April 2024 Updates to the Climate Case Charts
Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global 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 #181:
FEATURED CASES
Texas and Kentucky Federal Courts Said Federal Highway Administration Exceeded Its Authority in Regulation Requiring States to Set Declining Carbon Dioxide Emissions Targets for Highway System
The federal district court for the Northern District of Texas agreed with the State of Texas and its Department of Transportation that the Federal Highway Administration (FHWA) lacked statutory authority for its final rule requiring states to establish declining targets for carbon dioxide emissions from on-road mobile sources. FHWA adopted the rule as part of its National Highway Performance Program (NHPP) performance measures. The court concluded that Congress expressly limited permissible NHPP performance measures to measures focused on facilitating travel, commerce, and national defense and not measures focused on the environmental performance of vehicles using highway infrastructure. The court found that statutory context further demonstrated that the “performance” of the highway system did not include greenhouse gas emissions from vehicles using the system. The court concluded that vacatur of the regulation was the proper remedy. Texas v. U.S. Department of Transportation, No. 5:23-cv-00304 (N.D. Tex. Mar. 27, 2024)
The federal district court for the Western District of Kentucky ruled that the FHWA rule exceeded the agency’s statutory authority and was arbitrary and capricious. The court said it did not matter whether the statute authorized the FHWA Administrator’s reading of performance to include environmental performance because there was a “more fundamental problem” regarding whether FHWA could set “performance targets.” The court concluded that the statute gave states the authority to set “performance targets” and did not authorize the FHWA Administrator to “appropriate[e] that target-setting authority by defining performance measure”—which FHWA does have authority to establish—“in a way that dictates the choice of targets given states by Congress.” The court therefore held that FHWA “may not create a performance measure that forces states to set declining targets in CO2 tailpipe emissions on the National Highway System.” The court also found that even assuming FHWA had statutory authority to set environmental performance standards, the regulation was arbitrary and capricious because there was no rational connection between the facts and the two justifications for the regulation (reduction of carbon dioxide emissions and information collection). The court issued only declaratory relief but invited the parties to submit additional briefing on the propriety of injunctive relief, noting that the type of additional relief that might be necessary was unclear, particularly given the Northern District of Texas’s vacatur of the rule. Kentucky v. Federal Highway Administration, No. 5:23-cv-00162 (W.D. Ky. Apr. 1, 2024)
DECISIONS AND SETTLEMENTS
Tenth Circuit Upheld Conclusion that Management Plan for Rio Grande National Forest Did Not Jeopardize Canada Lynx Existence in Contiguous U.S.
The Tenth Circuit Court of Appeals affirmed a district court’s rejection of an environmental group’s challenge to the U.S. Fish and Wildlife Service’s (FWS’s) 2021 Biological Opinion that concluded a revised Land Management Plan for the Rio Grande National Forest in Colorado would not likely jeopardize the Canada lynx’s continued existence in the contiguous United States. The Tenth Circuit held that the FWS did not violate the Endangered Species Act or the Administrative Procedure Act. Among the arguments rejected by the Tenth Circuit were contentions that the FWS did not sufficiently consider the importance of the Colorado subpopulation of the lynx in light of climate change. The Tenth Circuit said these arguments failed to account for an underlying assessment’s recognition of “projected climate-driven losses in habitat quality and quantity” across the lynx’s habitat in the contiguous U.S. Defenders of Wildlife v. U.S. Forest Service, No. 23-1093 (10th Cir. Mar. 11, 2024)
City of Berkeley Agreed to Repeal Ban on Natural Gas Infrastructure in New Buildings
After the City of Berkeley agreed to repeal its ordinance banning natural gas infrastructure in new buildings, the federal district court for the Northern District of California granted a request by the City and California Restaurant Association (CRA) to hold CRA’s lawsuit challenging the ban in abeyance until September 10, 2024 to allow the City time to implement the repeal. The Ninth Circuit held in April 2023 that federal law expressly preempted the ordinance, and the Ninth Circuit denied a petition for rehearing en banc in January 2024. California Restaurant Association v. City of Berkeley, No. 3:19-cv-07668 (N.D. Cal. Mar. 21, 2024)
D.C. District Court Upheld BLM’s Overall Climate Analysis for Western State Oil and Gas Lease Sales but Said More Explanation Was Required for Wyoming Sale
The federal district court for the District of Columbia upheld the U.S. Bureau of Land Management’s (BLM’s) 2022 approval of six oil and gas lease sales for parcels in western states, finding that conservation groups failed to show that BLM violated the National Environmental Policy Act (NEPA) or the Federal Land Policy and Management Act (FLPMA) when it analyzed the lease sales’ potential effects on greenhouse gas emissions and climate change and approved the sales. The court found that “[o]perating at the frontiers of science, BLM reasonably exhausted available tools to analyze the lease sales environmental consequences.”
First, the court found that BLM took a hard look at the lease sales’ cumulative effects by estimating the quantity of greenhouse gas emissions from each individual lease sale; comparing each lease sale’s annual emissions to total annual state and national fossil fuel emissions, state and national emissions from all sectors, and global emissions; comparing life-of-lease emissions to state and national oil and gas emissions; and using the social cost of greenhouse gases to calculate expected environmental harm. BLM’s environmental assessments also incorporated a separate “Specialist Report” that evaluated cumulative emissions from federal fossil fuel authorizations and measured emissions from fossil fuel development on federal lands “against the yardstick of U.S. policy objectives and international agreements” such as the global carbon budget for meeting the Paris Agreement’s target of net-zero emissions by 2050. The court was not persuaded by the conservation groups’ arguments, including assertions that BLM was required to project the impact of emissions on local and global ecosystems or that BLM designed its comparison of the lease sales’ emissions to total federal fossil fuel emissions to make the lease sales’ emissions appear de minimis.
Second, the court found that BLM adequately justified its decision to consider each lease sale separately by explaining that consolidated review was not feasible due to “the fluid and localized nature of the oil and gas lease decision-making process.” The court noted that BLM “did not hide the fact that the lease sales were part of an overall federal program with cumulative environmental impacts,” given its preparation of the Specialist Report and the consideration of cumulative emissions in each environmental assessment. The court noted, however, that “given the potentially catastrophic consequences of the climate crisis and the rapidly developing legal and scientific terrain, it may prove prudent for [BLM] to take the next step by preparing a programmatic [environmental impact statement (EIS)] for the entire federal fossil-fuel program,” as the conservation groups urged.
Third, the court found that BLM did not err by issuing a finding of no significant impact (FONSI) under NEPA instead of preparing an EIS. The court said the D.C. Circuit had previously accepted the rationale given by BLM—that available scientific tools did not permit a determination of whether a particular amount of greenhouse gas emissions would have a significant impact. The court also said it was not clear what purpose would be served by requiring preparation of an EIS in a case where “an agency has exhausted all available tools and finds there is no way to determine significance.”
Fourth, the court found that the record did not support the plaintiffs’ contention that lease sales would cause “unnecessary and undue degradation” under the FLPMA. The court also ruled that the conservation groups did not have to standing to challenge the Oklahoma lease sale because they did not identify any member who used the area in or near the lease parcel in that state. The court rejected a contention that the conservation groups failed to exhaust administrative remedies but indicated that the defendants potentially had a viable argument that the groups “jumped the gun” by filing the lawsuit the day before BLM approved five of the six lease sales. The court declined to “enter this thorny thicket of finality issues” because it had rejected the groups’ claims on the merits. Dakota Resource Council v. U.S. Department of Interior, No. 22-cv-1853 (D.D.C. Mar. 22, 2024)
In a separate case challenging only BLM’s approval of the Wyoming oil and gas lease sale, the court ruled in part for conservation groups that challenged the NEPA review for the sale. The court noted that it had addressed challenges to the climate analysis for all six lease sales in Dakota Resource Council v. U.S. Department of Interior and that this decision addressed the “fuller suite of challenges to BLM’s environmental analysis and its authorization” of the Wyoming lease, which was “the largest by far” of the six sales (122 parcels totaling 119,654 acres). The court found that BLM had erred in its assessments of impacts on groundwater and wildlife and in its explanation of how its analysis of greenhouse gas emissions influenced its leasing decisions. The court rejected a challenge to BLM’s alternatives analysis. With respect to greenhouse gas emissions, the court concluded that BLM “did not adequately explain how it considered the environmental effects of GHG emissions that, in its own telling, carry a hefty price tag in terms of social costs.” Although the court agreed with BLM that NEPA did not require it to perform a full cost-benefit analysis, the court said NEPA regulations counseled that BLM should “assess the merits and demerits of the proposed action in qualitative terms and provide a reasoned explanation for the basis of its decision.” The court was not convinced by conservation groups’ contention that BLM acted arbitrarily and capriciously be failing to square its authorization of the Wyoming lease sale with Biden administration climate policy directives. Wilderness Society v. U.S. Department of Interior, No. 1:22-cv-01871 (D.D.C. Mar. 22, 2024)
Alaska Federal Court Rejected Challenge to Continued Listing of Arctic Ringed Seal as Endangered
The federal district court for the District of Alaska upheld the National Marine Fisheries Service’s (NMFS’s) 2020 decision not to delist the Arctic ringed seal as an endangered species. First, the court rejected the plaintiffs’ contention that because the U.S. Fish and Wildlife Service had determined that conclusions beyond 2060 were based on speculation in the context of its decision not to list the Pacific walrus under the Endangered Species Act, NMFS should not look beyond that date in its “foreseeable future analysis” for the ringed seal. The court found that NMFS “provided a rational connection between the facts it observed” (e.g., the Arctic ring seal’s need for access to snow cover on top of stable ice) and the decision to treat the seal differently from how the U.S. Fish and Wildlife Service treated the Pacific walrus, which exhibited a greater capacity to adapt. Next, the court found that it was reasonable for NMFS not to consider a scenario based on low greenhouse gas emissions in the Intergovernmental Panel on Climate Change’s Fifth Assessment Report. The court said “current trends indicate there will be continued high GHG emissions” and the plaintiffs’ delisting petition did not provide “evidence to support a dramatic, worldwide shift in emissions.” The court also rejected the argument that NMFS improperly disregarded new data indicating that changes in sea ice extent and duration had not detectably reduced ringed seal population size or health. Alaska v. National Marine Fisheries Service, No. 3:22-cv-00249 (D. Alaska Mar. 20, 2024)
Idaho Federal Court Enjoined Wolf Trapping Outside Established Denning Period for Grizzly Bears
The federal district court for the District of Idaho enjoined Idaho from authorizing wolf trapping and snaring in grizzly bear habitat “except during the time period when it is reasonably certain that almost all grizzly bears will be in dens: December 1 to February 28.” The court found that conservation groups met their burden of establishing that Idaho’s recreational trapping laws and rules violated the Endangered Species Act. The court found, however, that although the groups established that future take of grizzly bears in lawfully set wolf traps and snares was reasonably certain, the groups did not identify a remedy tailored to Idaho’s circumstances. The court described the groups’ evidence that effects of climate change were causing grizzly bears to leave their dens sooner or enter them later as “mere generalities” and found that the plaintiffs did not establish the extent to which grizzly bear populations during denning season overlap with locations of permitted wolf trapping. The court therefore tailored the injunction to bar Idaho’s authorization of wolf trapping only outside “established denning periods” for grizzly bears. Center for Biological Diversity v. Little, No. 1:21-cv-00479 (D. Idaho Mar. 19, 2024)
Forest Service Dismissed from Challenge to Transportation Improvements for Route to Utah Ski Resorts
In December 2023, Salt Lake City, Sandy City, and the Metropolitan Water District of Salt Lake and Sandy filed a lawsuit challenging the review and authorization of transportation improvements in Little Cottonwood Canyon. The plaintiffs alleged the improvements would increase overall summer and winter use throughout the canyon, include the Alta and Snowbird ski resorts, and cause an array of impacts. The improvements included a gondola to provide access to the ski resorts, as well as road widening and other physical improvements to a state road and enhanced bus service and tolling. The plaintiffs alleged that federal defendants violated NEPA, the Wilderness Act of 1964, Section 4(f) of the Transportation Act of 1966, and the Administrative Procedure Act. Their NEPA claims included that the defendants failed to adequately evaluate the project’s greenhouse gas emissions or to consider the effects of a changing climate on the need for and operation of the project. On March 18, 2024, the parties stipulated to the dismissal without prejudice of U.S. Forest Service defendants because those defendants had not adopted the final EIS or completed any final agency action related to the project. Salt Lake City Corp. v. Shepherd, No. 2:23-cv-00893 (D. Utah Mar. 18, 2024)
D.C. Federal Court Said Challenge to NEPA Review for Post-Hurricane Aid Should Be Heard by District of Puerto Rico
The federal district court for the District of Columbia granted the Federal Energy Management and other federal defendants’ motion to transfer to the District of Puerto Rico a case alleging that the defendants conducted flawed environmental reviews for post-hurricane disaster aid. The plaintiffs’ allegations included that the defendants failed to consider distributed renewable energy alternatives as alternatives to continued reliance on a centralized fossil fuel power system. The court concluded that transfer was warranted due to local interest in deciding local controversies at home. Comité Dialogo Ambiental v. Federal Emergency Management Agency, No. 1:23-cv-00984 (D.D.C. Mar. 12, 2024)
After Federal Defendants’ Completion of New Analysis, Center for Biological Diversity Voluntarily Dismissed Action Alleging Failure to Consider Pacific Offshore Drilling’s Impacts on Protected Species
Center for Biological Diversity (CBD) and federal defendants filed a joint stipulation for voluntary dismissal of CBD’s claims challenging federal defendants’ 2017 determinations that offshore oil and gas activities on the Pacific Outer Continental Shelf off California were not likely to adversely affect species listed under the Endangered Species Act (ESA). CBD also claimed that the defendants should have reinitiated consultation under the ESA in light of new information regarding impacts not previously considered, including new studies regarding oil and gas drilling’s impact on climate change. The case had been stayed in August 2022 pursuant to a stipulated agreement while the defendants reinitiated consultation. Consultation was concluded on February 27, 2024, and the parties therefore stipulated to dismissal of CBD’s claims with prejudice as provided for in the 2022 agreement. The consultation resulted in conclusions that some species and critical habitat would be adversely affected but that continued oil and gas development was unlikely to jeopardize species or destroy or adversely modify critical habitat. Center for Biological Diversity v. Haaland, No. 2:22-cv-555 (C.D. Cal. Mar. 8, 2024)
Wisconsin Federal Court Temporarily Blocked Construction of Transmission Line Through Wildlife Refuge
On March 6, 2024, three conservation groups filed a lawsuit in the federal district court for the Western District of Wisconsin challenging federal agency actions that facilitate development of a high-voltage transmission line from Dubuque County, Iowa, to Middleton, Wisconsin, passing through the Upper Mississippi River National Wildlife and Fish Refuge. The plaintiffs asserted violations of NEPA, the Administrative Procedure Act, and the National Wildlife Refuge System Improvement Act. The plaintiffs previously challenged approvals for the project. The district court granted a preliminary injunction, but the Seventh Circuit Court of Appeals concluded that the case did not present a reviewable final agency decision. In the new lawsuit, the plaintiffs alleged that the agencies had made final agency decisions in February 2024 when they issued a final EIS and record of decision and supplemental environmental assessment. The complaint alleged that these documents violated NEPA, including by failing to take a hard look at climate change impacts even though the federal defendants and the transmission line developers acknowledged the line would carry electricity from fossil fuel power plants. On March 25, the court preliminarily enjoined the federal defendants and developers from taking action to close an agreement to exchange 19.84 acres of land within the refuge for 35.69 acres of land held by two of the developers. The injunction also barred commencement of construction on the line through the refuge until the court had an opportunity to consider the administrative record underlying the agencies’ February 2024 decisions. The court stated that “[t]here are a number of problems with the [developers] being allowed to proceed. Most fundamentally, federal defendants and [the developers] have orchestrated the events here to preclude judicial review of the final determination until after substantial damage has already been done to what until now was the Refuge. Whatever the merits of plaintiffs’ challenge to the federal defendants’ decision to proceed with the land exchange under the relevant statutes, some meaningful review by this court is necessary to determine ‘whether that decision is supported by substantial evidence.’” National Wildlife Refuge Association v. Rural Utilities Service, No. 3:24-cv-00139 (W.D. Wis. Mar. 25, 2024)
Tennessee Federal Court Said Sierra Club Had Standing to Challenge Environmental Review for Gas-Fired Power Plant
The federal district court for the Middle District of Tennessee held that Sierra Club established associational standing to challenge Tennessee Valley Authority’s (TVA’s) decision to build a natural gas-fired power plant at an existing facility. Sierra Club alleged that TVA failed to adequately analyze climate change impacts, failed to adequately address greenhouse gas mitigation in light of executive orders to decarbonize the power sector, and failed to consider a reasonable range of alternatives. Sierra Club also alleged that TVA should have prepared an EIS for the project. The court found that a Sierra Club member’s alleged impacts from exposure to pollutants were sufficient to establish a concrete injury to satisfy associational standing requirements. The court concluded, however, that Sierra Club failed to establish organizational standing. Sierra Club v. Tennessee Valley Authority, No. 3:22-cv-01054 (M.D. Tenn. Mar. 4, 2024)
Texas Federal Court Denied Motion to Dismiss American Airlines Employee Class Action Alleging ESG-Related Breaches of ERISA Duties
The federal district court for the Northern District of Texas denied a motion by American Airlines, Inc. and related defendants to dismiss a class action complaint alleging that they breached their fiduciary duties under the Employee Retirement Income Security Act (ERISA) by investing American Airlines employees’ retirement savings “with investment managers and investment funds that pursue leftist political agendas through environmental, social and governance (‘ESG’) strategies, proxy voting, and shareholder activism.” The complaint alleged that the defendants included ESG funds as investment options that “pursue nonfinancial and nonpecuniary ESG policy agendas as part of their investment strategies,” as well as funds not branded as ESG funds that were “managed by investment companies who have voted for many of the most egregious examples of ESG policy mandates, on issues such as divesting in oil and gas stocks, banning plastics, requiring ‘net zero’ emissions, and imposing ‘diversity’ quotas in hiring.” The court found that the plaintiff adequately alleged that the defendants breached their duty of prudence and duty to monitor “by selecting, including, and retaining investment managers who pursue ESG objectives rather than focusing exclusively on maximizing financial benefits” and by failing to monitor those responsible for retirement plan assets. The court also found that the plaintiff adequately alleged a breach of the duty of loyalty with the complaint’s “plausible story” that the defendants’ “public commitment to ESG initiatives motivated the disloyal decision to invest Plan assets with managers who pursue non-economic ESG objectives through select investments that underperform relative to non-ESG investments, all while failing to faithfully investigate the availability of other investment managers whose exclusive focus would maximize financial benefits for Plan participants.” Spence v. American Airlines, Inc., No. 4:23-cv-00552 (N.D. Tex. Feb. 21, 2024)
New York Appellate Court Reinstated Case Challenging PSC Decision on Transfer of Generation Facility to Cryptocurrency Company
The New York Appellate Division reversed the dismissal of a proceeding challenging the New York State Public Service Commission’s (PSC’s) September 2022 declaratory ruling that a cryptocurrency company’s acquisition of a limited liability company that owned a natural gas-fired cogeneration facility in Niagara County did not require further PSC review. A trial court dismissed the proceeding as unripe because the PSC had not yet ruled on the petitioners’ application for rehearing. The appellate court found that the State Administrative Procedure Act foreclosed a rehearing on the September 2022 declaratory ruling and that the ruling was therefore ripe for review. The appellate court also rejected the cryptocurrency respondents’ contention that the appeal was moot because the transaction was complete and because it would be costly to undo construction and improvements to the facility undertaken since September 2022. The appellate court found that the petitioners sought relief that would be available even if unwinding the transaction was not feasible, namely analysis under Section 7 of New York’s Climate Leadership and Community Protection Act that could lead to environmental mitigation requirements. The court also rejected the argument that the petitioners lacked standing, finding that increase in use of the facility would affect the petitioners’ members differently than other members of the public due to the members’ proximity to the facility. Clean Air Coalition of Western New York, Inc. v. New York State Public Service Commission, No. CV-23-0689 (N.Y. App. Div. Mar. 7, 2024)
Appellate Court Largely Upheld Oregon’s Climate-Friendly and Equitable Communities Rules
The Oregon Court of Appeals largely rejected a challenge to the Oregon Land Conservation and Development Commission’s (LCDC’s) Climate-Friendly and Equitable Communities rules. The court described the rules as requiring communities “to update their local land use and transportation system plans to allow for greater residential density, reduce the amount of land that must be reserved for parking, achieve a reduction in residents’ vehicle travel miles, and provide infrastructure for electric vehicles, among other things,” and as well as requiring designation of, and adoption of plans and regulations for, “climate-friendly areas.” The court rejected procedural challenges, as well as contentions that LCDC did not have statutory authority for the rules. The court agreed, however, with City petitioners that one provision was invalid because it gave LCDC an enforcement authority not authorized by statute and also found that another provision was invalid because LCDC did not comply with notice requirements. City of Cornelius v. Department of Land Conservation & Development, Nos. A180037, A180153 (Or. Ct. App. Mar. 6, 2024)
Connecticut Court Said Plaintiff’s Biomass Facilities Remained Exempt from Phase-Out of Renewable Energy Credit Eligibility
A Connecticut Superior Court agreed with a company that owned two biomass energy facilities in the state that its exemption from a 2013 statute’s reduction of financial support for such facilities had ended when qualifying power purchase contracts ended. The 2013 law responded to “increased scientific understanding that burning carbon based fuels, including wood, contributes to climate change.” It phased out use of renewable energy credits to support certain biomass facilities but included an exemption for biomass facilities that entered into a power purchase agreement with an electric supplier or electric distribution company before June 5, 2013. The court held that the law did not provide that a party that previously held an exemption would lose the exemption if the qualifying power purchase agreement terminated or ended and also rejected the Connecticut Department of Energy and Environmental Protection’s argument that it had discretion to revoke the exemption. ReEnergy Holdings, LLC v. Connecticut Department of Energy & Environmental Protection, No. HHB-CV-22-6075973-S (Conn. Super. Ct. Mar. 14, 2024)
Washington Court Declined to Block Implementation of Updated Building Codes
Earthjustice announced that a Washington Superior Court had issued a ruling from the bench denying gas and homebuilding industry petitioners’ request to block implementation of amendments to State Building Code Council (SBCC) rules that, among other things, set efficiency standards to incentivize efficient electric appliances such as heat pumps. SBCC’s amended codes were originally scheduled to take effect in July 2023, but SBCC reviewed and amended the codes after the Ninth Circuit held that the Energy Policy and Conservation Act preempted the City of Berkeley’s ban on natural gas infrastructure in new buildings. Northwest Regional Council of the National Construction Alliance v. Washington State Building Code Council, No. 23-2-00615-34 (Wash. Super. Ct. Mar. 8, 2024)
Massachusetts Court Ruled on Energy Policy Advocates’ Fees Request in Public Records Law Litigation Against Attorney General
A Massachusetts Superior Court granted in part and denied in part plaintiff Energy Policy Advocates’ motion for fees and costs incurred in the plaintiff’s litigation under the Public Records Law seeking disclosure of records concerning “a politically sensitive program whereby the [Office of the Attorney General] secured private funding through a university-affiliated foundation to retain lawyers specially assigned to energy-related litigation.” The court concluded the plaintiff was entitled to fees since “there can be no serious question” that the plaintiff was “substantially successful in security the vast majority of the public records it sought.” The court found that some requested fees were not supported with sufficient documentation, that hourly rates for three attorneys were excessive, and that the plaintiff could not be awarded fees for contested matters on which it did not prevail. The court rejected arguments that the plaintiff could not be awarded fees incurred prior to the filing of its complaint or fees for summary judgment motions that the court denied without prejudice on purely procedural grounds. Energy Policy Advocates v. Office of the Attorney General, No. 1984CV1753-C (Mass. Super. Ct. Feb. 27, 2024)
NEW CASES, MOTIONS, AND OTHER FILINGS
Pennsylvania County Filed Lawsuit Seeking to Hold Fossil Fuel Industry Defendants Liable for Climate Change Impacts
Bucks County, Pennsylvania filed a lawsuit in the Pennsylvania Court of Common Pleas against fossil fuel companies and American Petroleum Institute alleging that the defendants had engaged in a “disinformation campaign to discredit the scientific consensus on climate” despite having known since at least the 1950s that fossil fuels’ production of greenhouse gas emissions could have “catastrophic consequences for the planet and its people.” The County alleged that while undertaking this campaign, the defendants took actions to protect their own investments from climate change impacts. The County further alleged that the defendants’ promotion of fossil fuel use and concealment of fossil fuels’ connection to climate change—which the County described as “straight out of the advertising playbook of Big Tobacco”— “delay[ed] meaningful development of alternative energy sources and exacerbate[ed] the costs of adapting to and mitigating the adverse impacts of the climate crisis, including the climate crisis in Bucks County.” The County alleged that the adverse impacts included more frequent and intense storms, flooding, storm surge, rising waters in the tidal Delaware and Schuylkill Rivers, saltwater intrusion, droughts, and extreme heat events. The County said it had incurred and would continue to incur substantial costs for actions to adapt to climate change, including for new and upgraded infrastructure to withstand the impacts, increased maintenance and emergency operations, and provision of services such as cooling centers. The County asserted causes of action for strict products liability—failure to warn, negligent products liability—failure to warn, negligence, public nuisance, private nuisance, trespass, and civil conspiracy. The relief sought by the County included compensatory and punitive damages, equitable relief, disgorgement of profits, costs including attorney fees, and pre-judgment interest. Bucks County v. BP p.l.c., No. 2024-01836-0000 (Pa. CCP, filed Mar. 25, 2024)
Supreme Court Review of NEPA Reviews’ Scope Sought in Utah Rail Line Case
A railroad company and a coalition of seven Utah counties filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the D.C. Circuit’s August 2023 opinion finding numerous NEPA violations in the Surface Transportation Board’s review of a rail line in Utah that would be used to transport waxy crude oil. The petition presented the question of whether NEPA “requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.” The petitioners identified a circuit court split on this issue, with five circuits reading the Court’s 2004 decision in Department of Transportation v. Public Citizen to mean “that an agency’s environmental review can stop where its regulatory authority stops,” while two circuit require agencies to review “any impact that can be called reasonably foreseeable.” Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (U.S. Mar. 4, 2024)
Challenges to SEC Climate Disclosure Rule Consolidated in Eighth Circuit; Rule Stayed by SEC
Ten petitions for review were filed in six circuit courts of appeal after the U.S. Securities and Exchange Commission (SEC) adopted a final rule requiring disclosures of climate-related information. Challenges to the final rule were filed by energy companies, business and industry groups, states, environmental organizations, and an organization that owns shares in companies subject to the rule and that frequently advocates to oppose efforts to advance resolutions related to climate change. The SEC submitted a notice of multicircuit petitions for review to the Judicial Panel on Multidistrict Litigation, which randomly selected the Eighth Circuit as the venue in which to consolidate the petitions. The Fifth Circuit Court of Appeals had granted an administrative stay of the rule on March 15 in a case brought by two oilfield services companies; the Fifth Circuit then dissolved the stay after the Eighth Circuit was selected. On March 26, 2024, the two companies asked the Eighth Circuit to grant their pending emergency motion for an administrative stay and a stay pending judicial review, which had been fully briefed before the Fifth Circuit. The Chamber of Commerce of the United States of America, Texas Association of Business, and Longview Chamber of Commerce also applied for an emergency stay before the Eighth Circuit, as did state petitioners and the National Legal and Policy Center and Oil and Gas Workers Association. On March 29, the SEC filed a motion to establish a consolidated briefing schedule for all stay motions, requesting that all such motions be filed by April 5 and that briefing be completed by May 10. The oilfield services companies asked that the Eighth Circuit rule based on the existing briefing. Other business, industry, and state petitioners asked for a more accelerated briefing schedule than that requested by the SEC. Environmental organization petitioners consented to the SEC’s motion.
On April 4, the SEC informed the Eighth Circuit that it had entered a stay of the rule pending completion of judicial review of the consolidated Eighth Circuit petitions. The SEC stated that a stay would facilitate the Eighth Circuit’s “orderly resolution” of the challenges and avoid potential regulatory uncertainty. The SEC’s stay order noted that in issuing the stay, the SEC was not departing from its view that the rule was “consistent with applicable law and within the Commission’s long-standing authority to require the disclosure of information important to investors in making investment and voting decisions.”
The substantive issues raised in the stay motions included that the final rule was arbitrary and capricious under the Administrative Procedure Act, that the rule exceeded SEC’s statutory authority, that the major questions doctrine barred the rule, and that the rule violated the First Amendment. Iowa v. Securities & Exchange Commission, No. 24-1522 (8th Cir., filed Mar. 12, 2024)
States Challenged EPA Regulations for Greenhouse Gas Emissions in Oil and Gas Sector
Two petitions for review were filed in the D.C. Circuit Court of Appeals to challenge the U.S. Environmental Protection Agency’s (EPA’s) final Clean Air Act rule revising new source performance standards for greenhouse gas and volatile organic compound emissions in the oil and natural gas sector and establishing emission guidelines for greenhouse gas emissions from existing sources in that sector. The first petition was filed by the State of Texas and the Texas Commission on Environmental Quality. The second petition was filed by 24 states, led by Oklahoma, along with the Arizona Legislature. The Oklahoma petition contended that the final rule exceeded EPA’s authority and was arbitrary, capricious, an abuse of discretion, and not in accordance with law. Nineteen states and the District of Columbia moved to intervene on behalf of EPA, as did 11 environmental and public health organizations. Texas v. EPA, Nos. 24-1054, 24-1059 (D.C. Cir., filed Mar. 8, 2024
Juliana Plaintiffs Asked Ninth Circuit to Reject Federal Government Petition for Writ of Mandamus Dismissing Their Case
Youth plaintiffs filed their response to the federal government’s petition for writ of mandamus in which the government asks the Ninth Circuit to order the federal district court for the District of Oregon to dismiss the plaintiffs’ climate-based constitutional claims. The plaintiffs argued that the federal defendants failed to satisfy their high burden of establishing that the Ninth Circuit has jurisdiction to award mandamus because the defendants would be able to appeal the district court’s orders, including the denial of the motion to dismiss, after trial. The plaintiffs also argued that the defendants would not be damaged or prejudiced in a way not correctable on appeal; that the district court’s orders were not clearly erroneous as a matter of law; that the district court orders did not commit an “oft-repeated error”; and that no new novel question of law was before the court. The plaintiffs contended that the Ninth Circuit had previously rejected similar arguments for mandamus jurisdiction. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir.)
Lawsuit Challenged Environmental Review for Logging in Plumas National Forest
Three environmental groups filed a lawsuit challenging the U.S. Forest Service’s environmental review of logging activity in Plumas National Forest in California. The plaintiffs alleged that although the stated purpose for the logging activity was community protection from wildfires, the U.S. Forest Service failed to consider alternatives that limited logging to areas most proximate to human communities or that used management techniques such as prescribed burning in more remote areas. The plaintiffs also alleged that the U.S. Forest Service violated NEPA by failing to prepare an EIS “despite the substantial scientific questions and expert dispute over the efficacy of mechanical thinning to achieve the project’s stated purpose of wildfire risk reduction for communities and infrastructure.” The plaintiffs also alleged that the Forest Service failed to take a hard look at various issues, including carbon storage and emissions from affected forestlands. John Muir Project of Earth Island Institute v. U.S. Forest Service, No. 2:24-at-00352 (E.D. Cal., filed Mar. 22, 2024)
States Challenged Biden Administration Halt on Approvals of LNG Exports
Sixteen states filed a lawsuit in the federal district court for the Western District of Louisiana challenging the Biden administration’s decision to stop new approvals of liquefied natural gas (LNG) exports to non-Free-Trade-Agreement countries. The states alleged that this “LNG Export Ban” violated the Natural Gas Act’s requirement that applications for export be approved unless the Secretary of Energy makes an affirmative finding that the application is not in the public interest. The states also asserted that the Biden administration’s actions were not authorized by statute; violated the Administrative Procedure Act’s notice-and-comment requirements; were arbitrary and capricious; violated the Congressional Review Act; and unreasonably delayed agency action. The states alleged, among other things, that the Ban was inconsistent with the U.S. Department of Energy’s (DOE’s) July 2023 denial of a rulemaking petition asking DOE to promulgate new regulations or guidance for its consideration of LNG export applications, in which the petitioners contended DOE should account for LNG’s net climate and environmental impact in its public-interest analysis. The states also asserted that the LNG Export Ban violated separation of powers and the Foreign Commerce Clause and that the actions of DOE and its officials as well as President Biden’s “Proclamation” were ultra vires. The states alleged that the LNG Export Ban was motivated by international pressure to transition away from fossil fuels and was also politically motivated, citing reporting that White House officials had acknowledged the Ban was a way “to address concerns of young and climate-focused voters.” Louisiana v. Biden, No. 2:24-cv-00406 (W.D. La., filed Mar. 21, 2024)
Lawsuit Challenged Decision Not to List Joshua Tree Under Endangered Species Act
WildEarth Guardians challenged the U.S. Fish and Wildlife Service’s (FWS’s) 2023 determination not to list two species of Joshua tree under the Endangered Species Act. In WildEarth Guardians’ previous challenge to the FWS’s 2019 determination not to list the Joshua tree, the federal district court for the Central District of California held that the 2019 determination was arbitrary and capricious, including because the FWS gave inadequate consideration to climate change. In the new lawsuit, WildEarth Guardians alleged that the FWS “repeated many of the same mistakes” that it made in the 2019 decision. The complaint asserted that the FWS’s determination was arbitrary and capricious, including because it “improperly dismissed, misinterpreted and misapplied the best available science on threats from climate change, fire, habitat loss and degradation and cumulative threats” and “failed to sufficiently analyze the inadequacy of existing regulatory mechanisms to address the primary threats to Joshua tree, particularly climate change.” In addition, WildEarth Guardians contended that the FWS arbitrarily and capriciously found that Joshua trees are not threatened throughout a significant portion of their range, failed to use best available science regarding climate change impacts to Joshua trees, and arbitrarily defined “foreseeable future” to extend only 17 to 47 years from the present when current and future threats, including climate change threats, could be predicted until at least 2099. WildEarth Guardians v. U.S. Fish & Wildlife Service, No. 2:24-cv-02281 (C.D. Cal., filed Mar. 20, 2024)
Lawsuit Challenged Denial of Endangered Species Act Protections for Freshwater Snail
Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the District of Columbia challenging the U.S. Fish and Wildlife Service’s decision not to list the Arkansas mudalia, a freshwater snail, under the Endangered Species Act. The complaint alleged that the Arkansas mudalia “has been extirpated from 90% of its historic range and remaining populations face a myriad of ongoing and worsening threats to their survival, including climate change-driven impacts to its habitat suitability.” CBD asserted that the FWS did not rationally address factors expected to negatively impact the species’ future viability, including climate change-driven drought and storms. CBD alleged that the listing decision was based on “unsupported conclusions,” including an alleged finding that “climate change is unlikely to affect future viability of the Arkansas mudalia because its habitat is medium-to-large rivers.” Center for Biological Diversity v. Haaland, No. 1:24-cv-00691 (D.D.C., filed Mar. 11, 2024)
Coal Mining Company Said Environmental Review Delay for Lease Sale Was Unlawful
A coal mining company that submitted an application for an emergency coal lease sale in 2019 filed a lawsuit in federal district court in North Dakota to compel federal defendants to complete their environmental review for the lease application. The company alleged that federal defendants had told the company that the environmental assessment for its application could not move forward because the impact on greenhouse gases could not be analyzed because “no test currently exists to determine whether leasing the federal coal … will have a significant impact on global carbon dioxide emissions.” The company described the federal inaction as “inexcusably part of ‘what appears to be … a de facto moratorium’ concerning federal coal leasing.” The complaint asserted violations of the Mineral Leasing Act, the Mining and Minerals Policy Act of 1970, NEPA, and the Administrative Procedure Act. Falkirk Mining Co. v. U.S. Department of the Interior, No. 1:24-cv-00040 (D.N.D., filed Feb. 29, 2024)
San Diego Man Charged with Illegal Importation and Selling of Greenhouse Gases
The U.S. Attorney’s Office for the Southern District of California announced on March 4, 2024 that a San Diego resident had been arrested and charged with smuggling greenhouse gases into the U.S. from Mexico and selling them for profit. The indictment alleged that the defendant purchased refrigerants in Mexico, brought them into the U.S. in his vehicle, and posted them for sale on various websites, and sold them for a profit. The indictment charged him with one count of conspiracy, five counts of importation contrary to law, and seven counts of sale of merchandise imported contrary to law. The U.S. Attorney’s Office said it was the first prosecution to include charges related to the American Innovation and Manufacturing Act of 2020, which prohibits importation of hydrofluorocarbons without allowances issued by EPA. United States v. Hart, No. 3:24-cr-00383 (S.D. Cal.)
U.S. Charged Climate Protestors Who Allegedly Dumped Powder on Constitution with Felony Destruction of Government Property
On March 1, 2024, the U.S. Attorney’s Office for the District of Columbia announced the charging of two defendants in connection with an attack on the U.S. Constitution at the National Archives. The defendants allegedly dumped a fine red powder over the Constitution’s display case. One of the defendants had been charged previously in connection with an alleged act of vandalism at the National Gallery in November 2023. News reports said both defendants were members of the Declare Emergency climate protest group. They were charged with felony destruction of government property. United States v. Green, No. 1:24-cr-00062 (D.D.C.)
Local Organization Filed Lawsuit Alleging Harms from Power Plant Used for Crypto-Mining
A local organization filed a lawsuit in the Pennsylvania Court of Common Pleas against the Commonwealth of Pennsylvania, Pennsylvania agencies and officials, and cryptocurrency companies that own and operate a power plant in Carbon County for the purpose of generating electricity for crypto-mining. The plaintiff alleged that the power plant burned waste coal and tires, generating carbon dioxide and local pollutant emissions, and that for several years before the cryptocurrency company acquired it, it had been operating at less than 10% of its full capacity. The complaint’s allegations included that Pennsylvania subsidized the company’s operations with tax credits and failed to regulate the power plant or the crypto-mining industry. Against Pennsylvania defendants, the complaint asserted breach of fiduciary duty claims under the Environmental Rights Amendment of the Pennsylvania Constitution. Against the cryptocurrency companies, the plaintiff asserted claims of public and private nuisance, products liability—design defect, and negligence. The plaintiff sought injunctive relief from the Pennsylvania defendants and compensatory and punitive damages from the cryptocurrency defendants. Save Carbon County v. Commonwealth, No. 240302915 (Pa. CCP, filed Mar. 26, 2024)
Lawsuit Said Tulare County Improperly Relied on CEQA Exemption to Approve Hydrogen Plant
A lawsuit filed in California Superior Court challenged the County of Tulare’s approval of the Golden State Hydrogen Plant. The petitioner alleged that the approval relied on an “erroneous determination” that the project was exempt from review under the California Environmental Quality Act (CEQA). The petitioner’s allegations included that the project could potentially increase greenhouse gas emissions. Pixley Residents for Environmental Justice v. County of Tulare, No. _ (Cal. Super. Ct., filed Mar. 4, 2024)
Tennessee Attorney General Said BlackRock Violated Tennessee Consumer Protection Act with Misleading Information About ESG
The Tennessee Attorney General filed a civil enforcement complaint against BlackRock, Inc. in December 2023 alleging that the investment management firm had “been at the forefront of using aggressive strategies to push controversial Environmental, Social, and Governance [(ESG)] goals across the assets it manages,” including goals to reduce portfolio companies’ carbon emissions. The complaint alleged that BlackRock misled consumers about the scope of its ESG activity in violation of the Tennessee Consumer Protection Act. The Attorney General contended that the “shifting public and political dynamics around ESG have left BlackRock in a bind”— needing to appeal to “a broad base of customers, many of whom do not want their funds or investment managers engaged in ESG-related activities,” while remaining a member of organizations that “demand sweeping ESG commitments.” The Attorney General charged that BlackRock had elected to deceive consumers about its commitment to ESG aims by “falsely convey[ing] that certain of its funds do not incorporate ESG considerations” and by “overstat[ing] the extent to which its ESG aims bear on companies’ financial positioning and performance,” including by representing that consideration of ESG factors creates financial benefits to investors. The Attorney General sought an injunction to bar BlackRock from engaging in TCPA violations; civil penalties; orders and judgment restoring to consumers money or property lost as a result of the violations; and orders and judgments necessary to “disgorge the net-profits and ill-gotten gains BlackRock realized.” State ex rel. Skrmetti v. Blackrock, Inc., No. 23CV-618 (Tenn. Cir. Ct., filed Dec. 18, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
Belgium: Farmer Files New Case Against Total Energies for Climate Damages
In March 2024, a legal action was launched by Hugues Falys, a farmer, and several associations (FIAN, Greenpeace, Ligue des droits humains) against Total Energies. The summons have been filed on 13th March with the Commercial Court of Tournai. The legal basis is Belgian extra-contractual civil liability (articles 1382 and 1383 of the former Civil Code). The court has set 16 April 2024 as the date for the introductory hearing so that both parties could agree on the timeline for the legal proceedings (exchange of pleadings, hearings, etc.). This is the first time that a citizen has taken a multinational to court in Belgium over a climate dispute. Hugues Falys, FIAN, Greenpeace, Ligue des droits humains v. TotalEnergies (The Farmer Case (Belgium)
DECISIONS AND SETTLEMENTS
Argentina: Court Upholds Partial Nonrenewal of Power Plant Due to Noise Pollution
In November 2017, a coalition of individuals and nonprofits brought a preventive action against two thermoelectric power stations Matheu II (APR Energy) and Matheu III (Araucaria), located in the Argentinian city of Pilar. The petition seeks to block the plants on different environmental grounds, including that their construction began without a required environmental assessment, and that the plants are inconsistent with international climate agreements such as the Kyoto Protocol and the Paris Agreement because they will use fossil fuels. The complaint also relies on Argentina’s civil code, Constitution and General Law of the Environment, as well as a number of international human rights treaties.
On November 30 and December 21, 2017, the Federal Court of Campana granted precautionary measures halting the construction and operation of the plants. The Court based its decisions on the General Act of the Environment (Act 25.675), the protection of collective interests (Art. 14 of the Civil and Commercial Code) and the prevention of damages (Art. 1.711 of the Civil and Commercial Code). Climate impacts were not expressly addressed by the Court. These decisions were upheld by the Federal Court of Appeals of San Martin.
After a requirement by Araucaria, on December 22, 2022, the Federal Court of Campana partially modified the precautionary measure allowing the provisional (six months) and partial (two turbines) operation of the power plant Matheu III, under the monitoring of the Municipality of Pilar. The global energy crisis and the rising of energy prices due to the Russian invasion of Ukraine were some of the grounds alleged.
On June 29, 2023, the Court decided not to renew the partial allowance of operation of the plant Matheu III after receiving a negative report from the Municipality of Pilar due to noise pollution. It is worth mentioning that, according to this order, the company APR Energy has presented a Plan for abandoning the plant Matheu II. On February 05, 2024, the Federal Court of Appeal of San Martín upheld the decision of the Federal Court regarding the operation of the plant Matheu III. Furthermore, it asked APR Energy to submit a closing audit to the Ministry of the Environment and a notification to the water authority of the activity’s cease. (Hahn et al. v. APR Energy S.R.L (Juvevir Asociación Civil v. APR Energy and Araucaria Energy), Federal Court of Campana, Argentina)
Argentina: Court Requires Company to Submit Information on Environmental Impact When Conducting Offshore Fossil Fuel Exploration
On January 13, 2022, a group of NGOs filed a constitutional collective action (amparo colectivo ambiental) against the Argentinian National State and the Ministry of Environment and Sustainable Development for its approval of offshore exploration activities. This case presents the climate impacts of the projects as the main grounds for its claims. Among others, plaintiffs mention that the project breaches national and international climate commitments and affects intergenerational equity, that the NDC to the Paris Agreement is insufficient, that the State is responsible not only for emissions within its territory but also for emissions arising from future fossil fuels exports, and that the Environmental Impact Assessment is flawed because it did not consider climate impacts.
On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to fossil fuel exploration activities. The order does not mention any concerns about climate change. Instead, the judge focuses on failures regarding procedural rights (participation and information), explicitly mentioning the Escazú Agreement, lack of strategic environmental assessment, and possible risk to marine biodiversity. In the decision, the precautionary principle plays a key role. On February 15, 2022, the government appealed the injunction order.
On June 3, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) annulled the injunction relief delivered by the Federal Court on February 11, 2022. However, at the same time, the Court ordered the Ministry of Environment and Sustainable Development, as a new injunction, to issue a new complementary environmental impact assessment that considers possible cumulative impacts of the activities. In this new assessment, the spatial and temporal scope of the project’s implementation must be analyzed and weighed. On December 5, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) considered that the authority had met all the requirements asked in its order of June 3rd. That implies the termination of the injunction and, therefore, the exploration activity can proceed until a final decision on the merits is delivered.
On October 4, 2023, the plaintiffs requested a new precautionary measure in response to further governmental authorization of exploratory activity and changes in the exploration timeline, requesting its immediate halt. On December 4, 2023, the Public Prosecutor expressed his opinion on the precautionary measure. Notably, the Public Prosecutor fully supported Greenpeace et al.’s request, focusing on the climate dimension. Of particular interest here is his acknowledgment of the soundness of climate science (including climate attribution science), the prominent role of fossil fuel in the problem, and his mention of the global proliferation of climate litigation, particularly right-based cases against the State and corporations. The Prosecutor referred to human rights treaties, the Paris Agreement, IPCC reports, and the national constitution as legal bases for this case and observed that the IACtHR’s Advisory Opinion 23/17 reinforced this legal framework. He also noted a global (transnational) consensus that climate issues are not exempt from judicial scrutiny, regardless of whether the courts’ decisions reject, support, or defy the governments’ behaviors. Specifically, the Prosecutor conducted a preliminary compatibility assessment between the State climate commitments (NDCs, long-term strategy, national mitigation plans) and the expected emissions of the projects. On the one hand, Argentina’s climate commitments are highly insufficient (referencing Climate Action Tracker reports). On the other hand, it is unclear how the expected emissions will be consistent with the 2030 goals and the 2050 net-zero pledge. Those emissions are not speculative but foreseeable. Furthermore, according to the Prosecutor, even if the fossil fuels produced were exported, their emissions must be considered (referencing the People v. Arctic Oil). In sum, the State must explain how the offshore fossil fuel initiatives are consistent with its climate and human rights commitments before continuing the exploratory activity. The Prosecutor also challenged a tax exemption provided to the companies by the government, noting that this goes directly against the alleged reasons that justified the projects in the first place: financing the energy transition.
On December 27, 2023, despite the Prosecutor’s opinion, the Federal Court rejected the precautionary measures requested. The Court found that halting an exploratory activity is, at this point, excessive and premature. Notwithstanding, in response to the Prosecutor’s concerns, the Court asked the State to inform its mitigation goals, the compatibility of the exploration and exploitation projects with those goals, and how this issue was dealt with in the environmental impact statement. (Greenpeace Argentina et al., v. Argentina et. al., Federal Court of Mar del Plaza N. 2, Argentina)
France: NGOs’ Suit Requesting Greater Oversight of Human Rights and Environmental Impact in Oil Project Is Denied Emergency Relief, but Remains Open on the Merits
Six nongovernmental organizations have sued energy company Total over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project’s threats to human rights and the environment.
On February 28, 2023, the court published its two decisions. The court has recalled that the summary procedure is a judicial mechanism that enables a rapid dispute examination. The interim relief judge is responsible for providing an urgent response to a controversy by pronouncing interim measures to preserve the rights of the parties before their assessment by the judge of the merits of the dispute. The court has stated that it is within the powers of the summary proceedings judge to issue an injunction in the application of the above-mentioned provisions when the company, subject to the duty of vigilance, has not drafted a plan or when the summary and incomplete nature of the plan is tantamount to the non-existence of the plan, or when manifest unlawfulness can be found. However, it is outside the powers of the judge in summary proceedings to assess the reasonableness of the measures provided for by the plan when this assessment requires an in-depth examination of the elements of the case, which is the judge’s sole responsibility on the merits. These conditions, set forth by articles 834 and 835 of the Code of Civil Procedure, were not present in these cases because the court considered the case too complex to be dealt with under an emergency procedure. This judgment is devoid of any res judicata in the main proceedings. The judge can give a different judgment on the merits. (Friends of the Earth et al. v. Total, Nanterre High Court, France)
Mexico: Greenpeace Appeals Court’s Decision to Hold Mexico Accountable to Climate Change Commitments
Greenpeace challenged the constitutionality of the amendments to the Electric Industry Act and the National Electricity Sector Development Program 2020-2034 (PRODESEN). In its suit, Greenpeace also asked for a stay on implementing both regulations. Plaintiff argued that the regulations displace the use of renewable energy sources in electricity generation in favor of polluting fossil fuel sources. This transgresses Mexico’s international commitments on climate change.
On January 9, 2023, the District Court ruled on the merits in favor of Greenpeace. The District Court decided that the 2021 amendments to the Electric Industry Law and the Energy Sector Program 2020 violate the right to a healthy environment by prioritizing the energy generated through fossil fuels. On February 9, 2023, the Mexican government appealed the decision.
On January 24, 2024, the Third District Court in Administrative Matters Specialized in Antitrust, Broadcasting, and Telecommunications decided that Greenpeace did not have legal standing to file the lawsuit because the Energy Sector Program did not cause the plaintiff a direct, real, and current damage. The Court made this decision because it interpreted that the Energy Sector Program is a planning instrument that integrates objectives and strategies with specific actions to be conducted by the Ministry of Energy based on an analysis of the energy sector and sets a series of guidelines, objectives, and specific related strategies. These objectives and strategies are indicative, and they are merely declarative documents that do not generate any type of legal obligation. Therefore, it is not an act that affects the plaintiff’s rights. Then, the case was dismissed.
On February 9, 2024, Greenpeace appealed the Court’s decision. The appeal is pending resolution by the appellate Collegiate Court. (Greenpeace v. Ministry of Energy and Others (on the Energy Sector Program 2020 and Electric Industry Law), District Court in Administrative Law, Mexico)
Germany: Court Rules that Germany Must Adopt Immediate Action Program to Comply with Targets for Building and Transportation Sectors
Friends of the Earth Germany submitted a claim to the Higher Administrative Court Berlin-Brandenburg for its missing emission targets for the building and transport sector. The organization argues that the sectors exceed the annual CO2 emissions considered permissible under law and are therefore required to draft an emergency program detailing the speedy reduction of their respective emissions and to secure the adherence to targets between 2023 to 2030.
On November 30, 2023, the Higher Administrative Court Berlin-Brandenburg ruled that the federal government must adopt an immediate action program (‘Sofortprogramm’) under Section 8 of the Climate Protection Act (CCA). The program is intended to ensure compliance with the annual emission targets for the building and transportation sectors from 2024 to 2030. At the level of the admissibility of the lawsuit, the court confirmed that environmental associations can sue for enacting an immediate action program under the CCA. Such a right to sue for implementing the CCA is not explicitly provided for in German procedural law. On the merits, the court found that the federal government is obliged to decide on an immediate program by exceeding permissible GHG emissions in the building and transport sectors, thereby confirming that the provisions on immediate programs in the CCA are binding, enforceable law. The defendant has filed an appeal with the German Federal Administrative Court. (DUH and BUND v. Germany, Federal Administrative Court, Germany)
Argentina: Court Rejects Request for Precautionary Order Preventing Offshore Seismic and Fossil Fuel Exploration
On August 1, 2023, Fundación Ambiente y Recursos Naturales (FARN) (an ENGO) filed a judicial claim asking for a precautionary order that prevents national authorities, including the Secretary of Climate Change, the Ministry of the Environment and Sustainable Development and the Secretary of Energy, from providing consent for offshore seismic exploration and/or offshore fossil fuel exploitation until a proper environmental impact assessment and a strategic environmental assessment have been carried out, as the already conducted environmental impact assessment was described as deficient. According to the claim, these environmental assessments should include an assessment of activities’ cumulative and climate impacts, a consideration of energy alternatives and a cost-benefit analysis in the context of a just energy transition. Furthermore, FARN asked for the immediate halt of any already consented offshore exploration activity until the mentioned assessments had been conducted. This precautionary claim is an accessory to a future civil claim that FARN intends to file next with the aim to prevent environmental damages in the marine ecosystem and challenge the technical reasonableness of developing projects that are contrary to Argentina’s climate commitments.
Among the deficiencies observed in already conducted environmental assessments, the claim mentions an underestimation of projects’ GEI emissions, including methane emissions due to leakages in the exploration and production stage and emissions due to the combustion of the extracted fossil fuels. Allegedly, this deficiency prevented authorities from properly considering the cumulative impacts of GEI emissions on the climate.
Different legal grounds are alleged by FARN in the claim, including Article 41 of the Argentinean Constitution (right to a healthy environment), the duty to prevent environmental damage (Art. 2.g., Act 25.675), access to environmental information (Art. 16, Act 25.675), the duty to conduct environmental assessment (Art. 11 and 13, Act 25.675), the environmental principles (precaution, prevention, sustainability, intergenerational equity, non-regression), the Climate Change Act 27.520, the Paris Agreement, the Convention on Biological Diversity, the Escazú Agreement and the American Convention on Human Rights (as interpreted by the Inter-American Court in its Advisory Opinion 23/17).
According to the claim, several transnational corporations are involved in the development of these activities together with YPF (the national energy corporation), including Equinor, Exxon Mobil, Qatar Petroleum Pluspetrol, Shell, Tullow, and Total Austral. This is not the first case challenging fossil fuel exploration and exploitation activities in the Argentinean Sea.
On September 14, 2023, the Federal Court rejected the precautionary order on the grounds that the case presents a high degree of technical complexity that cannot be addressed in an interim instance.
This decision was appealed by FARN on October 1, 2023, indicating that the court did not rule on the central aspect of the claim, which was to verify the cumulative impacts of the different offshore exploration and extraction projects according to the legal grounds alleged. FARN argued that the request did not require the determination of technically complex issues but the enforcement of compliance with the law in terms of environmental impacts.
This appeal was rejected by the Court of Appeal on November 22, 2023, on the same grounds: technically complex issues cannot be addressed in a precautionary claim. On December 5, 2023, FARN appealed this decision before the Supreme Court. (FARN v. Ministry of the Environment and Sustainable Development, Administrative Court of Azul, Argentina)
Peru: Court Calls on Ministry of Environment to Comply with Indigenous Consultations in Compliance with Climate Regulation
Instituto de Defensa Legal del Ambiente y el Desarrollo Sostenible del Perú (IDLADS Peru) initiated legal proceedings on August 14, 2023, urging the Ministry of the Environment (MINAM) to adhere to the Sixteenth Final Complementary Provision of the Regulations of Law No. 30754. This provision mandates that within a maximum of one hundred and eighty (180) business days following its enactment, MINAM, in collaboration with indigenous or aboriginal communities, must present to the Executive Branch a blueprint for a guarantee fund, with a special focus on prioritizing the interests of indigenous or native peoples.
In a letter dated July 26, 2023, the IDLADS formally requested MINAM’s compliance with this legal obligation. After more than ten working days having passed since the receipt of this letter without any response from the authority, IDLADS proceeded with the filing of the present action. This action was taken to compel the Ministry of the Environment to fulfill its obligation as stipulated by the aforementioned regulation, considering that the stipulated time frame had lapsed.
In November 2023, a ruling was issued, compelling MINAM to present to the Executive Branch the design of a guarantee fund, with a clear emphasis on prioritizing the interests of indigenous or native peoples. This directive was issued within the framework of the Fifth Final Complementary Provision of the Peruvian Climate Change Framework Law (LMCC). Constitutional Compliance proceeding, about Peruvian Climate Change Law (Constitutional Court of Lima, Peru)
NEW CASES
Germany: NGO Files Constitutional Claim Challenging Germany’s Climate Protection Program
On October 24, 2023, the German environmental organization Deutsche Umwelthilfe (DUH, Environmental Action Germany), together with a group of German minors and young adults, filed a new constitutional complaint before the Federal Constitutional Court (FCC) against the Federal Government. Building on the principle of intertemporal freedom developed by the FCC in the Neubauer decision, the constitutional complaint argues that the climate protection program adopted by the federal government in October 2023 violates the fundamental rights of the plaintiffs. Climate protection programs under § 9 (1) of the German Climate Protection Act are intended to ensure the achievement of climate protection goals, as outlined in the Climate Protection Act. The starting point of the lawsuit is that climate protection programs also have a constitutional dimension because only if the emission reduction path of the climate protection program is ambitious enough can the mandate of intertemporal freedom protection developed by the FCC be upheld. The plaintiffs argue that the current climate protection program is insufficient to meet Germany’s climate mitigation goals. In particular, they argue that the mitigation gap existing until 2030, with over 200 million tons of CO2 equivalents, probably even up to 331 million tons of CO2 equivalents, is so large that it can only be closed with significant infringements on the civil liberties of citizens.
The main aim of the constitutional complaint is for the federal government to immediately adopt a climate protection program that formulates sufficiently concrete climate protection measures based on a consistent data foundation, ensuring compliance with the statutory emission reduction path of Germany’s Climate Protection Act. All other courses of action, the core argument goes, are unconstitutional. Steinmetz, et al. v. Germany II (Federal Constitutional Court, Germany)
South Korea: Constitutional Cases Questioning NDCs Filed by Korean Nationals
In July 2023, 51 Korean nationals filed a constitutional claim against the South Korean Government for failing to provide constitutionally required protection of the fundamental rights from the threat of climate change by establishing an inadequate implementation plan for the 2030 NDC, the 1st Carbon Neutrality Plan (“Plan”). The claimed rights include right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment, State’s obligation to provide its people from disasters, and State’s obligation to protect the fundamental rights of the people.
The plaintiffs argue the Plan fails to meet the required 40% reduction because the Plan is measuring the reduction rate from gross emissions of the reference year 2018 and net emissions of the target year 2030 and only reduces 29.6% of the gross emissions when international credits and CCUS are excluded. The plaintiffs further argue that the reduction pathway presented in the Plan will deplete South Korea’s per-capita-based carbon budget before 2030 for both 1.5 and 1.7 degrees, and that the Plan has allocated undue burden in the later years of the decade. The plaintiffs claim that the Plan fails to meet the constitutional obligation of the state to provide protection of the fundamental rights.
On February 19, 2024, the Court merged the case with other constitutional cases challenging the same NDC (Byung-In Kim et al. v. South Korea, Woodpecker et al. v. South Korea). The Court also set a public hearing for the case on April 23, 2024. (Min-A Park v. South Korea, Constitutional Court, South Korea)
Chile: Plaintiffs Challenge Environmental Authorization of Mining Project Due to Impact on Glaciers
On January 17, 2024, the petitioners, in accordance with Article 53 of Law No. 19,880, filed an administrative invalidation claim against Resolution Exempt No. 202399101873, dated November 8, 2023 (R.E. 202399101873/2023), issued by the Executive Director of the Environmental Assessment Service (SEA), in her capacity as Secretary of the Committee of Ministers, for having deemed the Environmental Impact Study of the “Los Bronces Integrado” mining project environmentally favorable. The project, intended for the extraction of copper and molybdenum and located in the Metropolitan Region of Santiago, 65 kilometers from the city of Santiago, is challenged due to alleged illegalities in the resolution.
The contested resolution seeks to continue the exploitation of the “Los Bronces Integrados” mining project, owned by Anglo American S.A., which was approved in different resolutions in 2007 and 2015. Afterward, the company requested new permission to optimize and adapt the original exploitation plan. On April 22, 2022, the SEA resolved that the project holder did not provide sufficient information to rule out the generation of health risks for the population, deciding to unfavorably qualify the project because it did not adequately determine the area of influence of the air quality component of the project, nor did it provide enough information to rule out health risks to the population, according to Articles 11(a) and 16(4) of Law No. 19,300, and Articles 2(a), 5, 18(d), and 62 of the SEIA Regulations.
Against the negative resolution, nine administrative appeal claims were filed, and the project proponent submitted additional background information. On April 14, 2023, the claimants opposing the project also provided further background information, which, according to them, was not considered by the administrative authority and was violating their rights. It is explained that on November 8, 2023, the Executive Director of the Environmental Assessment Service, acting as the secretary of the Committee of Ministers, decided to reject the appeal claims filed by the non-proponents of the project and instead to accept the appeal claim filed on behalf of the project’s proponent, thereby qualifying the “LOS BRONCES INTEGRADO” project environmentally favorable.
The claimants allege that Resolution Exempt No. 202399101873, dated November 8, 2023 (R.E. 202399101873/2023), which favorably qualified the project, fails to fulfill Chile’s climate obligations and human rights commitments, including the lack of consideration of the climate factor in the Environmental Impact Assessment. They add that the resolution that qualifies the project as environmentally favorable is illegal because the project poses a serious threat to the nearby glaciers in its area of influence, will increase the water scarcity already affecting the Metropolitan and Valparaiso Regions, will increase atmospheric pollution and harm the health of the population, generating an atmospheric catastrophe and severe damage to ecosystems. They argue that the project threatens serious human rights violations, such as the right to health, the right to live in a healthy environment, the right to life, the right to food, and the right to water, and that the contested act violates the precautionary principle.
The claimants request that the SEA invalidate the resolution that environmentally qualified the project as favorable, arguing that it contradicts the law. Concurrently, while the invalidation request is being processed, they seek an interim provisional measure to immediately suspend the effects of the contested act or any other appropriate measure. Modatima et al v. Environmental Assessment Agency (SEA) (Servicio de Evaluación Ambiental, Región Metropolitana de Santiago, Chile)
France: Communities in Uganda File New Lawsuit Against Total Energies Seeking Compensation for Human Rights Violations
On June 27, 2023, 26 members of communities affected by the Tilenga and EACOP projects in Uganda, human rights defender Maxwell Atuhura and five associations - AFIEGO, Friends of the Earth France, NAPE/Friends of the Earth Uganda, Survie and TASHA Research Institute - have sued energy company Total over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project’s threats to human rights and the environment and claim compensation for these violations. This lawsuit follows a previous case dismissed (Friends of the Earth et al. v. Total), where plaintiffs claimed for an injunction. As the alleged damages have since occurred, the plaintiffs now claim compensation.
The plaintiffs claim that these shortcomings of the vigilance plan have caused damages to the rights of the members of the communities affected, and, in particular:
- People affected by the Tilenga and EACOP projects were deprived of the free use of their land even before receiving compensation, and this for more than three or four years, thus violating their property rights.
- This has led to the deprivation of their means of subsistence, resulting in severe food shortages and even famine, thus violating their right to adequate food.
- From 2022, land in some villages was affected by flooding caused by the construction of the Tilenga project’s processing plant (CPF).
- Only a minority of people were able to benefit from compensation in kind, and for the others financial compensation was largely insufficient.
- In many cases, the transfer of land to Total was the result of pressure and intimidation, and the consent of those affected was therefore vitiated.
- Several plaintiffs were threatened, harassed, and arrested simply because they dared to criticize the oil projects in Uganda and Tanzania and defend the rights of the affected communities.
Plaintiffs claim that Total has not identified the risks relating to these risks in its vigilance plan; failed to act even though it was in a position to identify these risks before they occurred, and when it had been alerted about their existence; and failed to implement corrective measures once the violations had occurred, even though it had been alerted about their existence.
The plaintiffs claim compensation for the aforementioned damages they have incurred because of the violation of the Law on the Duty of Vigilance. AFIEGO et al. v. Total (Paris Judicial Court, France)