April 2022 Updates to the Climate Case Charts

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 protected].

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #157:

FEATURED CASES

Ninth Circuit Said Conclusion that Coal Mine Expansion’s Emissions Were “Minor” Was Arbitrary and Capricious

In a split opinion, the Ninth Circuit Court of Appeals ruled that federal defendants violated the National Environmental Policy Act (NEPA) by failing to provide a “convincing statement of reasons” why the impacts of a coal mine’s expansion on greenhouse gas emissions would be insignificant. The court found that the environmental assessment (EA) did not articulate “science-based criteria” for significance and relied on an arbitrary and capricious determination that the project’s emissions would be “relatively ‘minor,’” even though the EA calculated that greenhouse gas (GHG) emissions over the life of the project would total 0.44% of annual global emissions and the mine was projected to generate more greenhouse gases annually than the largest single point source in the U.S. The Ninth Circuit stated: “The lack of a science-based standard for significance is critical because the record before us reflects no dispute that GHGs cause global warming and have had dramatic effects on the environment. The only question is the extent to which this particular project’s GHGs will add to the severe impacts of climate change.” The court separately found that the EA’s comparisons of the project’s emissions with total U.S. emissions and total Montana emissions did not comply with NEPA because the federal defendants did not account for coal combustion emissions overseas, “obscuring and grossly understating the magnitude of … emissions relative to other domestic sources.” The Ninth Circuit concluded, however, that the defendants were not required to use the Social Cost of Caron metric to quantify the environmental harms of the project’s greenhouse gas emissions. But the court said NEPA and the Administrative Procedure Act required that the defendants use some methodology beyond the “bare comparisons” employed in the EA. The dissenting judge concluded that the finding that the project’s incremental effects were minor was not arbitrary and capricious under the APA’s deferential review standard. 350 Montana v. Haaland, No. 20-35411 (9th Cir. Apr. 4, 2022)

Fifth Circuit Stayed Preliminary Injunction Barring Federal Agency Reliance on Social Cost of Greenhouse Gases Estimates

On March 16, 2022, the Fifth Circuit Court of Appeals granted the Biden administration’s motion for a stay pending appeal of a district court’s preliminary injunction barring federal agencies from relying on the work product of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and from using any social cost of greenhouse gases (SC-GHG) estimates based on the global effects of greenhouse gases. The district court had denied the federal defendants’ motion for a stay pending appeal a week earlier. The Fifth Circuit concluded that the federal defendants were likely to succeed on the merits because the plaintiff states, led by Louisiana, lacked standing. The court found that their alleged injury of “increased regulatory burdens” from consideration of the SC-GHG was “merely hypothetical” and a “generalized grievance.” In addition, the Fifth Circuit found that the plaintiff states did not meet their burden on the causation and redressability elements of standing. The appellate court further concluded that the federal defendants had shown they would be irreparably harmed absent a stay because the district court’s directives prevented or delayed federal agencies “in considering SC-GHG in the manner the current administration has prioritized within the bounds of applicable law” and because the district court’s order appeared to go beyond federal courts’ authority by requiring the Biden administration to comply with prior administrations’ policies. In addition, the Fifth Circuit concluded that a stay of the preliminary injunction would impose “minimal injury” on the plaintiff states. On March 30, the plaintiff states filed a petition for rehearing en banc, arguing that the Fifth Circuit did not afford “special solicitude” to the states that was “fundamental” to the Fifth Circuit’s standing precedents and ignored harms to the states in their sovereign capacity. The states also contended that the alleged harm to the federal defendants was “amorphous.” Louisiana v. Biden, No. 22-30087 (5th Cir. Mar. 16, 2022)

 

DECISIONS AND SETTLEMENTS

Second Circuit Rejected Exxon Appeal of Dismissal of Constitutional Challenge to New York and Massachusetts Climate Investigations

The Second Circuit Court of Appeals rejected Exxon Mobil Corporation’s (Exxon’s) appeal of a district court’s dismissal of Exxon’s lawsuit asserting that the New York and Massachusetts attorneys general engaged in viewpoint discrimination and violated Exxon’s constitutional rights by pursuing investigations of Exxon’s allegedly deceptive speech regarding climate change. The Second Circuit concluded that Exxon’s claims against the New York Attorney General were moot because the Attorney General had concluded its investigation and Exxon had prevailed in the subsequent state court enforcement action that the Attorney General brought. The Second Circuit further found that Exxon “failed to establish a reasonable expectation that the conduct at issue” (the Attorney General’s fraud investigation) would recur, particularly because the Attorney General decided not to appeal the decision in favor of Exxon. The Second Circuit also rejected Exxon’s contention that injunctive relief was still available because the federal court could order the return or destruction of documents produced in discovery or the appointment of a monitor. In addition, the Second Circuit found that Exxon’s request for a declaratory judgment did not constitute a claim for prospective relief to remedy an ongoing constitutional violation. The Second Circuit also agreed with the district court that the doctrine of res judicata precluded Exxon’s claims against the Massachusetts Attorney General because Exxon could have raised its claims in an earlier state court proceeding in Massachusetts. Exxon Mobil Corp. v. Healey, No. 18-1170 (2d Cir. Mar. 15, 2022)

D.C. Circuit Said FERC Review of Pipeline Project Should Have Quantified Downstream Emissions

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) failed to account for reasonably foreseeable indirect impacts that a new natural gas pipeline and compressor station in Massachusetts would have on greenhouse gas emissions. In particular, the D.C. Circuit agreed with petitioners that the end use of natural gas transported by the project was reasonably foreseeable. The court ordered FERC to conduct a supplemental environmental assessment that either quantified and considered downstream greenhouse gas emissions or explained in more detail why it could not do so. The D.C. Circuit rejected other arguments made by the petitioner. First, it found that it could not consider arguments regarding FERC’s failure to consider upstream effects because the petitioner failed to raise the argument with specificity before FERC. The court also found that the petitioner failed to raise specific arguments before FERC regarding the agency’s failure to consider the significance of the project’s carbon emissions. In addition, the D.C. Circuit concluded that FERC acted reasonably by conducting a separate environmental review for a nearby natural gas meter station project.  Food & Water Watch v. Federal Energy Regulatory Commission, No. 20-1132 (D.C. Cir. Mar. 11, 2022)

Hawai‘i State Court Issued Final Orders Denying Oil and Gas Companies’ Motions to Dismiss Honolulu’s Climate Case but Granted Mining Company’s Motion

At the end of March 2022, a Hawai‘i trial court entered orders denying fossil fuel companies’ motions to dismiss Honolulu’s climate change lawsuit for failure to state a claim and for lack of personal jurisdiction. The orders finalized the court’s earlier rulings denying the motions. In the order on the motion to dismiss for failure to state a claim, the court was persuaded by Honolulu’s characterization of its claims as traditional tort law claims. The court concluded that federal common law did not govern or preempt Honolulu’s claims and that the Clean Air Act did not preempt them. In the order on the motion to dismiss for lack of personal jurisdiction, the court found that Honolulu made a prima facie showing for specific jurisdiction for the oil company defendants but rejected Honolulu’s argument that there was general jurisdiction as to two oil company defendants based on the alter ego theory. The court concluded that the contacts of a third company could not be imputed to the two companies. In a March 8 letter, the defendants informed the court that they intended to file a motion for interlocutory appeal of the two orders once they were finalized. In a separate ruling, the court dismissed Australian mining company defendants from the case because there were insufficient contacts for specific jurisdiction and “it would be unreasonable to bring a foreign country entity into the forum based only on indirect forum contacts from 24 years ago,” when a local subsidiary that had last engaged in business activity in the forum before becoming inactive. City & County of Honolulu vs. Sunoco LP, No. 1CCV-20-0000380 (Haw. Cir. Ct.)

Fourth Circuit Denied Pipeline Company’s Rehearing En Banc Petition in Endangered Species Act Case

The Fourth Circuit Court of Appeals denied intervenor-defendant Mountain Valley Pipeline, LLC’s petition for rehearing en banc of the court’s February 3, 2022 decision vacating a biological opinion and incidental take statement for the Mountain Valley Pipeline due to the U.S. Fish and Wildlife Service’s failure to adequately evaluate climate change impacts on two endangered species of fish. The intervenor-defendant argued that the panel misapplied the arbitrary-and-capricious standard of review and improperly substituted its judgment for the agency’s in evaluating potential effects of climate change. Appalachian Voices v. U.S. Department of the Interior, No. 20-2159 (4th Cir. Mar. 11, 2022)

Texas Federal Court Declined to Reconsider Denial of Exxon Motion to Dismiss Securities Fraud Class Action

In a brief order, the federal district court for the Northern District of Texas denied a motion by Exxon Mobil Corporation and former Exxon officials (Exxon) to reconsider a 2018 decision denying Exxon’s motion to dismiss a securities fraud class action based on allegations of materially false and misleading statements concerning climate change risks. Exxon argued that its victory in 2019 in an enforcement action brought by the New York Attorney General required dismissal of the class action. The court did not include the reasoning for its decision in the order. Ramirez v. Exxon Mobil Corp., No. 3:16-cv-03111 (N.D. Tex. Mar. 31, 2022)

Federal Court Largely Upheld Denial of Petition to List River Herring Species, Rejecting Climate Change Argument

The federal district court for the District of Columbia concluded that the analysis and review supporting the National Marine Fisheries Service’s (NMFS’s) denial of a petition to list two species of river herring as threatened under the Endangered Species Act was “thorough” and “largely unobjectionable.” The court rejected the plaintiffs’ contention that the 12- to 18-year timeframe for the “foreseeable future” was too short because it failed to adequately account for the harms of climate change. The court found that the plaintiffs relied “heavily on the foreseeability of the climate change threat,” which the NMFS “does not really contest,” but that the plaintiffs “largely ignore[d] the other half of the analysis—the foreseeability of river herrings’ response to the threat” of climate change. The court found that the NMFS adequately explained why the foreseeability of the species’ response to climate change was difficult to predict. The court also concluded that the NMFS appropriately based its foreseeable future timeframe on the particular species and that NMFS was not required, for example to apply the longer time frame used in listing decisions for various seal species. Natural Resources Defense Council, Inc. v. Coit, No. 20-cv-1150 (D.D.C. Mar. 31, 2022)

Indiana Federal Court Directed Forest Service to Consider Project’s Impacts on Lake

The federal district court for the Southern District of Indiana found that the U.S. Forest Service failed to evaluate the impacts of a vegetation management and restoration project in the Hoosier National Forest on a nearby lake that was the sole source of drinking water for 120,000 people. The court rejected other claims under the National Environmental Policy Act and Endangered Species Act. The court’s decision did not address allegations in the complaint related to the forest’s role as a carbon sink and the Forest Service’s reliance on long-term offsetting of carbon emissions. Monroe County Board of Commissioners v. U.S. Forest Service, No. 4:20-cv-00106 (S.D. Ind. Mar. 30, 2022)

New York Federal Court Upheld Summer Flounder Fishery Allocation Rule

The federal district court for the Southern District of New York rejected New York State’s challenge to a 2020 allocation rule for the summer flounder fishery. The court found that the allocation rule was consistent with the Magnuson-Stevens Fishery Conservation and Management Act and not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The court described as “without merit” New York’s argument that NMFS ignored data that showed northward shift in the fishery (allegedly due to factors that included warming ocean waters). The court found that NMFS did consider the shift and properly weighed that fact against other considerations when adopting the 2020 allocation rule. New York v. Raimondo, No. 1:21-cv-00304 (S.D.N.Y. Mar. 29, 2022)

Oregon Federal Court Declined to Stop Logging of Suitable Spotted Owl Habitat

The federal district court for the District of Oregon denied a motion for a temporary restraining order/preliminary injunction to block logging of suitable spotted owl habitat on U.S. Bureau of Land Management land in southern Oregon. The court found that the plaintiffs failed to show serious questions going to the merits of their Endangered Species Act claims, including their argument that a conservation measure that was part of the proposed action—promoting development of spotted owl habitat in Late-Successional Reserves (LSRs)—was not likely to result in the claimed benefits because climate change was increasing wildfire frequency, size, and severity. The court found that the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion considered climate change and fires’ impacts on spotted owl critical habitat, including in the LSRs, and that the FWS’s use of historical wildfire data was entitled to significant deference. Klamath Siskiyou Wildlands Center v. U.S. Fish & Wildlife Service, No. 1:21-cv-00058 (D. Or. Mar. 23, 2022)

California Federal Court Remanded Challenges to Biological Opinions for Water Diversion Projects

The federal district court for the Eastern District of California granted federal defendants’ motion for voluntary remand without vacatur in two cases challenging biological opinions issued regarding two major water diversion projects in California, the Central Valley and State Water Projects. The court also imposed an interim operations plan through the end of the 2022 water year in September 2022 while the federal defendants conduct a re-initiated consultation process. The court denied the Pacific Coast Federation of Fishermen’s Associations’ request for alternative injunctive relief that would impose a different set of interim measures. The cases—which are stayed through the end of September 2022—involve alleged violations of the Endangered Species Act and National Environmental Policy Act, including allegations that the analysis supporting the conclusions that the projects were not likely to jeopardize the continued existence of threatened and endangered fish species or to destroy or adversely modify their critical habitat did not adequately consider climate change impacts. California Natural Resources Agency v. Raimondo, Nos. 1:20-cv-00431, 1:20-cv-00426 (E.D. Cal. Mar. 14, 2022)

Montana Federal Court Said Challenge to Keystone XL Permit Was Moot

The federal district court for the District of Montana dismissed as moot a case brought by environmental groups to challenge President Trump’s issuance in 2019 of a Presidential Permit for the Keystone XL oil pipeline. President Biden revoked the Presidential Permit in January 2021. In May 2021, the court determined that the case was not moot because the court could still grant relief such as the removal of constructed portions of the project. Since that time, the project’s developer had removed the border-crossing segment of the pipeline at issue in this case and would relinquish a remaining right-of-way grant once reclamation measures were deemed successful. In addition, there was no longer a possibility that a federal court in Texas would reinstate the Presidential Permit because the Texas court had ruled that that the challenge to its revocation was moot and there was no appeal. Indigenous Environmental Network v. Trump, No. 4:19-cv-00028 (D. Mont. Mar. 11, 2022)

Parties Agreed to Dismissal of Challenges to Grant of Right-of-Way for Keystone XL

In another case in Montana federal district court challenging Trump-era authorizations for the Keystone XL project, environmental groups, federal defendants, and the project’s developers stipulated to the voluntary dismissal without prejudice of a challenge to a right-of-way and a temporary use permit for the pipeline to cross federal land. In a separate case challenging the right-of-way grant and permit, two tribes voluntarily dismissed the action without prejudice. Bold Alliance v. U.S. Department of the Interior, No. 4:20-cv-00059 (D. Mont. Mar. 8, 2022); Rosebud Sioux Tribe v. U.S. Department of Interior, No. 4:20-cv-00109 (D. Mont. Mar. 4, 2022)

Environmental Appeals Board Rejected Challenge to Corrective Action Permit that Raised Climate Change-Related Concerns

The U.S. Environmental Protection Agency (EPA) Environmental Appeals Board (EAB) denied a petition for review of a corrective action permit imposing remediation requirements for polychlorinated biphenyls (PCBs) in the Housatonic River in Massachusetts and Connecticut. The petitioners had argued that EPA failed to demonstrate that a site near the river was suitable for disposal of PCBs, arguing, among other things, that “[o]bviously, no onsite facility can be guaranteed forever against leakage, especially considering the effects of climate change.” The petitioners also cited the risks of disturbance of contaminated sediment during climate-related disasters where PCBs were left in the environment. The EAB found that the petitioners failed to advance a “substantive critique” of EPA’s analysis of the risks “short of vague allegations … that eventually landfills will leak and groundwater monitoring will fail.” In re General Electric Co., RCRA Appeal No. 21-01 (EAB Feb. 8, 2022)

Rhode Island Court Temporarily Blocked Sale of Electric/Gas Utility

A Rhode Island Superior Court granted the Rhode Island Attorney General’s emergency motion for a stay of a Rhode Island Division of Public Utilities and Carriers order approving the sale of the Narragansett Electric Company—which provides electric and natural gas service to approximately 780,000 customers in Rhode Island. GoLocalProv reported that the court’s decision stated that “although this Court agrees that efficiency is an important consideration, efficiency cannot be prioritized over the level of diligence required for a transaction of this magnitude.” The Attorney General’s complaint asserted multiple grounds for challenging the transaction, including an alleged failure to consider whether it was consistent with the State’s Act on Climate and how the new owner would “ensure the same or better storm response than the services currently provided … without increasing the costs of such response.” The court is hearing the case on an expedited schedule. Oral argument on the underlying appeal is scheduled for April 12, 2022. Neronha v. Rhode Island Division of Public Utilities & Carriers, No. PC-2022-01095 (R.I. Super. Ct. Apr. 1, 2022)

Citing Green Energy Support and Emission Reduction Requirements, Rhode Island Court Declined to Enjoin Wind Turbine Operation

In a lawsuit asserting that a wind turbine installed at Portsmouth High School in Portsmouth, Rhode Island, constituted a public and private nuisance, a Rhode Island Superior Court denied a motion for a preliminary injunction. The court found no irreparable harm rising to the level needed for a preliminary injunction and also found that the plaintiffs failed to establish a likelihood of success on the merits and that granting the injunction would disrupt the status quo. Regarding the balance of the equities, the court noted that the public in Portsmouth and Rhode Island “are generally in favor of wind energy to help create more green, renewable energy,” and that Portsmouth voters had directly approved the construction of a wind turbine at this location. The court also cited Rhode Island law’s requirement for reduction of statewide greenhouse gas emissions and therefore found “the public interest better served by allowing the wind turbine to continue spinning.” Wilkey v. WED Portsmouth One, LLC, No. NC-2021-032 (R.I. Super. Ct. Mar. 23, 2022)

California Court Found that City of Santee Gave Insufficient Consideration to Wildfire Evacuation in CEQA Review

A California Superior Court found that the absence of relevant information about project-specific wildfire evacuation impacts in an environmental impact report (EIR) for a mixed-use development constituted a prejudicial abuse of discretion. The court further found that the public “was not informed as to the extent to which the project would expose them to significant risk of loss, injury or death regarding evacuation timing” or “the risk of injury or death if residents are instructed to remain on site while the fires burn around them.” In addition, the court found that responses to comments about wildfire evacuation were inadequate and that the City of Santee violated the California Environmental Quality Act (CEQA) when it decided not to recirculate the EIR after an extension road was removed from the project. The court said the public was not provided an adequate opportunity to comment on the road removal’s impact on the wildland fire evacuation plan. The court did not address the petition’s allegations regarding inadequate analysis of greenhouse gas impacts. Preserve Wild Santee v. City of Santee, No. 37-2020-00038168-CU-WM-CTL (Cal. Super. Ct. Mar. 3, 2022)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Update on State and Local Government Climate Cases Against Fossil Fuel Companies

In addition to the Hawai‘i state court’s final orders on fossil fuel companies’ motions to dismiss Honolulu’s case (discussed above), the following developments occurred during March 2022 in the nuisance and consumer protection climate change cases brought by states against fossil fuel industry defendants.

• In fossil fuel industry defendants’ appeal of a remand order in the case brought by the Minnesota Attorney General, oral argument was held in the Eighth Circuit on March 15 before Judges L. Steven Grasz, David R. Stras, and Jonathan A. Kobes. Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir.)
• Fossil fuel industry defendants filed their opening brief in their appeal of the remand order in the climate change case brought by the State of Delaware. Amicus briefs in support of the defendants and reversal were filed by National Association of Manufacturers, the U.S. Chamber of Commerce, and 17 states led by Indiana. Delaware v. BP America Inc., No. 22-1096 (3d Cir.)
• Briefing on the State of Vermont’s motion to remand its climate case against fossil fuel industry defendants was completed. Vermont v. Exxon Mobil Corp., No. 2:21-cv-260 (D. Vt.)

 

Youth Plaintiffs Claimed Utah Fossil Fuel Policy Violated Due Process Rights

Youth plaintiffs filed a lawsuit in Utah state court alleging that the State of Utah and other State defendants violated their substantive due process rights to life and liberty under the Utah Constitution by maximizing, promoting, and systematically authorizing the development of fossil fuels. The plaintiffs alleged that the State’s “Fossil Fuel Development Policy” and the defendants’ implementation of the Policy caused and contributed to dangerous air quality and  climate change that harmed the plaintiffs, and that the youth plaintiffs were “disproportionately vulnerable to the harms of the climate crisis.” The plaintiffs also contended that the defendants had long-standing knowledge (since the 1960s) of the air quality and climate change dangers of fossil fuels. The plaintiffs sought declaratory relief—which the plaintiffs alleged “would substantially influence and stop the conduct of Defendants”—and attorneys’ fees and costs. Natalie R. v. State of Utah, No. 220901658 (Utah Dist. Ct., filed Mar. 15, 2022)

FOIA Lawsuit Sought Documents from Office of Special Presidential Envoy for Climate

A Freedom of Information Act (FOIA) lawsuit was filed in the federal district court for the District of Columbia to compel the U.S. Department of State to disclose meeting requests and communications involving a senior advisor to the Special Presidential Envoy for Climate. The plaintiff alleged that release of the documents was in the public interest because the documents would “give the public greater insight into the energy and climate priorities of the federal government at a time when high energy prices and inflation are prominent kitchen table concerns.” The plaintiff also alleged that release of the documents would “contribute to the public’s understanding of the role of the newly formed Special Envoy for Climate Change, as well as how high-ranking officials within the Department are approaching compliance with applicable laws, rules, and regulations regarding foreign policy-making determinations, disclosures of work on behalf of foreign entities, and potential conflicts of interest.” Protect the Public’s Trust v. U.S. Department of State, No. 1:22-cv-00799 (D.D.C., filed Mar. 23, 2022)

Property Owner Challenged Constitutionality, Public Benefit of Development Restrictions in South Burlington

A City of South Burlington property owner filed a lawsuit in federal court in Vermont asserting that the designation of its land as a “Habitat Block” constituted an illegal taking under the U.S. and Vermont Constitutions and violated the plaintiff’s equal protection and due process rights, the Vermont Constitution’s Common Benefit Clause, and Vermont statutes. The plaintiff alleged that the City’s amendments of its Land Development Regulations to prohibit development of and other actions in Habitat Blocks would have negative environmental consequences, including increases in greenhouse gas emissions due to increased distances that employees would have to travel to the center of Chittenden County because housing would not be available closer to their places of employment. The plaintiff contended that the “Habitat Blocks” did not promote the public good but instead decreased it. 835 Hinesburg Road, LLC v. City of South Burlington, No. 5:22-cv-00058 (D. Vt., filed Feb. 24, 2022)

Community Groups Challenged Authorization of Gas Pipeline in Rural Illinois

Community and environmental groups filed a petition for review in the Illinois Appellate Court challenging the Illinois Commerce Commission’s (ICC’s) approval of a certificate of public convenience and necessity for a natural gas pipeline in Pembroke Township, which the groups described as “an historic Black farming community whose concerns were not considered in the approval process and who could be severely harmed by the pipeline.” Before the ICC, the petitioners argued that the project was “out of step” with State policy priorities of reducing greenhouse gas emissions and fossil fuel use. They contended that even though the pipeline company claimed to be fulfilling “decades-long” efforts to bring natural gas to the area, the prior perception of natural gas as “a cost-effective and cleaner alternative to other fossil fuels was based on unknown or unacknowledged climate impacts, and before emissions reductions needed to avoid dangerous levels of warming were fully understood.” The petitioners stated: “Those perceptions have been disproven. Today, the policy of the State of Illinois is decarbonization and equitable acceleration of clean energy adoption.” Pembroke Environmental Justice Coalition v. Illinois Commerce Commission, No. 3-22-__ (Ill. App. Ct., filed Mar. 23, 2022)

Environmental Justice Group Challenged Environmental Review for Oakland Marine Terminal Project

An environmental justice organization challenged the Port of Oakland’s approval of the Eagle Rock Aggregates Oakland Terminal Project and the supplemental environmental impact report (SEIR) for the project. The organization alleged that the project—a marine terminal that would import, store, and distribute sand and gravel—would result in increased air pollution and greenhouse gas emissions, among other impacts, and would exacerbate existing problems in West Oakland. The organization further alleged that the SEIR neglected whole categories of impacts, including analysis and mitigation of impacts on greenhouse gas emissions, fine particulate emissions, and energy. West Oakland Environmental Indicators Project v. Port of Oakland, No. 22CV008905 (Cal. Super. Ct., filed Mar. 24, 2022)

At Least Three Lawsuits Filed to Challenge Oregon’s Climate Protection Program Rules

Twelve businesses and trade groups filed a lawsuit in the Oregon Court of Appeals challenging the Climate Protection Program rules approved by the Oregon Environmental Quality Commission in December 2021 to reduce greenhouse gas emissions from transportation fuels and natural gas. The Albany Democrat-Herald reported that the petition alleges that the rules “will have a profound and unprecedented impact on everyday life in Oregon” because business and consumer use of the fuels is central to Oregon’s economy, and that a representative of the Oregon Farm Bureau, one of the plaintiffs, contended that the Department of Environmental Quality exceeded its statutory authority when it enacted the rules. Three utilities also filed a lawsuit challenging the rules, as did the Western States Petroleum Association. Lawsuits Challenging Oregon's Climate Protection Program Rules

Sierra Club Challenged Approval of LNG Storage Facilities in Wisconsin

Sierra Club petitioned for review of a Public Service Commission of Wisconsin (PSC) decision approving a certificate of authority for two liquefied natural gas (LNG) storage facilities. Sierra Club asserted that the PSC made errors of law, fact, procedure, and discretion when it determined that the application for the certificate of authority met the standards of the Wisconsin Environmental Policy Act (WEPA) and WEPA regulations, Wisconsin’s Energy Priorities Law, and the certificate of authority statute. In particular, Sierra Club contended that the PSC erred in its findings regarding the need for the project, including because the applicants’ analysis assumed “exponential growth” in natural gas use for at least 10 years and no reduction in gas use at any point. Sierra Club alleged that these projections were inconsistent with federal and State policy commitments to reduce climate pollution. Sierra Club also alleged that the PSC’s environmental assessment did not acknowledge or discuss the facilities’ greenhouse gas impacts or the conflicts with federal and State climate change policy. Sierra Club v. Public Service Commission of Wisconsin, No. 2022CV000525 (Wis. Cir. Ct., filed Mar. 10, 2022)

Lawsuit Challenged Use of Sustainable Communities Environmental Assessment for Eldercare and Daycare Facilities in Los Angeles

A resident of Westwood, California, filed a petition challenging the City of Los Angeles’s approvals of an eldercare facility that included senior independent units, assisted living care units, and Alzheimer’s/dementia care units, as well as a daycare facility and other uses. The petitioner contended that the City Council incorrectly determined that the project qualified for streamlined environmental review in a Sustainable Communities Environmental Assessment (SCEA) under the California Environmental Quality Act. She alleged that the City relied on a too-broad definition of SCEA, which she alleged was intended to apply to predominantly residential projects that would generate persons likely to use transit as part of the State’s strategy to reduce greenhouse gas emissions through increased transit use. Zinderman v. City of Los Angeles, No. 22STCP00655 (Cal. Super. Ct., filed Feb. 25, 2022)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

 

FEATURED CASE

Australian Federal Court Overturned Decision in Sharma Case

On March 15, 2022, the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister for the Environment to avoid causing injury to children arising from carbon dioxide emissions. The three judges had separate reasonings. Chief Justice Allsop found that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.” Justice Beach found insufficient “closeness” between the Minister and the children but left open the possibility of a future claim if any of the children suffered damage. Justice Wheelahan found that (i) the Environment

Protection and Biodiversity Conservation Act 1999 (EPBC Act) cannot establish a duty of care relationship between the Minister and children, (ii) establishing a duty would be incoherent with the Minister’s functions under the EPBC Act, and (iii) it was not foreseeable that approval of the coal mine extension would cause personal injury to the children. Despite allowing the Minister’s appeal, the Court rejected the Minister’s argument that the primary judge made findings based on evidence of climate change that were unfounded. This means that the primary judge’s findings of fact about the risk of harm of climate change to children remain. The Full Federal Court noted that “the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity” were never in dispute. Sharma and others v. Minister for the Environment (Australia, High Court) (a commentary on the decision is available here)

 

DECISIONS & SETTLEMENTS 

UK’s High Court of Justice Issued Split Judgment in UK Export Finance’s Funding of Mozambique Project

In September 2020, Friends of the Earth England Wales and Northern Ireland (FoE EWNI) brought a legal challenge against UK Export Finance’s (UKEF’s) decision (the “Decision”) to provide over $1 billion of UK taxpayers’ money to help finance a liquefied natural gas (LNG) project off the coast of Mozambique. Through the project, the energy company Total (an interested party) aims to extract 43 million tonnes of LNG per year for 32 years, which, according to the plaintiffs, will result in total combustion emissions of 4.3 billion tonnes of CO2e. On March 15, 2022, the High Court issued a judgment with a split two-judge court. The court decided to dismiss the claim, while at the same time granting FoE EWNI permission to appeal. Making clear findings of illegality, Mrs. Justice Thornton sent an opinion that “[i]n order for UKEF to demonstrate compliance with Article 2(1)(c) [of the Paris Agreement], it had to demonstrate that funding the project is consistent with a pathway towards limiting global warming to well below 2°C and pursuing efforts to 1.5°C.... The failure to quantify the Scope 3 emissions, and the other flaws in the Climate Report mean that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2(1)(c) of the Paris Agreement on Climate Change and a pathway to low greenhouse gas emissions.” Friends of the Earth v. UK Export Finance (UK, High Court of Justice)

UK’s Case on National Policy Statements Refused Permission to Proceed

On December 11, 2020, Transport Action Network (TAN), an environmental advocacy NGO, filed a suit arguing that the UK government’s National Policy Statement on National Networks must be reassessed in light of more ambitious climate targets. The policy statement, made in 2014, set the strategy for the UK’s road building program. According to news reports, TAN alleges that significant changes to climate policy since 2014, including legally binding targets to reach a net zero carbon economy by 2050, necessitate a review of the policy. On March 9, 2022, the court refused permission for the claim to go to a full hearing. Transport Action Network v. Secretary of State for Transport (on National Policy Statement) (UK, High Court of Justice)

Brazilian Supreme Court Held Hearing on Two Climate Cases

On March 18, 2022, the minister and president of the Federal Supreme Court, Luiz Fux, admitted seven environmental cases on the agenda for March 30, 2022. This move by the STF is considered historic, and was called the “green agenda.” Justice Carmén Lúcia read a summary of the case, and the parties and amici presented oral arguments. Justice Carmén Lúcia read part of her vote. The rest of her decision will be shared on April 6, 2022. PSB et al. v. Brazil (on deforestation and human rights) (Brazil, Supremo Tribunal Federal)

Greenpeace Withdrew Claim Against Louvre Museum

On December 7, 2021, Greenpeace France brought an action before the Paris Administrative Court seeking disclosure of the partnership between the Louvre Museum and the TotalEnergies Foundation as well as the list of members of the Louvre Business Circle. The responsibility of public institutions that accept donations from large oil and gas companies was at stake. On January 6, 2022, the French commission on access to administrative documents (Commission d’accès aux documents administratifs) issued a favorable decision for Greenpeace. The Louvre Museum had until February 6, 2022, to send all the requested documents (except the list of projects financed personally by the chairman and CEO of TotalEnergies). Total sent the documents to Greenpeace on January 27, 2022. As a result, Greenpeace France withdrew its claim (which lost its purpose since they obtained the requested documents). Greenpeace France v. France (France, Paris Administrative Court)

UK’s Court of Appeal Decided on Grant of Planning Permission Without Assessment of GHG Emissions

The case concerns Surrey County Council’s (SCC) 2019 decision to grant planning permission to a company named Horse Hill Developments Limited to expand an existing site to add four new wells for the production of hydrocarbons (crude oil) over a 20-year period. The environmental statement issued by the developer provided an assessment of the direct (scope 1 and 2) greenhouse gas (GHG) emissions associated with the project but did not assess the emissions that would subsequently be produced as a result of using the product (scope 3 emissions). The Court of Appeal’s decision was handed down on the February 17, 2022. The decision was split 2:1. The majority ruling was that SCC’s decision to grant planning permission without the environmental impact assessment (EIA) considering the end-use GHG emissions was lawful. The decision-maker had discretion as to whether to include these impacts in the EIA. The dissenting judge, Lord Justice Moylan, concluded that the Council’s decision was unlawful. R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others) (UK, Court of Appeal)

UK’s Net Zero Case Granted Permission to Proceed

On October 19, 2021, the Secretary of State for Business Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) adopted the Net Zero Strategy (NZS) and the Heat and Buildings Strategy (HBS). On January 12, 2022, Friends of the Earth England Wales and Northern Ireland (FoE) filed a claim for judicial review against the SoS, in relation to the NZS and the HBS. FoE argues that both strategies were unlawfully adopted. FoE, along with ClientEarth and Good Law Project, received permission to proceed on all grounds on March 1, 2022. The court found that the cases all had a realistic prospect of success, and merited a full substantive hearing. The grounds from all organizations will be heard together. A hearing is expected to take place in 2022. R (oao Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy (UK, High Court of Justice)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

German Youth Filed New Claim Questioning Germany’s Revised Climate Law After Neubauer

In January 2022, a group of German minors and young adults filed a constitutional challenge to Germany’s updated Federal Climate Protection Act (KSG). Claimants argue that the KSG’s amended GHG emissions reduction paths are insufficient in light of Germany’s constitutional and international legal obligations. This constitutional challenge builds on the Constitutional Court’s order in Neubauer v. Germany. In response to the decision, the federal lawmakers passed a bill approving an adapted KSG, which has been in effect since August 2021. It raised the reduction target for 2030 from 55% to 65% (as compared to 1990 levels), updated the reduction path for the years 2031–2040, elaborated on the legislative involvement in the determination of the individual sector budgets from 2031 onwards, and brought the target year for achieving carbon neutrality from 2050 to 2045. Relying on a new factual basis and scientific updates, claimants argue that the amended KSG and its reduction targets are still insufficient to protect their fundamental rights. Claimants argue that both reduction paths, i.e., 2021–2030 and after 2030, exceed the budget limits and put Germany way above the Paris and Glasgow targets. In addition, claimants argue that the risk of considerable impairments of their fundamental rights is further increased by the lack of clear obligations on and coordinated efforts across the federal states. Claimants ask the Constitutional Court to declare parts of the amended KSG unconstitutional, order the federal legislature to re-regulate the reduction pathway in light of new scientific constraints, and make provision for the distribution of the reduction burden across the federal states. Steinmetz, et al. v. Germany (Germany, Federal Constitutional Court)

New Case Filed in Guyana Against Oil Companies for Gas Flaring

In February 2022, three Guyanese citizens filed suit alleging that the Guyanese Environmental Protection Agency’s (EPA’s) decision to grant a modified environmental permit to Esso violated Guyanese environmental laws, where the modified permit allows Esso/ExxonMobil to flare gas in exchange for paying a fee. The plaintiffs seek several court orders, including quashing the EPA’s decision to grant the modified permit, and ordering the EPA to issue reports on Esso’s activities, failures to uphold environmental provisions in the permit, and the emissions impacts of Esso’s operations. Henry v. EPA (Guyana Supreme Court)

New German Case filed Against Volkswagen for Climate Mitigation

In November 2021, three claimants associated with Greenpeace Germany and Fridays for Future Germany filed an action against Volkswagen AG (VW) in the Regional Court of Braunschweig for not yet having clearly and irreversibly committed to phase out the sale of passenger cars and light commercial vehicles with internal combustion engines (ICE) by 2030. The claimants argue that by failing to do so, the automaker is violating the fundamental right to climate protection and impinging upon the rights and freedoms of future generations, as phase-out would be necessary for the company to adhere to its allocated carbon budget. The claimants ask the court to order VW: (i) to stop placing and to have ceased placement of new ICE passenger cars and light commercial vehicles on the market after December 31, 2029; (ii) to take appropriate measures to ensure that the annual aggregated CO2 emissions (Scope 1, 2 and 3) by VW and its subsidiaries, resulting from the development, production, and distribution of passenger cars and light commercial vehicles are reduced by at least 65% by 2030 (compared to 2018 levels), and, at a minimum, to keep them below this level; (iii) to take appropriate measures to ensure that throughout the Volkswagen Group, i.e. across all fully consolidated subsidiaries and brands involved in the development, production, and sale of passenger cars, light commercial vehicles, and passenger car services, at most 25% of the total number of passenger cars and light commercial vehicles put into circulation between 2021 and the end of 2029 are ICE vehicles; and (iv) to ensure that VW exercises its legal and actual influence in its joint ventures (not fully consolidated shareholdings) in such a way that the goals described in (i), (ii), and (iii) are met. The requested ban on the production of new ICE vehicles would take effect earlier than the 2035 effective ban proposed by the EU in July 2021. Kaiser, et al. v. Volkswagen AG  (Regional Court of Braunschweig)

French Greenwashing Case Questions Total’s Net-Zero Commitment

On March 2, 2022, Greenpeace France, Amis de la Terre, and Notre Affaire à Tous filed a request to obtain an injunction and compensation against TotalEnergies SE and TotalEnergies Electricité et Gaz France. The case argues that Total’s flagship advertising campaign accompanying its “rebrand” to TotalEnergies misled French consumers, because (i) Total’s claims to be aiming for “net zero” by 2050 and becoming a major player in the energy transition are false and (ii) the advertising claims promoting the environmental virtues and transition role of gas and biofuels are misleading. According to the plaintiffs, closer scrutiny of the facts reveals that companies’ behavior is in total opposition to the requirements of the transition to carbon neutrality by 2050. Therefore, this commercial campaign entails a substantial alteration of the economic behavior of the consumer and should be considered as misleading commercial practices within the meaning of articles L.121-2 and L.121-3 of the French Consumer Code. The organizations seek an injunction to stop the campaign, the publication of the decision, the compensation of the moral damages suffered by the organizations, and the repayment of legal fees. This case was brought under the French national law implementing the European Union Unfair Commercial Practices Directive. Therefore, the outcome of this case will be relevant to other companies in the EU. To the best of our knowledge, this is the first case challenging an oil and gas major’s net-zero claims for greenwashing in Europe. Greenpeace France and Others v. TotalEnergies SE and TotalEnergies Electricité et Gaz France (France, Court of Paris)

 

New Just Transition Case in Chile Questions the Lithium Mining’s Bidding Process

On January 10, 2022, the regional government of Atacama brought a case against the Ministry of Mining questioning the bidding process of the lithium production application, which the regional government argues was carried out without public participation and in the absence of any assessment of the activity’s potential environmental impacts on the region. The case relates to the Chilean government’s 2021 call for applications to increase lithium production, which intends to facilitate the entry of national and foreign companies in the lithium market, promoting production and supporting the development of new technologies that enable the energy transition and the fight against global warming. Lithium is a key element of the energy transition given the increased demand for rechargeable lithium-ion batteries for supplying the power and transport sectors with renewable energy. The regional government argues that the project will be developed in the Atacama Salt Flats, representing a threat to its biodiversity. Atacama also points out that the project might destroy wetlands, the availability of water, which is already scarce in the area, and the destruction of cultural heritage, as it is a sector of high touristic interest. While the regional government recognizes that the call for lithium bidding responds to international pressure to guarantee an energy transition, it highlights the preliminary step to assess the impacts of the increased lithium mining. The regional authority requests that the contracts be deemed null or, in the alternative, seeks to restart the bidding process and ensure that the regional government is properly consulted. On January 14, 2022, the Court of Appeals of Copiapo granted the plaintiff’s preliminary request and suspended the contracts while the writ of protection is pending. Regional Government of Atacama v Ministry of Mining and Other (Chile, Court of Appeal of Copiapo)

Danish NGOs Questioned Environmental and Climate Impacts of Government’s Adaptation Project

In October 2021, Klimabevægelsen (the Climate Movement, a Danish NGO) filed a suit against the Danish Ministry of Transportation, challenging the project to construct an artificial peninsula in Copenhagen Harbor. The claim was filed after the Danish Parliament passed the bill on the construction of the artificial peninsula, also known as “Lynetteholmen,” in June 2021. In addition to housing approximately 35.000 people and adding many jobs, the Ministry argues that the peninsula constitutes an adaptation measure and will contribute to safeguarding the City of Copenhagen against climate change-related sea-level rise. The claimants allege that the project is not in accordance with Danish and European climate neutrality targets, as it does not account for the peninsula’s impact on greenhouse gas emissions and the environment in general. The claimants also allege that the Ministry of Transportation has (i) not complied with the EIA Directive by failing to conduct an EIA for the collected project and instead splitting it into sub-projects (so-called salami slicing), and (ii) not complied with the SEA (Strategic Environmental Assessment) Directive by failing to conduct an SEA. The Climate Movement v. Ministry of Transportation (Denmark)