’s natural resources, the court found that the record was not sufficiently developed to address these issues because the PUC “improperly curtailed” the nonprofit groups’ substantive participation. The court remanded to the PUC for further proceedings. In re The Gas Co. dba Hawaii Gas, No. SCOT-19-0000044 (Haw. June 9, 2020).
DECISIONS AND SETTLEMENTS
California Appellate Court Rejected San Diego County’s Plan to Mitigate Greenhouse Gas Impacts with Off-Site Offsets
The California Court of Appeal rejected key aspects of San Diego County’s appeal of a trial court decision that set aside the County’s approvals of a 2018 Climate Action Plan, Guidelines for Determining Significance of Climate Change, and a supplemental environmental impact report (SEIR). The appellate court held that a mitigation measure in the SEIR that permitted the purchase of carbon offsets from projects outside the County, including international projects, violated the California Environmental Quality Act (CEQA) because the mitigation measure did not require that offsets meet AB 32 requirements, that greenhouse gas emission reductions be additional, and that the offsets originating outside California have greenhouse emissions programs equivalent to or stricter than California’s program. In addition, the appellate court found that the mitigation measure violated CEQA because 100% of greenhouse gas emissions could be offset by projects originating outside California and there were no objective criteria for County officials to use to determine whether a particular offset program was appropriate. The court also found other shortcomings in the SEIR: inadequate cumulative impacts analysis due to the exclusion of greenhouse gas impacts from certain in-process projects; failure to support a finding that the offset mitigation measure was consistent with the Regional Transportation Plan required by SB 375; failure to analyze a smart-growth alternative; and inconsistency between the Climate Action Plan and the SEIR. Golden Door Properties, LLC v. County of San Diego, No. D075328 (Cal. Ct. App. June 12, 2020).
Texas Appellate Court Found Insufficient Contacts to Allow Exxon to Pursue Presuit Discovery Against California Cities and Counties
Reversing a trial court, the Texas Court of Appeals dismissed Exxon Mobil Corporation’s (Exxon’s) petition seeking presuit discovery against California cities and counties that had filed tort-based lawsuits in California courts seeking to hold Exxon and other fossil fuel companies liable for the impacts of climate change. Exxon—which also sought discovery from government officials and an outside attorney who represented two of the cities—contended that the counties’ and cities’ allegations in their lawsuits regarding climate change risks contradicted their bond-offering disclosures and that discovery would allow Exxon to determine whether the California suits were “baseless and brought in bad faith as a pretext to suppress the Texas energy sector’s Texas-based speech and associational activities regarding climate change and to gain access to documents that Exxon keeps in Texas.” The appellate court found that the potential defendants lacked “the requisite minimum contacts with Texas to be subject to personal jurisdiction here.” The appellate court stated that “even though the California suits and some of the Potential Defendants’ public comments target Exxon’s climate-change speech, these out-of-state actions were directed at Exxon, not Texas. Without more, the mere fact that the Potential Defendants directed these statements at Texas-based Exxon and that Exxon might suffer injury here does not establish personal jurisdiction.” In addition, the appellate court said the filing of lawsuits that could yield production of documents located in Texas was not sufficient to subject the potential defendants to personal jurisdiction in Texas. The appellate court further concluded that a Texas court could not order depositions from prospective witnesses when it did not have personal jurisdiction over the potential defendants. In the opinion’s closing paragraphs, the appellate court said it would “confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being,” but that “our reading of the law simply does not permit us to agree” that the potential defendants had the requisite contacts for jurisdiction. In a similar vein, the chief justice of the court wrote a short concurring opinion urging the Texas Supreme Court “to reconsider the minimum-contacts standard that binds us.” City of San Francisco v. Exxon Mobil Corp., No. 02-18-00106-CV (Tex. Ct. App. June 18, 2020).
Supreme Court Stayed Nationwide Injunction on New Oil and Gas Pipelines, But Left Injunction in Place for Keystone
On July 6, 2020, the U.S. Supreme Court stayed a district court’s order that enjoined the authorization of all new oil and gas pipelines under Nationwide Permit (NWP) 12 due to a failure to comply with the consultation requirements of the Endangered Species Act. The injunction remains in place for the Keystone XL pipeline. The U.S. Army Corps of Engineers had submitted an application to Justice Kagan for stay pending appeal of the district court order after the Ninth Circuit denied motions to stay in late May. The Corps argued to the Supreme Court that the district court “had no warrant” to set aside NWP 12 for the Keystone XL pipeline project, “let alone for the construction of all new oil and gas pipelines anywhere in the country.” The Corps contended that nationwide equitable relief was improper, that the order was issued without fair notice, and that the order lacked any sound basis in the Endangered Species Act. U.S. Army Corps of Engineers v. Northern Plains Resource Council, No. 19A-1053 (U.S.).
Supreme Court Denied Certiorari in Challenge to Federal Approvals that Extended Life of Coal Plant on Navajo Land
The U.S. Supreme Court declined to review a Ninth Circuit decision affirming the dismissal of lawsuit brought by environmental groups in 2016 to challenge federal authorizations of the expansion of coal mining and the extension of a coal plant’s operations on tribal lands in the Four Corners area of New Mexico and Arizona. The Ninth Circuit had agreed with the district court that the Navajo Transitional Energy Company (NTEC)—a corporation wholly owned by the Navajo Nation and the owner of the coal mine—was a required party that could not be joined due to tribal sovereign immunity. The Ninth Circuit further concluded that the district court had not abused its discretion in determining that the lawsuit could not proceed without NTEC. The environmental groups had asked the Supreme Court to review the question of whether the Federal Rules of Civil Procedure “require dismissal of an Administrative Procedure Act action challenging a federal agency’s compliance with statutory requirements governing federal agency decisions, for failure to join a non-federal entity that would benefit from the challenged agency action and cannot be joined without consent.” Diné Citizens Against Ruining the Environment v. Bureau of Indian Affairs, No. 19-1166 (U.S. June 29, 2020).
D.C. Circuit Rejected FERC Reliance on “Tolling Orders” to Delay Judicial Review
After granting a petition for rehearing en banc in proceedings challenging Federal Energy Regulatory Commission (FERC) authorization of the Atlantic Sunrise natural gas pipeline project, the D.C. Circuit Court of Appeals concluded that the Natural Gas Act did not allow FERC “to issue tolling orders for the sole purposes of preventing rehearing from being denied by its inaction and the statutory right to judicial review attaching.” (The panel was interpreting a provision of the Natural Gas Act that provides that an application to FERC for rehearing will be deemed denied if FERC does not act on it within 30 days.) The D.C. Circuit therefore denied motions to dismiss the initial petitions for review that had been filed 30 days after applications for rehearing. On the merits, however, the en banc court agreed with the original panel that FERC reasonably found market need for the Atlantic Sunrise Project. The en banc court did not revisit the panel’s conclusions that the National Environmental Policy Act review of the project was sufficient. In a concurring opinion, Judge Griffith wrote that tolling orders were “just one part of the legal web that can ensnare landowners in pipeline cases” and that courts should use other tools to protect landowners from inalterably losing their property before judicial review of a pipeline’s authorization is complete. Judge Henderson concurred in the judgment and dissented in part, writing that there was no special justification for departing from the court’s consistent holding that tolling orders were permissible. Allegheny Defense Project v. Federal Energy Regulatory Commission, No. 17-1098 (D.C. Cir. June 30, 2020).
Environmental Group Must Show Why It Can Appeal Stay Order in Citizen Suit Challenging Climate Readiness of Exxon Terminal
The First Circuit Court of Appeal questioned whether it had jurisdiction to consider an appeal of a Massachusetts district court order staying a citizen suit seeking to compel ExxonMobil Corporation to prepare a marine distribution terminal for severe weather and other climate change impacts. The First Circuit directed the plaintiff-appellant, Conservation Law Foundation, either to move for voluntary dismissal of the appeal or to show cause why the appeal should not be dismissed for lack of jurisdiction. The order stated that “[b]ecause the order appealed from does not appear to be final or appealable on an interlocutory basis, this court does not appear [to] have jurisdiction to review.” The First Circuit said failure to take action by July 10 would lead to dismissal for lack of diligent prosecution. Conservation Law Foundation, Inc. v. ExxonMobil Corp., No. 20-1456 (1st Cir. June 26, 2020).
Second Circuit Rejected Constitutional Challenges to Connecticut’s Transfer of Monies Out of Funds for Renewable and Clean Energy
The Second Circuit Court of Appeals affirmed the rejection of constitutional claims challenging Connecticut’s transfers of funds from the Energy Conservation and Load Management Fund and Clean Energy Fund (the Energy Funds) to the State’s General Fund. The Second Circuit agreed with the federal district court for the District of Connecticut that the appellants—who were electric distribution company customers who paid charges to the Energy Funds pursuant to tariffs—did not have a contractual right to prevent transfer of the funds. The Second Circuit therefore found that the appellants failed to plead a violation of the Contract Clause. The Second Circuit also found that the appellants did not have a property interest in monies in the Energy Funds. The appellate court therefore agreed that the law transferring the funds was not a tax, and that the taxpayer standing doctrine—which provides that taxpayers generally have standing to challenge imposition of taxes but not tax revenue expenditures—barred the appellants’ Equal Protection claim, which was based on allegations that the transfers to the General Fund amounted to a tax that customers of municipalities were not required to pay. Colon de Mejias v. Lamont, No. 18-3533 (2d Cir. June 23, 2020).
Federal Court Rejected CARB Requests for Certain Documents Supporting Trump Administration’s Vehicle Standards
The federal district court for the District of Columbia ruled against the California Air Resources Board (CARB) in CARB’s Freedom of Information Act lawsuit seeking records related to the U.S. Environmental Protection Agency’s (EPA’s) and the National Highway Traffic Safety Administration’s (NHTSA’s) August 2018 proposed revisions to federal greenhouse gas emission and fuel economy standards for light-duty vehicles. Although the court rejected the defendants’ argument that CARB improperly requested explanations rather than documents, the court also rejected CARB’s contention that the defendants acted in bad faith. The court also found that NHTSA conducted an adequate search for responsive documents in response to CARB’s requests concerning models and data supporting the proposed rule’s conclusions regarding the costs of batteries for electric vehicles. In addition, the court found that EPA rightfully withheld email threads regarding battery cost models and data (because the threads were not responsive and also predecisional and deliberative) and that NHTSA properly withheld two draft reports concerning increased fatalities associated with vehicle mass reduction (because the draft reports were predecisional and deliberative). California Air Resources Board v. EPA, No. CIV-DS-1938432 (D.D.C. June 3, 2020).
Washington Appellate Court Rejected Necessity Defense for Climate Change Protestor, Creating Split Between Intermediate Appellate Courts
In a split opinion, the Washington Court of Appeals held that a protestor who stood on train tracks to protest the transport of oil and coal was not entitled to present a necessity defense because he had “reasonable legal alternatives” to trespass and unlawful obstruction, “even if those alternatives had not brought about timely legislative changes.” The defendant had testified that he believed his actions were necessary to avoid the “imminent danger” of train derailment and “to minimize the danger to the Earth due to climate change.” A climate scientist, conflict resolution professor, and international analyst in nuclear waste storage and transportation, accident prevention, and emergency planning and homeland security also testified or submitted an affidavit in support of his assertion of the necessity defense. The appellate court, which noted that the Washington Supreme Court had not addressed the question, stated: “The necessity defense does not apply to persons who engage in civil disobedience by intentionally violating constitutional laws. This is because such persons knowingly place themselves in conflict with the law and, if the law is constitutional, courts should not countenance this. There are always reasonable legal alternatives to disobeying constitutional laws.” The appellate court discussed State v. Ward—in which another division of the Washington Court of Appeals concluded that a climate change protestor should have been allowed to present a necessity defense—and said it disagreed with the decision “[t]o the extent Ward authorizes people to intentionally violate constitutional laws when protests and petitions are unsuccessful.” The dissenting judge would have found that the district court correctly ruled that the defendant in this case presented facts to support a necessity defense and that a jury should determine his guilt or innocence. State ex rel. Haskell v. Spokane County District Court, No. 36506-9-III (Wash. Ct. App. June 9, 2020).
D.C. Court Denied Reconsideration of Attorney’s Fees Order in Climate Scientist’s Defamation Suit
In a defamation lawsuit brought by a climate scientist in connection with the publication of an article that evaluated an article published by the plaintiff, the D.C. Superior Court denied the plaintiff’s motion for reconsideration of its order granting the defendants’ motions for attorney’s fees and costs. The plaintiff voluntarily dismissed his action approximately five months after filing it and two days after a hearing on the defendants’ special motion to dismiss pursuant to the D.C. Anti-SLAPP (Strategic Litigation Against Public Participation) Act. The court denied the motion for reconsideration on both procedural and substantive grounds. Procedurally, the court found that the plaintiff’s violations of the court’s page limits provided grounds for denial. Substantively, the court said it was not persuaded either by arguments that the motion “merely rehashes” or by arguments regarding new legal authority and evidence, including alleged admissions by a defendant that there were false facts in his article. Jacobson v. Clack, No. 2017 CA 006685 B (D.C. Super. Ct. June 25, 2020).
NEW CASES, MOTIONS, AND NOTICES
Minnesota Filed Lawsuit Charging that Fossil Fuel Defendants’ “Campaign of Deception” Led to Climate Crisis
The State of Minnesota filed a lawsuit in state court against the American Petroleum Institute, Exxon Mobil Corporation (Exxon), Koch Industries, Inc. (Koch), and Exxon and Koch subsidiaries, alleging that the defendants caused a “climate-change crisis” in the state through a “campaign of deception.” The State alleged that it sought “to hold Defendants accountable for deliberately undermining the science of climate change, purposefully downplaying the role that the purchase and consumption of their products played in causing climate change and the potentially catastrophic consequences of climate change, and for failing to fully inform the consumers and the public of their understanding that without swift action, it would be too late to ward off the devastation.” The complaint asserted a claim under the Minnesota Consumer Fraud Act as well as claims of strict and negligent liability for failure to warn; common law fraud and misrepresentation; deceptive trade practices under Minnesota Statutes § 325D.44; and violation of Minnesota’s False Statement in Advertising Act. Minnesota asked the court to order the defendants to publish all research conducted by the defendants and their agents that relates to climate change and to “fund a corrective public education campaign in Minnesota relating to the issue of climate change.” In addition, Minnesota sought civil penalties, restitution “to remedy the great harm and injury to the State resulting from Defendants’ unlawful conduct,” and disgorgement of profits resulting from unlawful conduct. In addition, Minnesota asked the court to award attorney’s fees and other costs of investigation and litigation. State v. American Petroleum Institute, No. 62-CV-20-3837 (Minn. Dist. Ct., filed June 24, 2020).
D.C. Filed Suit Against Oil and Gas Companies Alleging Violations of Consumer Protection Law
The District of Columbia filed a lawsuit asserting claims under its Consumer Protection Procedures Act (CPPA) against oil and gas companies in D.C. Superior Court. The District alleged that the companies had engaged in “deceptive and unfair conduct” in violation of the CPPA by misleading consumers about “the central role their products play in causing climate change, one of the greatest threats facing humanity.” The complaint alleged that D.C. had had to develop a heat emergency plan to address an increased number of extreme heat days, that D.C. was experiencing “more frequent and extreme precipitation events and associated flooding,” and that impacts were particularly severe in low-income communities and communities of color. The District asked the court to enjoin the defendants from violating the CPPA and to order them to pay restitution or damages, civil penalties, and costs and attorney’s fees. District of Columbia v. Exxon Mobil Corp., No. 2020 CA 002892 B (D.C. Super. Ct., filed June 25, 2020).
Baltimore Argued that Supreme Court Should Decline to Review Decision Affirming Remand of Climate Case to State Court
Baltimore filed a brief in the U.S. Supreme Court arguing that the Court should deny oil and gas companies’ petition for writ of certiorari seeking review of the Fourth Circuit’s affirmance of a remand order in Baltimore’s climate change case. Baltimore’s brief said there were three principal reasons why the certiorari petition should be denied. First, Baltimore contended that a “purported circuit split” on the issues of the scope of appellate review of remand orders was “insignificant at best.” Second, Baltimore contended that these issues were “not likely to recur with any frequency.” Third, Baltimore argued that the Fourth Circuit’s interpretation of the removal statute was “consistent with the statutory text and strict limitations Congress has historically placed on appellate review of remand orders.” BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S.).
Washington Asked Supreme Court to Reject Montana and Wyoming’s Challenge to Denial of Certification for Coal Export Terminal
The State of Washington filed a brief in the U.S. Supreme Court opposing Montana and Wyoming’s motion for leave to file a bill of complaint alleging that Washington violated the dormant Commerce Clause and Foreign Commerce Clause by denying a Clean Water Act Section 401 certification for a coal export terminal. Washington argued that the issues raised by Montana and Wyoming were related to a private dispute and were being addressed in other state and federal courts. Washington also argued that reversal of the denial of the Section 401 certification would not allow the project to proceed. In addition, Washington contended that the claims were meritless because the denial was “based on valid environmental concerns specifically authorized by federal law, not discriminatory motives,” and the denial of a single permit did not amount to an “embargo” or “blockade” on the transport of coal from Montana and Wyoming through Montana. In reply, Montana and Wyoming told the Court that their sovereign interests were at stake and that their injuries were redressable. They also said Washington’s denial of the certification was discriminatory in violation of the Commerce Clause and Foreign Commerce Clause. Montana v. Washington, No. 22O152 (U.S.).
District Court Asked Ninth Circuit to Delete Footnote in Opinion Reversing Determination on Removal Jurisdiction; Fossil Fuel Companies Must File Petitions for Rehearing by July 9
A month after the Ninth Circuit reversed a district court’s determination that federal-question jurisdiction provided a basis for the removal of Oakland and San Francisco’s climate change nuisance lawsuits against oil and gas companies, Judge William Alsup of the U.S. District Court for the Northern District of California submitted a letter to the Ninth Circuit “to correct a mistake” in the Ninth Circuit’s opinion. Judge Alsup said a footnote in which the Ninth Circuit “declined to address the extent to which the complaints’ dependence on the navigable waters of the United States afforded removal jurisdiction” incorrectly indicated that his decision relied on admiralty jurisdiction as a basis for removal, a grounds not identified by the companies in their removal notices. Judge Alsup said this footnote “confused federal-question jurisdiction arising out of the navigable waters of the United States with admiralty jurisdiction.” Judge Alsup’s letter asserted that navigable waters “serve as a bedrock of federal common law and federal-question jurisdiction” and requested that the Ninth Circuit withdraw the footnote and address “the merits of the ground on which removal jurisdiction was actually sustained.”
On June 8, 2020, the Ninth Circuit granted the companies’ motion for an extension of time to file a petition for panel rehearing or rehearing en banc in both the Oakland/San Francisco case as well as in County of San Mateo v. Chevron Corp., in which the Ninth Circuit affirmed remand orders. Any petition for rehearing must be filed by July 9. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.); County of San Mateo v. Chevron Corp., Nos. 18-15499 (9th Cir.).
Opening Briefs Challenged Lawfulness of EPA and NHTSA’s Actions to Restrict California and Other States’ Authority to Regulate Vehicle Greenhouse Gas Emissions
Petitioners filed their opening briefs in the D.C. Circuit cases challenging the Trump administration’s “One National Program Rule,” in which EPA and NHTSA finalized regulations that withdrew California’s waiver for greenhouse gas and zero-emission vehicle standards, declared that the Energy Policy and Conservation Act (EPCA) preempted such standards, and provided that other states could not adopt or enforce California’s greenhouse gas emissions standards. The primary brief filed by states, local governments, and public interest petitioners argued both that EPA lacked authority to withdraw the waiver and that EPA’s grounds for the withdrawal—that California’s standards were not needed “to meet compelling and extraordinary conditions” and that EPCA preempted the standards—were invalid. The petitioners also argued that the Clean Air Act “unambiguously authorizes” other states to adopt California’s standards for any pollutant, including greenhouse gases. Regarding the preemption rule adopted by NHTSA, the petitioners asserted that the D.C. Circuit did not have original jurisdiction to review the rule but that, in any event, the preemption rule exceeded NHTSA’s authority, that NHTSA’s interpretation was contrary to statute, and that NHTSA violated NEPA by failing to prepare any environmental review documents. A group of “industry petitioners” that included utilities and a coalition of companies and organizations supporting electric vehicle and other advanced transportation technologies and related infrastructure filed a secondary brief that adopted the primary brief’s arguments but also put forward additional arguments. The industry petitioners contended that withdrawal of California’s waiver contravened the Clean Air Act’s “technology-forcing” design and disregarded “significant industry reliance interests” and that the preemption regulation was contrary to statute because EPCA’s text and purpose do not support preemption of standards that mandate that certain percentages of sales be zero-emission vehicles. As of July 3, 2020, two amicus briefs had been filed in support of the petitioners, one by the National Parks Conservation Association and Coalition to Protect America’s National Parks, who argued that California’s waiver was necessary to protect national parks in California and other states from climate change and air quality harms, and the other by not-for-profit public health and scientific organizations, who argued that California’s standards were “crucial” to California’s compliance with the Clean Air Act and addressed “compelling and extraordinary conditions presented by climate change.” Ten additional amicus briefs were filed in support of the petitioners on July 6 by organizations representing municipal governments, the Edison Electric Institute, Lyft, Inc., members of Congress, the Institute for Policy Integrity at NYU Law School, a law professor at the University of Michigan, scientists who study the impacts of climate change on California, the National Association of Clean Air Agencies, former Secretaries of Transportation and EPA Administrators, and other former regulatory officials and legislative advisors who worked on the drafting and implementation of the Clean Air Act. Union of Concerned Scientists v. National Highway Traffic Safety Administration, Nos. 19-1230 et al. (D.C. Cir.).
NRDC Challenged FERC Orders That Allegedly Would Keep Electric Storage and Demand Response Resources Out of New York’s Capacity Market
On June 19, 2020, Natural Resources Defense Council (NRDC) filed two petitions for review in the D.C. Circuit Court of Appeals seeking review of FERC orders that NRDC describes as “examples of federal policies blocking the clean energy transition” in New York State by requiring application of “buyer-side mitigation” rules to two types of technologies: (1) electric storage resources (e.g., batteries) and (2) demand response resources (which “pay customers to reduce their energy usage at the direction of the grid operator to help alleviate different types of stress on the electric grid”) The buyer-side mitigation rules for the New York Independent System Operator’s capacity market require that the bids for these types of resources not take into account the subsidies they receive from State programs, thereby increasing their bid prices. According to NRDC, “[t]he effect of FERC’s orders is to artificially raise the bid price of storage and demand response resources so that they are ‘out of the money’ and therefore are not selected in the capacity market auction. As a result, they will not displace, dirty incumbent fossil fuel power plants.” Natural Resources Defense Council v. Federal Energy Regulatory Commission, No. 20-1224 (D.C. Cir., filed June 19, 2020); Natural Resources Defense Council v. Federal Energy Regulatory Commission, No. 20-1223 (D.C. Cir., filed June 19, 2020).
EPA Defended Clean Power Plan Repeal and Replacement
On June 16, 2020, EPA filed its brief defending the repeal of the Obama administration’s Clean Power Plan and the promulgation of the Trump administration’s replacement rule, the Affordable Clean Energy (ACE) Rule. EPA argued that the Clean Power Plan was unlawful because Section 111(d) required that emissions reductions occur at a particular source and did not authorize the Clean Power Plan’s “generation shifting” measures. EPA also contended that it had properly defined a “Best System of Emissions Reduction” as an array of heat ray improvement methods and had properly identified the degree of emission limitations achievable. EPA also responded to arguments that it lacked authority to regulate carbon dioxide emissions at existing power plants; EPA argued that the ACE Rule was lawful based on EPA’s 2015 New Source Rule and did not require a new endangerment finding. In addition, EPA said regulation of hazardous air pollutant emissions under Section 112 did not bar regulation of carbon dioxide emissions under Section 111(d). EPA also argued that states could not adopt trading programs in place of source-specific emission standards and that the Clean Air Act did not permit compliance with the ACE Rule through biomass co-firing. The National Association of Home Builders filed a brief in support of EPA’s repeal of the Clean Power Plan, asserting that EPA “rightfully eliminates the Clean Power Plan’s overly expansive regulatory framework.” American Lung Association v. EPA, Nos. 19-1140 et al. (D.C. Cir.)
Two More Lawsuits Raised Climate Change Issue in New “Waters of the United States” Definition
Two additional lawsuits challenging the U.S. Army Corps of Engineers and EPA’s revised definition of “waters of the United States” (WOTUS) contended that the adoption of the definition violated the Administrative Procedure Act by failing to consider climate change. The new lawsuits, one in the District of Arizona and the other in the Western District of Washington, alleged that the agencies’ “decision to narrow the scope of waters protected under the Clean Water Act and to base the final rule on the permanence of surface flow in a typical year without considering the effects of climate change is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” At least two other lawsuits challenging the WOTUS rule—California v. Wheelerand Conservation Law Foundation v. EPA—have also challenged this aspect of the definition. Puget Soundkeeper Alliance v. EPA, No. 2:20-cv-950 (W.D. Wash., filed June 22, 2020); Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266 (D. Ariz., filed June 22, 2020).
Environmental Groups, Coal Company, and Federal Defendants Disagreed on Whether Company’s Roadbuilding Activities Were in Violation of Tenth Circuit Ruling
The federal district court for the District of Colorado formally vacated a Colorado Roadless Rule exception for the North Fork Coal Mining Area after the Tenth Circuit ruled that the U.S. Forest Service should have considered an alternative proposed by the plaintiff environmental groups. The court also directed the defendants and defendant-intervenor to respond to the plaintiffs’ emergency motion to enforce the remedy. The plaintiffs contended that the defendant-intervenor was illegally bulldozing in the Sunset Roadless Area despite the Tenth Circuit’s ruling, “apparently relying on the fact that this Court had yet to take the non-discretionary step of formally entering the vacatur order.” On June 23, 2020, the defendant-intervenor responded that after reviewing the Tenth Circuit decision, it had concluded that it had the right to continue roadbuilding pursuant to a separate exception in the Colorado Roadless Rule that allows roadbuilding when necessary to exercise statutory rights (in this case, rights under the Mineral Leasing Act). The federal defendants said the environmental groups’ motion should be denied because the activities at issue took place before the Roadless Rule exception was actually vacated and because the requested relief went beyond the Tenth Circuit mandate. High Country Conservation Advocates v. U.S. Forest Service, No. 1:17-cv-03025 (D. Colo.).
Challenge Filed to Environmental Review for Approval of Drug to Reduce Ammonia Emissions from Cows
Three organizations filed a lawsuit in the federal district court for the Northern District of California alleging that the U.S. Food and Drug Administration (FDA) violated the Federal Food, Drug, and Cosmetic Act and NEPA when it approved a drug “that allegedly results in less ammonia gas released from the waste produced by cows raised for beef.” In addition to allegations regarding the drug’s safety and effectiveness, the complaint also alleged that the environmental assessment prepared in support of the drug’s approval failed to adequately analyze whether the approval would have a significant adverse impact. The complaint alleged, among other things, that the reduction of ammonia emissions “while confining the same or greater number of cows in [concentrated animal feeding operations (CAFOs)] will do nothing to alleviate the overall air impacts of CAFOS,” including emissions of the greenhouse gases methane and nitrous oxide. Animal Legal Defense Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal., filed June 4, 2020).
Nonprofit Group Asked California Court to Enjoin VMT Regulation
The nonprofit organization The Two Hundred and residents of San Bernardino County in California filed a motion for a preliminary injunction in their lawsuit challenging new California Environmental Quality Act regulations, which the petitioners assert violate the federal and state constitutions, federal and state fair housing laws, the Global Warming Solutions Act, CEQA itself, and other laws. In their motion, the petitioners asked the court to enjoin the part of one of the new regulations that the petitioners describe as making “the act of driving a car or pickup truck (even an electric vehicle), for even a single mile in even a carpool on an existing road, a newly-invented ‘vehicle mile travelled’ (‘VMT’) ‘impact’ to the environment.” They contended that enforcement of the new VMT regulation outside transit priority areas would “worsen housing availability and affordability, thereby causing disparate harms to minority Californian[s],” and that the pandemic had exacerbated the harms. They argued that the legislature had considered and “uniformly rejected” laws requiring VMT reduction to achieve reductions in greenhouse gas emissions and that the adoption of the VMT regulation was procedurally deficient. The Two Hundred v. Governor’s Office of Planning & Research, No. CIV-DS-1938432 (Cal. Super. Ct. June 2, 2020).
Energy Policy Advocates Sought State Attorneys General Communications Related to Climate Change
In early June 2020, Energy Policy Advocates filed a lawsuit in state court in Vermont seeking to compel the Attorney General’s Office to produce records under the Vermont Public Records Law in response to four records requests made in April 2020. The requests sought certain correspondence, including certain emails with “GHG Emissions Affirmative Legislation” or “Affirmative Climate” in the subject line or that included the word “complaint” and “criteria pollutant,” “greenhouse gas,” or “GHG.” The complaint alleged that the Attorney General’s Office was improperly using common interest agreements to “shield records from the public eye, while nevertheless sharing such records with actors not employed by the State of Vermont.” Energy Policy Advocates v. Attorney General’s Office, No. __ (Vt. Super. Ct., filed June 1, 2020).
In late May 2020, Energy Policy Advocates filed a lawsuit in state court in Michigan under the Michigan Freedom of Information Act (FOIA) seeking correspondence of Department of Attorney General staff members and a contractor, as well as other records, including “purported common interest agreements.” The complaint alleged that the Department was using FOIA exemptions “to shield from the public the agency’s involvement with outside pressure groups and plaintiff’s tort attorneys,” including correspondence that the complaint alleged would show that climate activists were recruiting attorneys general to file litigation against private parties. Energy Policy Advocates v. Nessel, No. 20-__-MZ (Mich. Ct. Claims, filed May 27, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Court Allowed Case Against Canada for Failing to Assess Climate Impacts of Offshore Drilling
On May 11, 2020, on behalf of Ecology Action Centre, Sierra Club Canada Foundation and WWF-Canada, Ecojustice took legal action against the Canadian government, alleging a failure to properly assess the risks of exploratory drilling for oil and gas off the coast of Newfoundland and Labrador. The application for review asserts that the Impact Assessment Agency of Canada relied on a deficient assessment report in completing its regional assessment of offshore exploratory drilling in the region under the Impact Assessment Act. The complainants contend, among other things, that an increase in offshore oil and gas exploration threatens Canada’s commitment to reach net-zero emissions by 2050.
The complaint seeks an order declaring that the report is not a “regional assessment” within the meaning of the Impact Assessment Act, an order quashing the report and sending it back to the Regional Assessment Committee for the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador to redo the assessment, an order prohibiting the Minister of Environment and Climate Change from making a regulation based on the report to exempt from assessment under the Act certain exploratory drilling activities, and an interim order staying the effect of the proposed regulation. The government filed a motion to dismiss. On June 3, a federal court in Ottawa denied the motion to dismiss, and denied the complainants’ motion for an interim order. Ecology Action Centre, et al. v. Minister of Environment and Climate Change, 2020 FC 663 (Ottawa Federal Court).
Plaintiffs Challenged UK Energy National Policy Statements on Climate Grounds
On May 18, 2020, three plaintiffs sought judicial review of the British government’s energy national policy statements (Energy NPSs) issued in 2011 on the ground that the NPSs must be reevaluated in light of new British and global climate commitments.
The plaintiffs are Dale Vince, founder of a renewable energy company called Ecotricity; journalist and campaigner George Monbiot; and the organization Good Law Project. On March 2 the plaintiffs sent a letter to the Secretaries of State for Business, Energy, and Industrial Strategy; Housing, Communities, and Local Government; and Environment, Farming and Rural Affairs. The letter urged the Secretaries to consider whether the Energy NPSs are still appropriate under section 6(1) of the Planning Act 2008 in light of changed circumstances. These changed circumstances include an amendment to the Climate Change Act 2008 (2050 Target Amendment), in June 2019, to require that the UK achieves carbon neutrality by 2050; the Paris Agreement; the IPCC special report on 1.5 degrees of warming; the UK Parliament’s declaration of a climate emergency; and the UK’s exit from the European Union. The government responded on March 23 that it was considering whether to review the Energy NPSs.
On May 18 the plaintiffs sought judicial review. The plaintiffs argue that the events discussed above constitute a significant change in circumstances since the Energy NPSs were adopted in 2011, requiring review of the NPSs. The plaintiffs alternatively argue that the Secretaries of State may not exercise their discretion to frustrate the operations of Any Act of Parliament, and that the current Energy NPSs frustrate the intent of the Climate Change Act 2008 as amended in 2019. The plaintiffs seek a declaration that the government must review the Energy NPSs; or, alternatively, a declaration that the Energy NPSs are unlawful. The plaintiffs filed an amended summons on June 29, 2020. Vince, et al. v. Secretary of State for Business, Energy and Industrial Strategy, et al., CO/1832/2020 (Planning Court).
French Government Responded to Claims that Human Rights Law Requires Further Action on Climate Change
On March 14, 2019, Fondation pour la Nature et l’Homme (FNH), Greenpeace France, Notre Affaire à Tous and Oxfam France filed a lawsuit seeking that the State of France be enjoined to remedy its alleged inadequate action on climate change. Plaintiffs argue that the government has a duty to address climate change under the French Charter for the Environment, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the general principle of law providing the right of every person to live in a preserved climate system. Plaintiffs additionally argue the State has further “specific” obligations to mitigate greenhouse gas emissions under EU and national law as well as a mandate to take action to prepare for the impacts of climate change on France. On June 26, 2020 the government responded. According to the plaintiffs, the government asserted that it was taking action to address greenhouse gas emissions, and that the time has not elapsed for it to meet its 2020 goals. Notre Affaire à Tous v. France (Administrative Court of Paris).
Brazilian Political Parties Sought Action on Amazon Fund
On June 5th, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission (ADI-O), before the Federal Supreme Court (STF) of Brazil, challenging the Federal government’s alleged failure to adopt administrative measures concerning the Amazon Fund.
The Amazon Fund, created by the Decree 6,527/08, has the objective of promoting projects that prevent or combat deforestation and finances actions for the Reduction of Emissions from Deforestation and Forest Degradation (REDD +) mechanism, under the UNFCCC. The plaintiffs claim that the fund has not approved any project since 2019, although resources are available and projects are awaiting technical analysis. They further allege that between 2019 and 2020, important mechanisms that allowed the functioning and management of the Amazon Fund were extinguished, namely: the Technical Committee of the Amazon Fund (CTFA), responsible for calculating deforestation and the amount of carbon emitted, and the Steering Committee of the Amazon Fund (COFA), the Fund’s governance body.
The plaintiffs rely on the common duty of the Federal Government, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution of 1988, as well as the precautionary principle. They also allege a violation of Article 225 of the Federal Constitution, regarding the State’s duties to preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that Federal Union take the necessary administrative measures to reactivate the operation of the Amazon Fund.
In June 2020, the Supreme Court admitted the lawsuit and requested the federal and state government actors involved to provide information related to: (i) the management and distribution of Fund resources; (ii) activities and projects linked to the Fund that have been implemented and suspended; (iii) data on the deforestation process observed in the Amazon region between 2013 and 2020; and (iv) contracts signed with international donors (Germany and Norway).
The Public Attorney’s Office (Advocacia-Geral da União, AGU), in the defense of the Federal Government, presented a response stating that the ADI-O would not be a suitable instrument “for demonstrating discontent or disagreement with the content of government actions.” PSB et al. v. Brazil, ADO 59/DF, 2020 (Federal Supreme Court).
Brazilian Political Parties Sought Action on Climate Fund
On June 5, 2020, four Brazilian political parties filed a Direct Action of Unconstitutionality for Omission, before the Federal Supreme Court of Brazil to challenge the Federal Union’s alleged failure to adopt administrative measures concerning the Climate Fund. The National Climate Change Fund (Fundo Clima), created by Law 12.114/2009, is an instrument of the National Policy on Climate Change (PNMC, Law 12.187/2009) and aims to ensure that resources support projects or studies and finances activities aimed at mitigating and adapting to climate change and its effects.
The plaintiffs allege that although there is a legal obligation for the Ministry of the Environment to prepare an annual plan for the Climate Fund, it has been inoperative since 2019. The petitioners rely on the obligation of the Union, the States, the Federal District and the Municipalities to “protect the environment and fight pollution in any of its forms” and “to preserve forests, fauna and flora” per the Federal Constitution, as well as the precautionary principle. The plaintiffs also allege a violation of Article 225 of the Federal Constitution, regarding the State’s duties to: preserve and restore ecological processes; promote the ecological management of ecosystems; define territorial spaces and its components to be specially protected; and protect fauna and flora. The petition also seeks an injunction to require that the Federal Union: (i) undertake the necessary administrative measures to reactivate the operation of the Climate Fund, with the due availability of resources related to the Climate Fund (including the non-refundable and refundable modalities); (ii) prepare and present the appropriate annual plans for the application of the Fund’s resources; and (iii) refrain from making new contingencies of resources from the Climate Fund.
The preliminary ruling by the Supreme Federal Court: (i) adopted an urgency procedure for the action; (ii) summoned the governmental actors involved; (iii) admitted the action as an Argument for Failure to Comply with a Fundamental Precept (ADPF, another constitutional procedure aimed at enforcing the principles and values in the Constitution); and (iv) scheduled a public hearing on September 21 and 22, 2020, creating a deadline for interested parties to express their interest in participating, until August 10, 2020. PSB et al. v. Federal Union, ADO 60/DF, 2020 (Superior Tribunal Federal).