April 2023 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@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #168:
Hawai‘i Supreme Court Finds State Constitution’s Environmental Rights Clause Encompasses Right to a Life-Sustaining Climate System, Supporting State Rejection of Biomass Energy Deal
On March 13, 2023, the Hawai‘i Supreme Court affirmed the Public Utilities Commission’s (PUC’s) denial of approval for the energy company Hu Honua Bioenergy, LLC (Hu Honua) to provide power for Hawai‘i Island’s electric grid from a proposed biomass energy facility. The court found that the PUC had “faithfully followed” the court’s remand instructions in a 2019 decision that vacated the PUC’s 2017 approval of the deal. The 2019 decision directed the PUC to give a community action group an opportunity to “meaningfully address” the project’s potential impacts on the groups’ members right to a clean and healthful environment. The 2019 decision also instructed the PUC to give “express consideration” to greenhouse gas emissions that would result from the project, and also to whether the cost of energy was reasonable in light of potential greenhouse gas emissions and whether the deal’s terms were “prudent and in the public interest.” In its 2023 decision, the Supreme Court first found that the PUC’s consideration of pricing was appropriate, given the court’s explicit remand language and the PUC’s constitutional duty to act in the public interest. The court next rejected Hu Honua’s contention that the PUC could only compare the biomass facility’s greenhouse gas emissions and other characteristics with those of fossil fuel plants, and not with other types of renewable energy projects. The court found that Hawai‘i Legislature intended to require the PUC to consider climate change and to reduce emissions. Regarding Hu Honua’s argument that recent amendments to the PUC’s governing statute barred the PUC from considering greenhouse gas emissions from biomass, the Supreme Court noted that the governing statute defined the Hawai‘i Constitution’s “right to a clean and healthful environment, which encompasses the right to a life-sustaining climate system,” and that disregarding greenhouse gas emissions from biomass would undermine this mandate. Finally, the court rejected Hu Honua’s argument that the PUC violated the company’s due process rights, including by creating a carbon neutrality requirement. The court first noted that it was Hu Honua, not the PUC, that “introduced the idea of carbon neutrality into the proceedings” by promising to offset its greenhouse gas emissions by planting trees. The court also indicated that even if the PUC adopted a carbon neutrality standard, “it is not so clear that the agency would have erred,” given the PUC’s constitutional obligation to protect the “affirmative” and “constantly evolving” right to a life-sustaining climate system. The court cited the people of Hawai‘i’s legislative declaration of a “climate emergency” and described the “immediate threats” faced by the state, including sea level rise and ocean warming and acidification. The court stated: “The reality is that yesterday’s good enough has become today’s unacceptable. The PUC was under no obligation to evaluate an energy project conceived of in 2012 the same way in 2022. Indeed, doing so would have betrayed its constitutional duty.” Associate Justice Michael D. Wilson joined the majority’s opinion but also authored a concurring opinion holding that the right to a life-sustaining climate system was derived not only from Hawai‘i Constitution’s enumerated right to a clean and healthful environment but also from the Hawai‘i Constitution’s due process clause and public trust doctrine. Regarding due process, the concurrence stated that “[i]t is beyond cavil that a life-sustaining climate system is implicit in the concept of ordered liberty and lies ‘at the base of all our civil and political institutions.’” With respect to the public trust doctrine, the concurring opinion found that the climate system “is a ‘natural resource’ held in trust by the State for the benefit of present and future generations,” and that to act in accordance with its public trust and statutory obligations, the PUC “must make reduction of greenhouse gas emissions the primary consideration” in determining whether to approve energy deals such as the one at issue in this case. In re Hawai‘i Electric Light Co., No. SCOT-22-0000418 (Haw. Mar. 13, 2023)
DECISIONS AND SETTLEMENTS
Fifth Circuit Ruled that States Lacked Standing to Challenge Interim Estimates for Social Cost of Greenhouse Gases
The Fifth Circuit Court of Appeals dismissed a lawsuit brought by Louisiana and other states to challenge President Biden’s executive order re-establishing an interagency working group to develop guidance on the social cost of greenhouse gases (SCGHG) and the SCGHG Interim Estimates published by the working group. The Fifth Circuit also vacated a preliminary injunction that enjoined federal defendants from using any work product of the working group or any SCGHG estimates that did not comply with Circular A-4 (cost-benefit analysis guidance issued by the Office of Management and Budget in 2003). The Fifth Circuit ruled that the states did not meet their burden of establishing standing because they did not allege an injury in fact. The court found that the fiscal, procedural, and sovereignty-related harms alleged by the states were harms that could be caused, not by the Interim Estimates, but by regulations that might result from the Interim Estimates. The Fifth Circuit said this “mere ‘possibility of regulation’” did not satisfy injury in fact requirements. Louisiana v. Biden, No. 22-30087 (5th Cir. Apr. 5, 2023)
Eighth Circuit Rejected Arguments for Federal Jurisdiction in Minnesota’s Climate Case Against Fossil Fuel Defendants
The Eighth Circuit Court of Appeals affirmed the remand to state court of the State of Minnesota’s climate change lawsuit against fossil fuel industry defendants. In doing so, the court noted that it was joining five of its sister circuits in rejecting arguments for federal jurisdiction in climate change litigation brought by state and local governments. The Eighth Circuit concluded that Minnesota’s case—which asserts state common law fraud claims and violations of Minnesota consumer protection statutes—did not arise under federal law because the exceptions to the well-pleaded complaint rule for complete preemption and cases necessarily raising substantial and disputed federal questions (Grable jurisdiction) did not apply. With respect to complete preemption, the Eighth Circuit held that federal common law on transboundary pollution did not preempt Minnesota’s claim. Regarding Grable jurisdiction, the Eighth Circuit found that the defendants failed to identify elements of Minnesota’s claims that required a court to interpret federal common law or to “second-guess Congress’s cost-benefit rationales in allowing the production and sale of fossil fuels.” The Eighth Circuit also rejected other grounds for federal jurisdiction. First, the court found that requirements for jurisdiction under the Outer Continental Shelf Lands Act (OCSLA) were not met because the alleged “misinformation campaign” was not an “operation” carried out on the Outer Continental Shelf and, in any event, the case did not have the requisite nexus to the defendants’ fossil fuel production on the Outer Continental Shelf. Second, the Eighth Circuit found that the case was not removable under the federal officer removal statute because the connection between Minnesota’s claims and any action under the direction of a federal officer (e.g., military fuel production, operations on the Outer Continental Shelf, and participation in strategic petroleum infrastructure) was too remote. Third, the Eighth Circuit held that the lawsuit was not a removable “class action” under the federal Class Action Fairness Act. One judge wrote a concurrence opining that the case should arise under federal law. The concurrence said Minnesota’s complaint “all but dares the companies to raise a federal-preemption defense” and that “no one doubts that they will or that it will be the focal point of the litigation.” The concurring opinion contended that in such a situation, there was “no reason” for the removal rules to block federal jurisdiction but noted that “only Congress or the Supreme Court gets to make that call.” Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir. Mar. 23, 2023)
Fifth Circuit Said Corps of Engineers Was Immune from Suit Seeking Supplemental EIS to Consider Impacts of More Frequent Use of Mississippi River Spillway
The Fifth Circuit Court of Appeals affirmed the dismissal of claims brought by a group of Mississippi municipalities and associations to compel the preparation of a supplemental environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) to address changed circumstances that resulted in more frequent use of the Bonnet Carré Spillway, which is used to divert Mississippi River water to Lake Pontchartrain instead of New Orleans. The Fifth Circuit noted that these diversions come “at a cost to the environment and to the Mississippi-based plaintiffs in this case.” The Fifth Circuit also noted that 6 of the 15 openings of the Spillway in its 89-year history had occurred in the past 10 years, with 4 of the openings occurring between 2018 and 2020, and that “[s]ome expect that matters will only get worse” due to factors including “rising global temperatures and intensified hydrologic cycles.” The Fifth Circuit agreed, however, with the district court that the U.S. Army Corps of Engineers was immune from suit. The Fifth Circuit reasoned that the Corps had no duty to prepare a supplemental EIS because while the plaintiffs identified “an abundance of new information regarding the Spillway’s usage and impacts,” they did not identify “pending decisionmaking regarding the Spillway that might hinge on the Corps’ consideration of that new information.” The plaintiffs therefore did not establish that there was “major Federal action” that remained pending that would require preparation of a supplemental EIS under NEPA, and as a result the plaintiffs could not show that the Administrative Procedure Act’s statutory waiver of sovereign immunity for claims of unlawful agency inaction applied. Harrison County v. U.S. Army Corps of Engineers, No. 21-60897 (5th Cir. Mar. 27, 2023)
Ninth Circuit Declined to Dismiss Appeals of Orders for NEPA Review of Revocation of Coal Leasing Moratorium
In a case that successfully challenged Trump administration decisions to revoke a moratorium on the federal coal leasing program, the Ninth Circuit Court of Appeals denied without prejudice conservations organizations’ motion to dismiss appeals of District of Montana rulings in 2019 and 2022 that remanded to federal defendants for review under NEPA. In their motion to dismiss the appeals by Wyoming, Montana, and the National Mining Association, the organizations argued that appeal of the 2019 order was time-barred and that the 2022 order was not an appealable final decision because the order vacated and remanded to federal agencies, who chose not to appeal. The Ninth Circuit said the organizations could renew these arguments in their merits briefing. Citizens for Clean Energy v. U.S. Department of the Interior, Nos. 22-35789, 22-35790 (9th Cir. Mar. 29, 2023)
Alaska Federal Court Denied Preliminary Injunction in Two Cases Challenging Willow Project
Two lawsuits were filed in the federal district court for the District of Alaska challenging the U.S. Bureau of Land Management’s (BLM’s) approval of the Willow Master Development Plan (Willow Project) in the National Petroleum Reserve in Alaska. The Willow Project consists of three drilling sites and related support infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads, and pipelines. BLM issued a new record of decision authorizing the project on March 13, 2023 after preparing a supplemental EIS on remand from a 2021 district court decision that found shortcomings in BLM’s 2020 review of the project, including failure to adequately assess downstream greenhouse gas emissions from foreign oil consumption. On April 3, 2023, the court denied motions for preliminary injunctions barring construction activities planned for winter 2023. Plaintiffs appealed the denial of the preliminary injunction and filed a motion in the district court for an injunction on construction activities for 14 days while they seek relief from the Ninth Circuit.
The plaintiffs in one case are six conservation groups led by Sovereign Iñupiat for a Living Arctic. They assert claims under NEPA, the National Petroleum Reserves Production Act (NPRPA), the Alaska National Interest Lands Conservation Act, and the Endangered Species Act. They assert, among other things, that BLM failed to consider a reasonable range of alternatives in the supplemental EIS, including alternatives that would meaningfully reduce greenhouse gas emissions and climate impacts. They also assert that BLM failed to take a hard look at the Willow Project’s potential direct, indirect, and cumulative impacts, including impacts on greenhouse gas emissions and climate change. In addition, the complaint asserts that the U.S. Fish and Wildlife Service failed to address impacts to polar bears as a result of greenhouse gas emissions produced from the Willow Project.
The plaintiffs in the second case are five environmental organizations led by Center for Biological Diversity. They assert claims under NEPA, NPRPA, and the Endangered Species Act. Under NEPA, they assert a failure to consider an adequate range of alternatives, including a failure to assess “any alternatives that meaningfully reduce greenhouse gas emissions.” The complaint also asserts that the supplemental EIS failed to assess the Willow Project’s “full climate consequences” by failing to assess downstream greenhouse gas emissions from reasonably foreseeable future oil development that the project will facilitate. Under the Endangered Species Act, the plaintiffs allege that the U.S. Fish and Wildlife Service and National Marine Fisheries Service failed to consider how increased greenhouse gas emissions from the project may affect survival and recovery of ice-dependent species (i.e., polar bears, Arctic ringed seals, and bearded seals).
In its order denying the plaintiffs’ requests for a preliminary injunction, the court found that the plaintiffs’ concerns regarding the long-term negative impacts of oil and gas extraction, including impact on global climate change, were not relevant to consideration of the preliminary injunction motions because the winter 2023 construction activities would not include extraction. The court found that the plaintiffs’ other allegations of harm did not establish a likelihood of irreparable harm. The court also weighed environmental harm from the winter construction activities against economic damages, benefits to most subsistence users, and state and federal legislative statements that the Willow Project was in the public interest, and found that the balance of the equities and public interest “tip sharply against preliminary injunctive relief.” The court did not reach the issue of whether the plaintiffs were likely to succeed on the merits. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:23-cv-00058 (D. Alaska, filed Mar. 14, 2023); Center for Biological Diversity v. Bureau of Land Management, No. 3:23-cv-00061 (D. Alaska Apr. 3, 2023)
Indiana Federal Court Barred Forest Service from Conducting Burn in Hoosier National Forest
The federal district court for the Southern District of Indiana granted a motion for a preliminary injunction barring the U.S. Forest Service from implementing the Houston South Vegetation Management and Restoration Project burn in the Hoosier National Forest. The court previously found that the Forest Service violated NEPA by failing to consider the project’s impacts on a lake and remanded for additional analysis. This new lawsuit asserted that the Forest Service violated NEPA by failing to prepare an environmental assessment (EA) or EIS on remand and instead relying on a “supplemental information report” (SIR) to explain why impacts on the lake would not be significant. The new complaint alleged, among other things, that the Forest Service failed to “analyze the fact that the Project itself may contribute to climate change through the emissions associated with logging older trees and repeatedly burning thousands of acres of forest land, which emits greenhouse gases during burns and reduces the long-term ability of trees in the burn areas to store excess carbon once they are burned.” In the order granting the preliminary injunction, the court found that the plaintiffs made a strong showing that the Forest Service acted arbitrarily and capriciously by preparing an SIR instead of an EA or EIS. The court also found that irreparable harm was likely to occur, given the risks posed to the environment and human health and safety, and that the public interest favored an injunction. Monroe County Board of Commissioners v. U.S. Forest Service, No. 4:23-cv-00012 (S.D. Ind. Mar. 29, 2023)
Texas Federal Court Declined to Transfer Case Challenging Rules Allowing Benefit Plan Fiduciaries to Consider ESG Factors
The federal district court for the Northern District of Texas denied the U.S. Department of Labor’s motion to transfer a lawsuit challenging the agency’s amendment of its Investment Duties regulation that governs private-sector employee benefit plans under the Employee Retirement Income Security Act of 1974 (ERISA). The amendments reversed and modified certain changes made during the Trump administration, including by providing that ERISA plan fiduciaries may consider factors such as the economic effects of climate change and other environmental, social, or governance (ESG) factors on investments. The Department of Labor’s motion argued that the proper court for the suit was either the federal district court for the District of Columbia, a district where one of the plaintiffs resides, or, at a minimum, a division in the Northern District of Texas in which more than one district judge sits. The district court found that venue was proper in the Northern District of Texas because an individual plaintiff (added in an amended complaint after the motion for transfer was filed) lived in Amarillo, Texas, and because Texas—which was one of the 25 state plaintiffs—“resides everywhere in Texas.” The court further found that the Department of Labor fell “well short” of meeting its burden of demonstrating that convenience of the parties and witnesses and the interest of justice required transfer to the District of Columbia. The court also found that the Department of Labor’s arguments that the plaintiffs were engaged in “judge-shopping” presented an “unprecedented and unworkable” standard for motions to transfer. Utah v. Walsh, No. 2:23-CV-016 (N.D. Tex. Mar. 28, 2023) (Kacsmaryk, J.)
North Dakota Federal Court Ordered Federal Government to Schedule Oil and Gas Lease Sales
In a case brought by the State of North Dakota, the federal district court for the District of North Dakota granted in part a motion for a preliminary injunction enjoining the federal defendants from implementing a “Stop” on quarterly oil and gas lease sales in the state and from withdrawing lands identified for oil and gas development in resource management plans without following Federal Land Policy and Management Act (FLPMA) procedures. As threshold matters, the court first concluded that North Dakota had standing and that the postponement or cancellation of seven of eight quarterly lease sales in 2021 and 2022 constituted final agency actions subject to review under the Administrative Procedure Act. The court also found that the claims were not time-barred. On the merits of the motion, the court found that North Dakota was very likely to succeed on its claims that the defendants violated the Mineral Leasing Act by failing “to plan for and timely complete the necessary analyses for determining whether eligible lands were ‘available’ on a quarterly basis.” The “necessary analyses” included NEPA reviews, with the court rejecting the defendants’ rationales for not holding the lease sales, including justifications based on concerns that NEPA analyses of greenhouse gas emissions were not adequate in light of judicial decisions in other courts or based on concerns that NEPA analyses would violate a Louisiana federal court injunction on use of the social cost of greenhouse gases. The court further found that the current record demonstrated that the federal defendants had instituted a “Stop” on leasing without a lawful basis. In addition, for five of the seven leases, the court found that North Dakota was likely to succeed on claims that the defendants violated the FLPMA by engaging in “a de facto withdrawal of public lands” from leasing. The court further found that North Dakota established irreparable harm to its sovereign and economic interests and that the balance of the equities and the public interest favored the injunction. The court directed the defendants to provide a schedule of when North Dakota lease sales would take place in 2023 and provide reports to the courts regarding lands nominated for inclusion in the sales. North Dakota v. U.S. Department of Interior, No. 1:21-cv-00148 (D.N.D. Mar. 27, 2023)
Oregon Federal Court Denied States’ Motion to Intervene to Oppose Youth Plaintiffs’ Motion to Amend in Juliana
On March 14, 2023, the federal district court for the District of Oregon denied motions by 18 states, led by Alabama, to intervene as defendants in young people’s constitutional climate change case against the United States and other federal defendants. The states sought to intervene in 2021 to oppose the plaintiffs’ motion for leave to amend their complaint after the Ninth Circuit ruled that they did not have standing. The court granted the states leave to refile their motions to intervene after the court rules on the pending motion to amend. On the same day, the court granted New York and five other states’ motion for leave to file a brief as amici curiae to “correct” the proposed state intervenors’ “erroneous assertions” about collusion between plaintiffs and federal defendants in other cases and the proposed intervenors’ “incomplete picture” of the impacts on states of federal action to address climate change. The court also granted Natural Resources Defense Council’s motion for leave to file an amicus brief opposing the states’ motion to intervene. Juliana v. United States, No. 6:15-cv-01517 (D. Or. Mar. 14, 2023)
Federal Court Allowed Endangered Species Act Claims Seeking 12-Month Findings for 192 Species to Proceed
In a lawsuit brought by Center for Biological Diversity asserting that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act by failing to make listing determinations or critical habitat designations, including for climate change-threatened species, the federal district court for the District of Columbia granted in part and denied in part the defendants’ motion for partial dismissal. The court dismissed claims related to six species either because the claims were moot due to the FWS taking final action, because listing petitions had been withdrawn, or because the plaintiff did not comply with the Endangered Species Act’s notice requirements. The court rejected the argument that claims asserting a failure to make 12-month findings for 192 species were time-barred. Center for Biological Diversity v. Haaland, No. 1:20-cv-00573 (D.D.C. Mar. 8, 2023)
South Carolina Federal Court Allowed Clean Water Act Citizen Suit Claims to Challenge Development on Wetlands
The federal district court for the District of South Carolina ruled that environmental groups could assert claims against both the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act’s citizen suit provision to challenge a permit to fill wetlands for a mixed-use development. The plaintiffs’ arguments under the Clean Water Act included that the permit allowed for significant degradation of wetlands that would make residents more vulnerable to flooding and that unnecessary placement of development in locations vulnerable to future sea level rise, flooding, and storm surge would have significant adverse economic effects. The plaintiffs also asserted NEPA and Endangered Species Act claims, which were not the subject of this motion. South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers, No. 2:22-cv-02727 (D.S.C. Mar. 7, 2023)
Appeals Regarding Preliminary Injunction of Pennsylvania RGGI Regulations Dismissed as Moot Due to Petitioners’ Failure to Submit $100 Million Bond; Injunction in Separate Case Remained in Effect
The Pennsylvania Supreme Court dismissed appeals of a preliminary injunction blocking Pennsylvania’s implementation of Regional Greenhouse Gas Initiative (RGGI) regulations. The court ruled that the appeals were moot because the parties who obtained the preliminary injunction failed to submit the $100 million bond. The order imposing the bond was affirmed as a result of the Supreme Court being equally divided. In a concurring statement, Justice Donohue, joined by Justice Doughtery, wrote that “failure to file the bond rendered the preliminary injunction a legal nullity and inoperative,” and that the mootness finding should have been extended to the appeal of the amount of the bond. Justice Wecht wrote a concurring statement in support of the per curiam affirmance of the bond order. Justice Mundy, joined by Justice Brobson, wrote a concurring and dissenting statement expressing the view that “if the bond amount was in error and thus void ab inito, the failure to post it could not have validly impinged upon … enforcement” of the preliminary injunction and the Supreme Court should “either remand for imposition of a nominal bond or permit oral argument on the issue.” An injunction barring implementation of the RGGI regulations remained in place in a separate case. Bowfin KeyCon Holdings, LLC v. Pennsylvania Department of Environmental Protection, Nos. 80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022 (Pa. Mar. 24, 2023)
California Appellate Court Rejected Challenge to Greenhouse Gas Mitigation Measure for Ballpark Project in Oakland
The California Court of Appeal affirmed a trial court’s rulings on California Environmental Quality Act (CEQA) claims challenging the City of Oakland’s review of a proposed project that included a new 35,000-seat ballpark for the City’s Major League Baseball team. The court rejected a contention that the environmental impact report (EIR) improperly deferred mitigation of the project’s greenhouse gas emissions. The court noted that a state law required Oakland to incorporate emission reduction measures in the project and prohibited the project from causing “any net additional emissions of greenhouse gases.” The appellate court found that the single mitigation measure adopted in the EIR—a prohibition on any construction-related permit for the project unless the project sponsor developed a plan to reduce or offset emissions so that resulting emissions were below the “no net additional” threshold—satisfied CEQA guidelines requirements. In particular, the court found that the City committed to the mitigation, adopted a specific performance standard to be achieved, and identified potential actions to feasibly achieve the performance standard. East Oakland Stadium Alliance v. City of Oakland, No. A166221 (Cal. Ct. App. Mar. 30, 2023)
Michigan Court Upheld Approval of Early Retirement of Coal-Fired Plant
The Michigan Court of Appeals affirmed the Michigan Public Service Commission’s (MPSC’s) approval of a settlement agreement for a utility’s integrated resource plan that required retirement of a coal-fired electricity-generating facility in 2025 rather than the originally planned retirement date of 2039. The court found that a joint owner of the facility failed to show by clear and convincing evidence that the approval was unlawful or unreasonable. The court rejected the owner’s argument that the MPSC “improperly prioritized reducing carbon emissions over reasonable timing to ensure reliable energy.” The court noted that the statutory scheme “envisions balancing various criteria” but that “no particular such balance must itself necessarily constitute the one best approach for satisfying” statutory requirements. The court was not persuaded by arguments that an administrative law judge’s initial disapproval of the early retirement plan should be dispositive, that the plan was based on insufficient modeling, or that MPSC staff changed its position arbitrarily. Wolverine Power Supply Cooperative, Inc. v. Michigan Public Service Commission (In re Application of Consumers Energy for Approval of an Integrated Resource Plan), No. 362294 (Mich. Ct. App. Mar. 23, 2023)
Oregon Court Rejected Arguments Regarding Future Climate Change Impacts in Decision Upholding Authorization for Municipal Water Diversions
The Oregon Court of Appeals rejected a challenge to the Oregon Water Resources Department’s order allowing extensions of time for three municipal parties to perfect water rights for diversion of water from the Clackamas River. One issue raised on appeal was whether the Department lacked substantial evidence for its deletion of an administrative law judge’s (ALJ’s) recommendation that, due to uncertainty regarding future effects of climate change, summer months include a “curtailment provision” to ensure sufficient flow for fish persistence. The court found that the ALJ’s recommendation was “merely a suggestion based on future uncertainty” and that substantial evidence in the record supported the Department’s findings that lower flows and higher temperatures due to climate change would have little effect on listed fish species. The court also rejected the petitioner’s more general argument that the assumptions on which the Department’s fish-persistence determination was based did not account for usage changes due to climate change. The court described the petitioner’s assertions as “merely speculative statements about possible future conditions.” WaterWatch of Oregon, Inc. v. Water Resources Department, Nos. A169652, A169651, A169650 (Or. Ct. App. Mar. 1, 2023)
Hawai‘i Trial Court Allowed Youth Plaintiffs to Proceed with Claims that Hawai‘i Fossil Fuel-Based Transportation System Violated Constitutional Rights
A Hawai‘i Circuit Court denied a motion to dismiss youth plaintiffs’ lawsuit asserting that the establishment, operation, and maintenance of Hawai‘i’s fossil fuel-based transportation system violates the Hawai‘i Constitution’s public trust doctrine and right to a clean and healthful environment. The lawsuit was brought against the Hawai‘i Department of Transportation, its director, the governor and the State of Hawai‘i. The court did not determine whether “the climate” is a public trust resource, finding that it was sufficient that the plaintiffs argued that “deteriorating climate impacts our natural resources.” The court further found that the defendants had an obligation to “take steps to maintain their assets to keep them from falling into disrepair” and rejected any argument that because greenhouse gas emissions are “too big a problem,” the State did not have a “trust obligation to reasonably monitor and maintain our natural resources by reducing our [greenhouse gas ] emissions and establishing and planning alternatives to a fossil-fuel heavy transportation system.” The court also rejected a contention that statutes limited the public trust doctrine, requiring dismissal of the claim. Regarding the claim asserting a breach of the Hawai‘i Constitution’s right to a clean and healthful environment, the court concluded that Hawai‘i laws addressing greenhouse gas emissions reductions, reducing fossil fuels in transportation, and promoting alternative fuels and energy efficiency were laws relating to environmental quality (and therefore were relevant to defining the constitutional right). The court further concluded the laws required “timely planning and action, not meaningless or purely aspirational goals” and that the youth plaintiffs’ complaint was “replete with additional allegations that Defendants’ actions do not comply with the Legislature’s statutory directives.” In addition, the court found that the plaintiffs alleged harms that “are current, ongoing, and getting worse.” The court noted that the Hawai‘i Supreme Court had highlighted the harms of lack of action on greenhouse gases and fossil fuels in its March 2023 opinion regarding the constitutional duty to ensure a life-sustaining climate system. The court also rejected arguments that the youth plaintiffs lacked standing and that their claims raised a political question. Regarding standing, the court noted that the federal court “injury-in-fact” test did not apply and found that the plaintiffs’ allegations “that they stand to inherit a world with severe climate change and the resulting damage to our natural resources” established “concrete” interests. The court also found that the declaratory judgment sought by the plaintiffs “will help resolve the parties’ different views of what the legislature and Constitution require.” The court found that the defendants’ invocation of the political question doctrine was premature and that the issue likely would not arise “until a specific motion for injunctive relief is filed.” Navahine F. v. Hawai‘i Department of Transportation, No. 1CCV-22-0000631 (Haw. Cir. Ct. Apr. 6, 2023)
Oregon Court Denied Preliminary Injunction in Dispute over Emission Credits Distribution for Fuels from Washington Refinery
An Oregon Circuit Court denied a fuel supplier’s request for a preliminary injunction in a case challenging the Oregon Department of Environmental Quality’s (DEC’s) allocation of emissions credits under the State’s Climate Protection Program. The dispute concerns whether credits associated with fuels from a Washington refinery should be distributed to Shell or to the fuel supplier, to whom Shell sold the refinery in 2021. The Portland Business Journal reported that the court found that it was “rational for DEQ to look at historical data and not peek behind the curtain” and that the fuel supplier would not suffer irreparable harm because it could be made whole by money damages. HF Sinclair Corp. v. Oregon Department of Environmental Quality, No. __ (Or. Cir. Ct. Mar. 23, 2023)
New York Court Said Challenge to Review of Cryptocurrency Company’s Acquisition of Power Plant Was Not Ripe
A New York Supreme Court dismissed as unripe a lawsuit challenging a New York State Public Service Commission (PSC) determination that a cryptocurrency company’s acquisition of ownership interests in a company that owns and operates a natural gas plant in North Tonawanda did not require further review under the Public Service Law. The PSC determined that environmental concerns raised by petitioners—which involved whether the transaction required the PSC to assess compliance with the New York State Climate Leadership and Community Protection Act’s greenhouse gas emissions reduction and environmental justice mandates—were beyond the scope of the PSC’s “limited review.” The New York court found that the petition did not present a ripe controversy because the petitioners had timely applied to the PSC for rehearing pursuant to the Public Service Law and the PSC had not yet ruled on the rehearing petition. The court did not reach alternative grounds for dismissal raised by the parties to the transaction. These parties argued that the petitioners lacked standing and that the case was moot because the transaction had closed in February 2023. Clean Air Coalition of Western New York, Inc. v. New York State Public Service Commission, No. 900457-23 (N.Y. Sup. Ct. Mar. 20, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
Solicitor General Opposed Fossil Fuel Companies’ Petition for Writ of Certiorari on Jurisdiction Issues in Local Government Climate Case
On March 16, 2023, the Solicitor General filed a brief expressing the United States’ view that the Supreme Court should deny fossil fuel companies’ petition for writ of certiorari seeking review of the affirmance of a remand order in a climate change case brought by three local governments in Colorado. The brief argued that the Tenth Circuit Court of Appeals “correctly declined to recharacterize [the local governments’] state-law claims” as arising under federal common law because the Clean Air Act had displaced any relevant federal common law and no exception to the well-pleaded complaint rule applied. The brief asserted that the Grable test for when a state-law claim necessarily raises an actually disputed and substantial federal issue was not satisfied because “no federal issue is ‘embedded’ within respondents’ own articulation of their claims.” The Solicitor General’s brief also argued that “artful pleading” and complete preemption exceptions to the well-pleaded complaint rule did not apply. The brief contended that the Tenth Circuit’s affirmance of the remand order did not conflict with decisions in other courts of appeals, including the Second Circuit’s affirmance of the dismissal of New York City’s state-law claims against fossil fuel companies. Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S. Mar. 16, 2023)
D.C. Circuit Will Hear Oral Arguments on May 8 in Appeal of Remand Order in D.C. Climate Case
The D.C. Circuit Court of Appeals scheduled oral argument regarding fossil fuel companies’ appeal of a remand order in D.C.’s climate change consumer protection case for May 8, 2023 at 9:30 AM. Briefing of the appeal will be completed on April 17, 2023. District of Columbia v. Exxon Mobil Corp., No. 22-7163 (D.C. Cir.)
Hawai‘i Supreme Court to Hear Fossil Fuel Companies’ Appeal of Denial of Motion to Dismiss Honolulu Climate Case
On March 31, 2023, the Hawai‘i Supreme Court granted a request by City & County of Honolulu and the Honolulu Board of Water Supply (Honolulu) that the Supreme Court hear fossil fuel companies’ appeal of a Hawai‘i Circuit Court’s denial of motions to dismiss Honolulu’s claims seeking to hold the companies’ liable for an alleged “multi-decadal campaign of deception and disinformation that succeeded in delaying the transition to a lower carbon economy that … could have avoided the worst” of climate change-related effects. Honolulu argued that transfer of the appeal from the intermediate appellate court was mandatory because the appeal presented one or more questions “of imperative or fundamental public importance.” In particular, Honolulu argued that the appeal “implicates the authority of political subdivisions to seek remedies for injuries to their residents’ constitutionally guaranteed interests in the State’s natural resources caused by corporate misconduct.” Honolulu characterized the appeal as presenting questions of “first impression” and “novel legal questions[s]” about both personal jurisdiction and the application of Hawai‘i tort law. City & County of Honolulu v. Sunoco LP, No. SCAP-22-0000429 (Haw. Mar. 3, 2023)
Environmental Groups Challenged Project to Expand Natural Gas Pipeline System for Shipments to New Jersey, Pennsylvania, and Maryland
Environmental organizations filed petitions for review in the D.C. Circuit Court of Appeals challenging Federal Energy Regulatory Commission (FERC) authorizations for the Regional Energy Access Expansion project, a natural gas infrastructure project that involves modernization of existing compression facilities and construction of new facilities to provide an additional 829,400 dekatherms per day of “firm transportation service” for shippers from northeastern Pennsylvania to delivery points in New Jersey, Pennsylvania, and Maryland. On March 21, 2023, one group of petitioners filed an emergency motion to halt construction activities, including tree-felling. The petitioners argued that they were likely to succeed on the merits of their claim that FERC unlawfully approved project, including because FERC did not consider evidence that that there was no need for the project, and that FERC failed to adequately balance the project’s adverse impacts and public benefits. They argued that environmental harms, including impacts on climate change, would cause irreparable injury; that a stay would not significantly harm the applicant or other parties; and that there was “fundamental public interest” in granting a stay, including because the project would increase upstream gas production and contribute to adverse climate impacts. New Jersey Conservation Foundation v. Federal Energy Regulatory Commission, No. (D.C. Cir., filed Mar. 13, 2023); New Jersey Conservation Foundation v. Federal Energy Regulatory Commission, No. 23-1074 (D.C. Cir., filed Mar. 20, 2023); Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, No. 23-1077 (D.C. Cir., filed Mar. 20, 2023)
Environmental Groups Asked D.C. Circuit to Order Response to Petition Seeking Rules for “Public Interest” Determination for LNG Exports
Five environmental organizations filed a petition for writ of mandamus in the D.C. Circuit Court of Appeals seeking to compel the U.S. Department of Energy (DOE) to respond to a 2013 petition in which the organizations requested that the agency issue rules regarding how it will decide whether exports of liquefied natural gas (LNG) are “consistent with the public interest” pursuant to the Natural Gas Act. The petitioners argued that in the absence of guidelines or regulations regarding the “public interest” determination, DOE had “repeatedly issued ad-hoc and inadequate ‘public interest’ analyses that have failed to meaningfully consider highly pertinent factors like the environmental impacts of the actual export terminals themselves, the climate change-related impacts associated with the extraction, refinement, transportation, and ultimate combustion of the gas being exported, and the effect of increased gas exports on the price of domestic gas for low-income ratepayers.” The environmental organizations further argued that the nearly 10-year delay in responding to their petition was “patently unreasonable.” The petition stated that DOE’s “authorization of LNG exports without meaningful ‘public interest’ review not only harms [already overburdened] communities, but it also threatens to undermine the country’s ability to adequately respond to the climate crisis.” In re Sierra Club, No. 23-01065 (D.C. Cir., filed Mar. 13, 2023)
Lawsuit Sought to Compel Critical Habitat Designation for Threatened Coral Species
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Columbia claiming that the National Marine Fisheries Service (NMFS) violated the Endangered Species Act by failing to designate critical habitat for 12 Florida, Caribbean, and Indo/Pacific coral species that have been listed as threatened. The complaint alleged that the corals face both the “existential threats of climate change and ocean acidification” and also localized threats. The complaint asserted that best available science demonstrates that these threats will continue “without immediate action … and will likely cause a precipitous decline” in the corals. Center for Biological Diversity asked the court to order NMFS to designate critical habitat for 12 listed coral species “by a reasonable date certain.” Center for Biological Diversity v. Raimondo, No. 1:23-cv-00809 (D.D.C., filed Mar. 27, 2023)
Lawsuit Alleging Federal Inducement of Social Media Censorship Included Allegations on Climate Change
Robert F. Kennedy, Jr., a nonprofit organization he founded, and a Louisiana resident filed a class action lawsuit in the federal district court for the Western District of Louisiana against President Biden and other federal defendants asserting that since early 2020 the federal government had violated the First Amendment by inducing social-media companies
to censor others’ protected speech. Defendants included Gina McCarthy, in her official capacity as White House National Climate Advisor. The complaint alleged that McCarthy “publicly demanded that social-media platforms engage in censorship and suppression of speech that contradicts federal officials’ preferred narratives on climate change” at an event in June 2022. The plaintiffs sought declaratory relief and a nationwide injunction. Kennedy v. Biden, No. 3:23-cv-00381 (W.D. La., filed Mar. 24, 2023)
Lawsuit in Illinois Federal Court Challenged Dredged Material Disposal Facility on Lake Michigan
Two groups representing southeast Chicago communities filed a lawsuit in the federal district court for the Northern District of Illinois challenging U.S. Army Corps of Engineers approval of the Calumet Harbor Dredged Material Disposal Facility (DMDF), which would enable continued disposal of dredged materials from the Chicago Area Waterway System atop the existing 45-acree Confined Disposal Facility (CDF). The plaintiffs alleged that the CDF is located on submerged Lake Michigan lakebed, which the State of Illinois holds in public trust. The complaint alleged that the Corps had used the CDF for disposal of dredged material for almost 40 years, despite a statutory requirement that it be converted into a public park after no more than 10 years of use as a disposal facility. The plaintiffs assert that approval of the Calumet Harbor DMDF violated NEPA, the Clean Water Act, and statutory requirements for establishing dredged material disposal facilities, as well as the Illinois Public Act and the Illinois public trust doctrine. The NEPA claims involve allegations that the Corps assumed “no additional cost resulting from higher water levels and more intensive storms driven by climate change and other factors along the Lake Michigan lakeshore” and that the EIS “did not fully and fairly evaluate and take the required hard look at the impacts of climate change” with regard to the project. Alliance of the Southeast v. U.S. Army Corps of Engineers, No. 1:23-cv-01524 (N.D. Ill., filed Mar. 13, 2023)
Lawsuit in Arizona Federal Court Sought Fish and Wildlife Service Decisions on Climate Change-Threatened Species
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Arizona to compel the U.S. Fish and Wildlife Service to make decisions under the Endangered Species Act regarding listing or critical habitat designation for 13 species of plants and animals, including species threatened by climate change: the round hickorynut (a mussel threatened by increasing stream temperatures and climate change-induced storm events); the Barrens topminnow (a fish found in streams in middle Tennessee that has experienced habitat loss due to climate change); the Suwannee alligator snapping turtle; the least chub; and the tui chub. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:23-cv-00113 (D. Ariz., filed Mar. 7, 2023)
Environmental Groups Challenged NEPA Review for “Massive” Gulf of Mexico Oil and Gas Lease Sale
Six environmental groups filed a lawsuit in federal court in the District of Columbia asserting that federal defendants violated NEPA and the Administrative Procedure Act when they decided to hold a Gulf of Mexico oil and gas lease sale that offers more than 73 million acres of public waters for leasing, which the plaintiffs alleged would be one of the largest offshore lease sales in U.S. history. The complaint alleged that the final supplemental EIS prepared by the Bureau of Ocean Energy Management (BOEM) failed to take a hard look at the lease sale’s impacts. With respect to climate change, the plaintiffs contended that BOEM relied on “problematic modeling and assumptions to conclude that this massive lease sale will result in only ‘slightly higher domestic emissions’ than not leasing at all, and further failed to consider the impacts of such fossil fuel development on climate goals and commitments,” including the lease sale’s impact on the remaining global carbon budget (“the amount of carbon dioxide equivalent that can be emitted without exceeding the Paris Agreement limit of 1.5℃ of warming above pre-industrial levels”). The plaintiffs also alleged that BOEM failed to consider climate impacts such as sea level rise, flooding, and increased storms on Gulf of Mexico communities and cumulative climate impacts of other Gulf oil and gas leasing and reasonably foreseeable oil and gas infrastructure projects. On March 22, 2023, Chevron U.S.A. Inc moved for leave to intervene. Chevron noted that the Inflation Reduction Act stated that that the lease sale should be conducted “not later than March 31, 2023” and argued that this case “directly implicates” Chevron’s interests because it had “already expended substantial costs and efforts to prepare to participate” in the lease sale in reliance on it taking place. On March 29, BOEM announced that it had held the lease sale. Healthy Gulf v. Haaland, No. 1:23-cv-00604 (D.D.C., filed Mar. 6, 2023)
Utah Supreme Court Will Hear Youth Plaintiffs’ Appeal of Dismissal of Climate Case Against State Defendants
On March 10, 2023, the Utah Supreme Court granted youth plaintiffs’ request that it retain their appeal of a trial court decision dismissing their climate change case asserting violations by State of Utah defendants of their substantive due process rights. The appeal therefore will be heard by the Supreme Court rather than an intermediate appellate court. In their January letter requesting that the Supreme Court retain the appeal, the plaintiffs stated that the issues presented on appeal included: (1) Is deciding the constitutionality of statutes governing fossil fuel development a nonjusticiable political question?; (2) Can there be no possible set of facts under which fossil fuel policies can conceivably infringe the rights to life, liberty, and property under Utah’s due process clause?; and (3) Can a declaration of the unconstitutionality of a statute, without further relief, provide meaningful redress? The plaintiffs asserted that the Supreme Court should retain the appeal because the case involved important constitutional questions of first impression. The plaintiffs also contended that the case afforded the Supreme Court an opportunity to resolve confusion about the standard for whether a case presents a nonjusticiable political question. Natalie R. v. State, No. 20230022-SC (Utah Mar. 10, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
UN General Assembly Adopted Resolution Requesting ICJ Advisory Opinion on the Obligations of States with Respect to Climate Change
On March 29, 2023, the 77th session of the United Nations General Assembly (UNGA) adopted the resolution A/77/L.58, requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States with respect to climate change. The resolution was adopted by consensus. This initiative was largely led by the Government of Vanuatu, which worked with other countries to prepare a draft resolution through internal negotiations and several rounds of informal consultations with the wider UN membership.
The request for an advisory opinion acknowledges that “climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it.” The UNGA resolution also takes note of the scientific consensus expressed, inter alia, in the reports of the Intergovernmental Panel on Climate Change. In particular, the UNGA underscores that anthropogenic emissions of greenhouse gases are “the dominant cause of the global warming observed since the mid-20th century” and that human-induced climate change “has caused widespread adverse impacts and related losses and damages to nature and people.”
In this context, the UNGA recalls the importance of the United Nations Framework Convention on Climate Change and the Paris Agreement “as expressions of the determination to address decisively the threat posed by climate change.” The resolution also underscores the importance of implementing these treaties, particularly in light of the significant gap between States’ current nationally determined contributions and the emission reductions required to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C, as well as the gap between current levels of adaptation and the levels needed to respond to the adverse effects of climate change.
Therefore, in accordance with Article 96 of the Charter of the United Nations, the UNGA requests the ICJ to render an advisory opinion on the following questions:
“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,
(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
The UN Secretariat will communicate the resolution to the ICJ in the following weeks. Request for an advisory opinion on the obligations of States with respect to climate change (International Court of Justice)
DECISIONS AND SETTLEMENTS
Nepal Supreme Court Finds that Excavation of Stone, Gravel, and Sand Would Be Tantamount to “Ecocide” and Against the Norm of Environmental Justice and Intergenerational Equity
Pursuant to Article 119 of the Constitution, the Minister for Finance of the Government of Nepal shall lay before the joint sitting of both Houses of the Federal Parliament an annual estimate setting out, inter alia, an estimate of national revenue and the money required to meet the charges on the Federal Consolidated Fund. Following the coronavirus pandemic and the subsequent lockdown, however, Budget Draft for the fiscal year 2021/22 was passed through an Ordinance. The petitioners in this case argued that adoption of the national budget through Ordinance was largely unconstitutional and took contention with point no. 199 of the Draft, which held that stone, gravel, and sand was to be exported to reduce the country’s trade deficit following an Environmental Impact Assessment (EIA) report.
The petitioners claimed that excavation of stone, gravel, and sand would reduce the fertile plains of the Terai and Madhesh to barren land. The major geomorphic process in Churia coupled with weak geology, heavy rainfall, and tropical weathering also means that the region already experiences rapid fluvial erosion. Consequently, if excavation were to go ahead, entire villages would face increased vulnerability to floods, and agricultural practices indigenous to the Terai region would be lost. The petitioners argued, therefore, that allowing excavation along the Chure Range would be a flagrant violation of Article 30 of the Constitution, which stipulates that every citizen has the right to a clean and healthy environment. The petitioners specifically made their claim based on Chure’s increased vulnerability to climate change.
The Constitutional Bench of the Supreme Court sided with the petitioners and held that excavation of stone, gravel, and sand would be tantamount to “ecocide” and against the norm of environmental justice and intergenerational equity. The Court iterates that environmental complexity is increasing in Nepal due to climate change and urges the government to be mindful towards the life of and within the Chure and not view it solely through an economic lens. The Court also acknowledged that although the State exercises permanent sovereignty over natural resources as a constituent right of self-determination, precedent set by the Court prompts that the precautionary principle be applied. The Court also referenced that as party to several international environmental treaties, the State has a positive obligation to preserve wetlands, protect biodiversity, and curb the illegal trade of endangered species. It also referenced the UN Human Rights Council resolution 48/13 acknowledging the right to a healthy environment as a fundamental human right. In keeping with this, an interim order from the Court stopped the draft budget from going through, and the Court also halted the planned excavation of the Chure Range with an order of certiorari. Shailendra Prasad Ambedkar v. Office of Prime Minister et al (Nepal, Constitutional Bench of the Supreme Court)
UK Court Rejected Appeal in Case Challenging Government Financing of Natural Gas Project in Mozambique
In September 2020, Friends of the Earth England Wales and Northern Ireland brought a legal challenge against UK Export Finance’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 tons of LNG per year for 32 years. This will result in total combustion emissions of 4.3 billion tons of CO2e: more than the total annual emissions for all 27 countries within the EU. In March 2022, the High Court issued a judgment with a split two-judge court, and the claim proceeded to the Court of Appeal.
In January 2023, the Court of Appeal gave judgment, unanimously dismissing Friends of the Earth’s appeal. The court held that (1) the government was only required to adopt a “tenable” view of what the Paris Agreement meant, not a correct view, as Friends of the Earth had argued (relying on the Vienna Convention); (2) the government had adopted a tenable view; and (3) it was not irrational to make the decision to fund such a project without quantifying its scope 3 emissions. The court noted that the project would have gone ahead with or without finance from UK Export Finance. Furthermore, the absolute quantification of scope 3 emissions would not have answered the nuanced question of whether the financing was compatible with the UK’s obligations under the Paris Agreement, and the obligations in question were not absolute requirements to restrict the increase in global average temperature and to make finance flows consistent with a low-emissions pathway and climate-resilient development, but rather, these were only some of the purposes of the Paris Agreement. Friends of the Earth have applied for permission to appeal to the UK Supreme Court. Friends of the Earth v. UK Export Finance (Court of Appeal (Civil Division), U.K.)
Supreme Court of Japan Upheld Dismissal of Case Challenging Construction of New Coal-Fired Power Plants
In 2018, 12 residents of the Japanese city of Kobe filed an administrative action against the government seeking more ambitious action on climate change. The plaintiffs asked the Osaka District Court to compel the government to cancel the notice of finalization of an environmental assessment of two new coal-fired units, which the plaintiffs alleged would emit about 7 million tons of carbon dioxide per year. The plaintiffs also sought an order finding that the government has unlawfully failed to establish regulatory standards consistent with the Paris Agreement.
In March 2021, the Osaka District Court rejected the plaintiffs’ request to cancel the notice of finalization issued by the Minister of Economy, Trade and Industry. The plaintiffs filed an appeal, but the district court’s judgment was upheld by the Osaka High Court in April 2022, which agreed with the district court that the plaintiffs lacked standing and that the notice of finalization was legal. The plaintiffs filed a final appeal to the Supreme Court. On March 9, 2023, the Supreme Court rejected the request for a final appeal and the judgment by the Osaka High Court was upheld. The Supreme Court stated that it did not find grounds for a final appeal under Article 312 of the Code of Civil Procedure, but no specific reasons were given. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan (Supreme Court, Japan)
Japanese District Court Dismissed Injunction Request to Stop Construction of New Coal-Fired Power Plants
In 2018, 31 families filed a lawsuit seeking an injunction to prevent the construction and operation of two units at a coal-fired plant in Kobe, Japan. The plaintiffs are represented by the Citizens’ Committee on the Kobe Coal-Fired Power Plant and named Kobe Steel Ltd., Kobelco Power Kobe No. 2 Inc., and Kansai Electric Power Co., Inc. as defendants. According to the plaintiffs, the new units would have a total output of 1,300 megawatts, and emit 0.6% of the nation’s carbon dioxide emissions from energy. They assert that the construction and operation of the new coal-fired units would violate the right to clean air and a healthy and clean environment and right to enjoy a stable climate; conflict with Japan’s 2030 and 2050 climate targets; and pollute in residential areas where air quality standards are already being violated.
On March 20, 2023, the Kobe District Court delivered a judgment dismissing the request for an injunction blocking construction and operation of the coal-fired power plants. First, the Kobe District Court discussed if air pollution caused by the coal-fired power plants would violate personal rights of the citizens. As for those plaintiffs who live far from Kobe city, the Court said that there was no threat of a violation of personal rights to life, bodily integrity, and health by the emission of air pollutants from the power plants in question. As for the other plaintiffs, the Court examined if there was a “concrete danger” to determine a violation of personal rights. To determine this, the Court considered the notice of finalization that affirmed the assessment of SO2, NO2, suspended particulate matter, and mercury and concluded that those substances would not create a concrete danger to the citizens. Further, regarding PM2.5, which was not included in the assessment, the Court considered the outcome of the simulation but did not recognize the existence of a concrete danger either. Consequently, the Court did not find a violation of personal rights to life, bodily integrity, and health.
Second, the Kobe District Court considered whether air pollution caused by the coal-fired power plants would violate the right to a peaceful life. The Court repeated that there was no concrete danger to life or health and stated that granting an injunction based on non-serious anxiety about a healthy life could not limit socioeconomic activities. Hence, the Court concluded that there was no violation of the right to a peaceful life. Third, the Court discussed if climate change aggravated by the use of the coal-fired power plants would violate personal rights. On this point, the Court stated that climate change is likely to occur in Hyogo as the progression of global warming would affect the entire Earth and the plaintiffs may suffer damage. However, the Court noted that there are many uncertain factors, including the level of damage by disasters and the place where a disaster might actually happen. Moreover, the plaintiffs argued that the existence of a concrete danger should be judged by the level of risk of climate change by considering the carbon emission reduction targets by the international community. The Court stated that the concrete danger could not be equated with the danger of global warming as a whole since the concrete danger of damage to the plaintiffs needed to be determined on the basis of damage that global warming would cause to each individual whereas the reduction targets aimed at preventing global warming for the whole earth.
Further, the Court stated that the operation of the coal-fired power plants would not immediately render the achievement of the reduction targets impossible. Thus, the Court did not recognize the existence of a concrete danger to the plaintiffs’ life, bodily integrity, and health while it stated that there could be an abstract danger by the emission of CO2 that could aggravate global warming. Lastly, the Court discussed if climate change would violate the right to a peaceful life, or the right to a stable climate which the plaintiffs’ claimed as being included in the right to a peaceful life. The Court stated that the plaintiffs’ anxiety about climate change was not serious as it was about the uncertain danger in the future. The Court further noted that the plaintiffs’ claim was considered as a request to protect the environment in the absence of a concrete danger and that the right to a stable climate was not legally protected. Finally, the Court stated that even if climate change would violate the right to a peaceful life, the responsibility could not be unilaterally attributed to the new coal-fired power plants in question. The Kobe District Court did not find a ground for an injunction. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al. (Kobe District Court, Japan)
EU Court Held That Permit Allowing Power Plant to Exceed Set Emissions Limits Is Impermissible if It Would Cause Significant Pollution
This case first began in 2019 after the thermal power plant (TPP) Maritsa-Iztok 2 in Bulgaria got its integrated permit for operation renewed indefinitely, allowing the plant to release mercury and sulphur oxides above set emissions limits. The Court of First Instance (Administrative Court Stara Zagora) dismissed the case, stating that there is no violation of the Aarhus Convention, even though the operations of the TPP in question have a transboundary effect. The Court also did not find any violations of the national Code of Administrative Procedure or the European Directives on ambient air quality and industrial emissions. The Applicants appealed the judgment before the Administrative Court of Cassation (ACC), which then requested a preliminary ruling from the Court of Justice of the European Union (CJEU).
On March 9, 2023, the CJEU gave its judgment on the preliminary ruling. The CJEU found that a derogation from the set emission limit values may be granted only if less strict emission limit values do not cause “significant pollution” and, in spite of that derogation, a “high level of protection of the environment as a whole” could be achieved. Moreover, the pollution in excess of the air quality limit values for SO2 in the area of the TPP in question cannot be regarded as insignificant pollution, but could objectively be described as “significant pollution.” Thus, a derogation from the set emission limit values could not be granted, if it is such as to contribute to exceeding air quality limit values set by Directive 2008/50 for SO2. Additionally, the competent authority empowered to grant such a derogation must also refrain from setting less strict emission limit values for pollutants originating from an installation where such a derogation would be contrary to the measures established in the air quality plan adopted in the zone concerned.
This judgment comes in a moment when there is talk in Bulgaria of renegotiating the Recovery Plan, which originally envisioned a 40% reduction in thermal power plant emissions and the introduction of more energy from renewable sources. Even though the judgment considers sulfur emissions, its principles could be very well be applied to other pollutants that originate from thermal power plants like Maritsa-Iztok 2.
After the CJEU judgment on the preliminary ruling, the case returned to the Bulgarian ACC, which must decide the case on its merits. Association “Za Zemiata (For the Earth) – Access to Justice” and “The Green Tank”, Hellenic Republic v. Executive Director of the Environment Executive Agency, TPP “Maritsa-Iztok 2” EAD (Bulgaria, Administrative Court of Cassation; Court of Justice of the European Union)
NEW CASES, MOTIONS, AND OTHER FILINGS
Brazilian Political Party Challenged Constitutionality of Energy Transition Policy That Subsidizes Coal
On December 29, 2022, the political party Rede Sustentabilidade (Rede) filed a Direct Action of Unconstitutionality (ADI), with a request for injunctive relief, against the State Law 18,330/2022, which institutes the Policy for Just Energy Transition of the State of Santa Catarina. The case is supported by Instituto Internacional Arayara de Educação e Cultura (Instituto Internacional Arayara) as amicus curiae. Rede’s action questions the constitutionality of State Law 18,330/2022, which refers to electricity generation and the need for a just energy transition in the state of Santa Catarina. However, the State Law allows the use of non-renewable sources through coal-fired thermoelectric plants, arguing that these are fundamental for maintaining energy security. The plaintiff argues that, in reality, the law is nothing more than a “legislative façade” to perpetuate the role of coal in the state’s energy system. The law does not present guidelines for the reduction of greenhouse gases (GHGs) or even the abatement of carbon dioxide (CO2) emissions from activities related to the coal production chain. There is also no deadline for abandoning the use of coal; on the contrary, the law foresees the installation of new industrial complexes that will use this fossil fuel. Finally, the law establishes tax and credit incentives for the coal production chain, also without any time limit. The plaintiff argues that these incentives make it possible to indirectly fund the purchase of electricity derived from the burning of coal and fossil fuels. Considering that the State Policy for Just Energy Transition, in fact, serves to foster the use of coal and, consequently, an increase in GHG emissions, the plaintiff claims it violates the Federal Constitution and the Paris Agreement, as well as the National Policy on Climate Change - PNMC (Federal Law 12,187/2009). The petition mentions several international organizations and their agendas which plan to eliminate the use of fossil fuels—especially coal—to show that the policy is a setback compared to the rest of the world and contradictory to the concept of a just transition. The plaintiff points out that the use of coal for energy generation is responsible for socio-environmental disasters in the region, the worsening of climate change, and damage to the public health, especially for populations already suffering from socioeconomic disadvantages. It also challenges the provision in article 42 of the law that excludes liability for environmental damage in the case of use of resources from duly licensed activities. Finally, it argues that the membership of the Council responsible for implementing the policy violates the principles of participatory democracy and equality, as there is an unequal number of seats allocated to government and civil society organizations and its composition does not reflect the participation of actors involved in environmental and labor causes and the sustainable closure of mines.
The plaintiff alleges several formal defects in the legislative process and material violations of numerous provisions of the Federal Constitution, including (i) article 1, which provides for participatory democracy; (ii) article 5, clause 1, providing for the principle of equality; (iii) article 6, establishing social rights; (iv) article 170, clauses 5 and 6, establishing the principles of consumer protection and sustainable development in the economic order; (v) article 196, which provides for the fundamental right to health; and (vi) article 225, which provides for the fundamental right to an ecologically balanced environment. Thus, the plaintiff calls for, as a precautionary measure, the suspension of the effects of several articles of State Law 18,330/2022, considered unconstitutional, as well as, by extension, all of its provisions. As a final measure, the plaintiff requests the confirmation of the injunction, with the granting of the action, for the declaration of unconstitutionality of several articles of the law and, consequently, all of its provisions. ADI 7332 (Policy for “just energy transition” of the State of Santa Catarina) (Federal Supreme Court, Brazil)
Austrian Children Filed Complaint Alleging Federal Climate Protection Act Violates Rights of Children and Right to Equality
On 21 February 2023, a group of Austrian children filed a complaint with the Austrian Constitutional Court. The applicants alleged that the Federal Climate Protection Act (Klimaschutzgesetz 2011) was, in part, unconstitutional for violating the constitutionally guaranteed rights of children and the fundamental right to equality before the law.
The Federal Climate Protection Act was adopted in 2011 to implement emission reduction obligations under European law. The Annexes to the Act set out the maximum levels of greenhouse gas emissions by sector for 2008-2012 and 2013-2020. However, the Act does not stipulate any emissions reduction targets after 2020. The lack of binding greenhouse gas emission reduction targets leads to persistently high emission levels on Austrian territory. In light of this, the applicants alleged the unconstitutionality of Art 3 para 2 of the Federal Climate Protection Act for (a) establishing commitment periods that only extend to 2020, (b) stipulating a pure negotiation obligation regarding the development of effective GHG reduction targets (instead of a mandate to take action), and (c) providing retrospective (instead of preventive) emergency measures in case of an exceedance of GHG ceilings established under international or EU law. In concrete terms, the applicants brought forward that Art 3 para 2 of the Federal Climate Protection Act violated children’s rights and their right to equality before the law. In eventu, the applicants further demanded the repeal of parts of Art 3 para 1 of the Federal Climate Protection Act.
The Federal Constitutional Act on the Rights of Children implements the UN Convention on the Rights of the Child on the national level; it grants subjective rights (“constitutionally guaranteed rights”) to children, i.e., persons under the age of 18 years. Under Art 1, every child has the right to have his or her best interests protected. This includes protection and care, the best possible development, and the safeguarding of the child’s interests; in addition, Art 1 requires consideration of intergenerational equity. This commitment to intergenerational equity can also be found in the Federal Constitutional Act on Sustainability, Animal Protection, Comprehensive Environmental Protection, Water and Food Security as well as Research. This state objective does not grant subjective rights but shall guide the interpretation of other legal sources.
The applicants alleged that climate change triggers positive obligations under Art 1 of the Federal Constitutional Act on the Rights of Children as it poses an imminent danger to the well-being of present and future generations. Thus, Austria is obligated to take adequate measures to protect child well-being against the disastrous impacts of climate change and restrictions of freedom related to drastic emission reduction measures needed in the future. Such need for drastic emission reduction is evident as—according to the applicants—the scope of state obligations under Art 1 of the Federal Constitutional Act on the Rights of Children is to be interpreted through the latest scientific findings as well as EU and international legal requirements. These sources allow calculating of a national CO2 budget based on the internationally agreed 1.5°C target. Said CO2 budget, in turn, constitutes a “finite resource” in the sense of the Federal Constitutional Act on Sustainability. Thus, it is to be managed sustainably, and its consumption should respect the interests of future generations.
In a nutshell, the applicants argued that constitutional law requires (a) the non-exceedance of the national CO2 budget and (b) equitable distribution of the remaining budget between generations in order to prevent a violation of the applicants’ constitutionally guaranteed rights to (child) well-being. The applicants asserted that Art 3 para 2 of the Federal Climate Protection Act does not meet these requirements and therefore violates Art 1 of the Federal Constitutional Act on the Rights of Children, which is to be interpreted in light of the Federal Constitutional Act on Sustainability.
The applicants make a similar assertion based on the Charter of Fundamental Rights of the European Union (CFR). Based on the interpretation of Art 51 CFR, the Charter’s scope, by adopting the Federal Climate Protection Act, constitutes an implementation of GHG reduction targets determined under EU law. Art 24 CFR stipulates that children shall have the right to such protection and care as is necessary for their well-being. Under EU law, children thus have a right to protection of their well-being, similar to the national right. The European rights of the child under Art 24 CFR are to be interpreted in light of Art 37 CFR, which, in turn, refers to the principle of sustainable development. In a manner comparable to the Federal Constitutional Act on Sustainability, Art 37 CFR imposes an obligation to manage resources in an equitable and fundamental rights-respecting manner. This includes Austria’s remaining CO2 budget, which is to be distributed equitably between generations to protect the rights of the child under Art 24 CFR.
The application also relied on the right to equality before the law for asserting the unconstitutionality of Art 3 para 2 of the Federal Climate Protection Act. This fundamental right entails a principle of fair burden sharing; in particular, it prohibits the realization of the welfare of all (or the majority) at the expense of the few. The applicants alleged that Art 3 para 2 of the Federal Climate Protection Act violated the right to equality before the law for two reasons. First, the provision infringes the general principle of objectivity (“allgemeines Sachlichkeitsgebot”) inherent to the right to equality before the law. Second, the provision entails unequal treatment of children compared to adults, which cannot be justified.
The general principle of objectivity requires that legal norms serve the public interest and seek to realize it with appropriate, necessary, and proportionate means. If this is not the case, the legal norm is not objective and thus unconstitutional. According to the applicants, the Federal Climate Protection Act must thus meet two requirements: First, individual norms must be suitable (“appropriate”) to achieve the Act’s general objective, enabling the coordinated implementation of effective climate protection measures and ensuring a rapid reduction of GHG emissions. Second, burdens associated with reducing GHG emissions must be distributed evenly between members of society. The applicants contend that the Federal Climate Protection Act does not meet these requirements: Art 3 para 2 of the Act violates the principle of fair burden sharing as the lack of binding reduction pathways causes a rapid consumption of the remaining CO2 budget, which could be used up entirely already in 2025. Consequently, the GHG reduction burden is transferred to younger generations and not equitably distributed between all members of society. In addition, the applicants noted that it is impossible to achieve the Act’s objective (to comply with international and EU mitigation obligations) without a legally binding GHG reduction pathway. Art 3 of the Federal Climate Protection Act hinders the adoption of a legally binding pathway in providing a pure negotiation obligation paired with references to past commitment periods only. Overall, Art 3 thus undermines the objective of the Federal Climate Protection Act.
The applicants further alleged that Art 3 para 2 of the Federal Climate Protection Act provides for unequal treatment of children compared to adults. This is because the current formulation and design of the Federal Climate Protection Act (especially the lack of legally binding reduction pathways) allow for rapid consumption of the remaining CO2 budget (probably until 2025). Consequently, the burdens associated with emission reduction are largely transferred to the future and, thus, to younger generations. Younger generations are treated unequally compared to older generations as they bear the brunt of restrictions of freedom associated with emission reduction, especially as restrictions of freedom will be more severe the more time passes without action. According to the applicants, such unequal treatment is not justified and thus violates their right to equality before the law. Children of Austria v. Austria (Constitutional Court, Austria)