August 2022 Updates to the Climate Case Charts

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #161:

FEATURED CASE

D.C. Circuit Rejected Challenge to FERC’s Environmental Review of Pipeline Acquisition and Improvement Project

The D.C. Circuit Court of Appeals denied a petition for review challenging the Federal Energy Regulatory Commission’s (FERC’s) approval of the Adelphia Gateway Project, which involved acquisition of an existing pipeline system in Pennsylvania and Delaware and construction of short lateral pipeline segments and facilities to operate the pipeline. The court rejected contentions that FERC’s analysis of environmental impacts was deficient, including arguments related to the evaluation of the project’s impacts on greenhouse gas emissions and climate change. First, the court found that the petitioners had not identified evidence that would undermine FERC’s conclusion that upstream effects such as new natural gas wells to meet the pipeline’s increased capacity were not reasonably foreseeable. Second, the court found that FERC’s “reasoning was sound” when it concluded that downstream greenhouse gas emissions were not reasonably foreseeable because FERC could not identify the end users. The court cited its precedent that rejected the contention that downstream combustion emissions are reasonably foreseeable impacts of pipeline projects as a categorical matter. Third, the court found that the petitioners had failed to raise before FERC their argument that National Environmental Policy Act (NEPA) regulations required use of the Social Cost of Carbon. The court also rejected other arguments under NEPA, as well as claims regarding the market need for the project and regarding preemption of state and local action. Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, No. 20-1206 (D.C. Cir. Aug. 2, 2022)

 

DECISIONS AND SETTLEMENTS

Federal Court Ordered “Measured” Approach to Discovery in Providence Terminal Climate Adaptation Case

The federal district court for the District of Rhode Island issued an order setting forth the course of discovery in Conservation Law Foundation’s citizen suit alleging that Shell Oil Products US and affiliates failed to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for the impacts of climate change. The court noted that Conservation Law Foundation sought “far-reaching discovery”—including requests for documents concerning other Shell facilities and Shell’s knowledge of climate change—that was likely to be “very time consuming and expensive.” The defendants argued that they had agreed to provide some documents regarding corporate policies and that a deposition of the East Coast Lead Facility Engineer would be a more efficient discovery mechanism. The court concluded that “a more measured approach is warranted” before “potentially going down th[e] path” sought by the  plaintiffs. The court therefore directed the defendants to continue producing documents they had agreed to produce and to produce the engineer for a deposition regarding how the Providence Terminal manages precipitation and flooding risks and who makes decisions for the terminal. The court further directed that the parties should use the results of this discovery “to continue to confer in good faith regarding the scope of document production” and said that if disputes remained, they could refile their motion to compel and cross-motion for protective order. Conservation Law Foundation, Inc. v. Shell Oil Products US, No. 17-cv-396 (D.R.I. July 21, 2022)

Federal Court Approved Consent Decree with Deadlines for Setting Renewable Fuel Volumes for 2023

The federal district court for the District of Columbia entered a consent decree that resolves a biofuel trade association’s lawsuit against the U.S. Environmental Protection Agency (EPA) that alleged that EPA failed to perform its non-discretionary duty to promulgate renewable fuel volumes for calendar year 2023 under the renewable fuel standard program. The consent decree required EPA to issue a proposed rule by November 16, 2022 and to issue a final rule by June 14, 2023. (The parties had agreed to an extension of the deadlines in the proposed consent decree, which were September 16, 2022 for the proposed rule and April 28, 2023 for the final rule.) Growth Energy v. Regan, No. 1:22-cv-01191 (D.D.C. July 26, 2022)

Federal Court Approved Class Action Settlement in Case Alleging Misrepresentations of Coffee Pods’ Recyclability

The federal district court for the Northern District of California granted preliminary approval of a class action settlement in a lawsuit alleging that a company that sells single-use coffee pods misrepresented the recyclability of the product. The lawsuit asserted claims under California’s Unfair Competition Law and Consumers Legal Remedies Act, and the Massachusetts Consumer Protection Law, as well as breach of express warranties, misrepresentation, and unjust enrichment. Factual allegations included that plastic waste is thought to be “a significant potential, cause of global climate change” because it releases methane as it degrades. The settlement requires the defendant to make a $10 million payment for payments to class members, settlement administration expenses, incentive awards, and attorneys’ fees and costs. The defendant will also qualify claims of recyclability with the disclaimer “Check Locally – Not Recycled in Many Communities” wherever it represents that pods are recyclable, including on boxes and in advertising. Unclaimed settlement proceeds are to be paid to Ocean Conservancy and Consumer Reports, Inc. Smith v. Keurig Green Mountain, Inc., No. 4:18-cv-06690 (N.D. Cal. July 8, 2022)

Federal Court Vacated Trump-Era Endangered Species Act Regulations; Intervenors Appealed and Sought Stay

The federal district court for the Northern District of California vacated and remanded the 2019 revisions to the Endangered Species Act (ESA) regulations after the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) indicated they had substantial concerns with the amended regulations and said they intended to propose revisions. (The federal defendants had requested voluntary remand without vacatur.) The challenged regulations included a revised definition of “foreseeable future” that provided that “foreseeable future” extends “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” The complaint alleged that this requirement that threats be “likely” “increased the level of certainty required to protect species, contravening Congress’s intent to ‘give the benefit of the doubt to the species’” and that “[t]he consequence of imposing this increased certainty requirement is that species facing extinction from the impacts of climate change or other future events involving prediction and uncertainty will improperly be deprived of protection until after it is too late to prevent their extinction, violating the ESA’s command to use the best available science.” Three sets of intervenors appealed: private landowner intervenors, 13 states led by Alabama, and industry intervenors including the American Farm Bureau Federation, American Forest Resource Council, and American Petroleum Institute. Intervenors also moved for stay of the vacatur, arguing that the Supreme Court’s April 2022 order staying a district court’s vacatur of another regulation (concerning state water quality certifications under the Clean Water Act) called the district court’s authority to vacate the regulations with out reaching the merits into question. The plaintiffs, who had requested vacatur, asked the court to amend or alter the judgment to resolve on the merits the issue of whether the FWS and NMFS failed to comply with the National Environmental Policy Act (NEPA) when they promulgated the 2019 regulations. The plaintiffs said a ruling that the FWS and NMFS violated NEPA would make vacatur the standard remedy and ensure that the regulations were not reinstated, which would be an “unjust result.” Center for Biological Diversity v. Haaland, No. 4:19-cv-5206 (N.D. Cal. July 5, 2022); California v. Haaland, No. 4:19-cv-6013 (N.D. Cal. July 5, 2022); Animal Legal Defense Fund v. Haaland, No. 4:19-cv-06812 (N.D. Cal. July 5, 2022)

Federal Court Found Adequate Consideration of Climate Change Impacts in Forest Service Grazing Decisions

The federal district court for the District of Oregon rejected a challenge to decisions of the U.S. Forest Service that opened up additional acreage to livestock grazing on the Antelope Allotment in the Fremont-Winema National Forest in south-central Oregon. The court found the defendants had complied with NEPA, the Endangered Species Act, and the National Forest Management Act. Under NEPA and the ESA, the court rejected the argument that the Forest Service failed to take a hard look at how climate change would exacerbate grazing’s effects on Oregon spotted frogs and the claim that the U.S. Fish and Wildlife Service “virtually ignore[d]” climate change in its biological opinion. Concerned Friends of the Winema v. McKay, No. 1:19-cv-00516 (D. Or. July 5, 2022)

Massachusetts Federal Court Said Challenges to Vineyard Wind and South Fork Wind Projects Should Proceed in Separate Actions

On June 13, 2022, the federal district court for the District of Massachusetts granted a motion to sever a solar energy developer’s challenges to the South Fork Wind offshore wind turbine project from the developer’s challenge to the Vineyard Wind Project. The court found that each project involved “a wholly distinct set of federal approvals,” that the claims “hinge on highly fact specific questions as to the adequacy of two separate agency review processes, supported by two distinct administrative records,” and that “the projects themselves were of markedly different size and scope, to be  constructed in different locations, designed to provide electricity to homeowners in different states, and pursued by different companies.” The court also noted that the administrative record supporting the South Fork Wind project was not available when the federal defendants approved the Vineyard Wind Project. The court therefore concluded that the interests of justice and economy supported considering the South Fork Wind claims in a separate action. On June 30, the court dismissed without prejudice the solar developer’s claims under the Endangered Species Act and Outer Continental Shelf Lands Act because the developer had not provided the requisite notice prior to filing the claims. Allco Renewable Energy Ltd. v. Haaland, No. 1:21-cv-11171 (D. Mass.)

Washington Supreme Court Rejected Conservation Groups’ Challenge to State’s Management of Granted Public Lands

The Washington Supreme Court rejected conservation groups’ claims that the land management strategies of the Commissioner of Public Lands, Washington State Department of Natural Resources, and Board of Natural Resources (together, DNR) violated the Washington Constitution’s mandate that all public lands granted to State be “held in trust for all the people.” The case concerned lands granted to Washington by the federal Omnibus Enabling Act of 1889, which granted hundreds of thousands of acres to the State “for the support of common schools” and other State institutions, and lands granted to the State by individual counties to be held in trust for the benefit of those counties. The conservation groups argued that DNR’s strategies “prioritize maximizing revenue from timber harvests and undercut its obligation to manage granted lands for the broader public interest, which would be better served by prioritizing conservation and efforts to mitigate climate change, wildfires, and land erosion.” The Supreme Court found that the Washington Constitution’s mandate that granted lands be held in trust “does not preclude DNR from exercising its discretion to generate revenue from timber harvests on granted lands.” The court noted that “revenue from timber harvests helps boost local economies and maintain state institutions” and that because the general population of Washington “stands to gain” from this stability, DNR’s land management strategies did not violate the Washington Constitution. The court further found that that DNR’s strategies were not arbitrary and capricious. Conservation Northwest v. Commissioner of Public Lands, No. 99183-9 (Wash. July 21, 2022)

Pennsylvania Commonwealth Court Enjoined Implementation of RGGI Regulations

The Pennsylvania Commonwealth Court granted Pennsylvania State Senators’ (Senate) request for a preliminary injunction blocking the Pennsylvania Department of Environmental Protection from implementing and enforcing regulations providing for Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI). RGGI participating states establish carbon dioxide budgets for power plants, and covered sources must acquire allowances to cover their emissions. RGGI, Inc. conducts quarterly auctions for the allowances, and proceeds go to participating states. The court found that the Senate had demonstrated irreparable harm per se by raising a substantial legal question as to whether the regulations constituted a tax requiring legislative approval as opposed to a regulatory fee. The court further found that implementation and enforcement of invalid regulations would cause greater harm even if implementation of the regulations would result in “immediate reduction” of carbon dioxide emissions from covered sources. In addition, the court found that the preliminary injunction would restore the status quo and that the Senate had showed a clear right to relief by raising substantial legal questions about separation of powers issues related to the Regulatory Review Act, as well as concerning whether the allowance auction proceeds were an unconstitutional tax. The court found, however, that the Senate did not raise substantial legal questions regarding whether the regulations exceeded authority granted by the Air Pollution Control Act, whether the regulations constituted an interstate compact or agreement in violation of the Pennsylvania Constitution, or whether the administrative process through which the regulations were adopted was lawful. The Secretary appealed to the Pennsylvania Supreme Court, which temporarily resulted in a automatic stay of the preliminary injunction, but the Commonwealth Court vacated the stay on July 25, 2022. On June 13, three companies that operate natural gas-fired power plants in Pennsylvania—Calpine Corporation, Tenaska Westmoreland Management LLC, and Fairless Energy L.L.C.—filed a separate lawsuit challenging the RGGI regulations. Ziadeh v. Pennsylvania Legislative Reference Bureau, No. 41 M.D. 2022 (Pa. Commw. Ct. July 8, 2022); Bowfin KeyCon Holdings, LLC v. Pennsylvania Department of Environmental Protection, No. 247 MD 2022 (Pa. Commw. Ct. July 8, 2022); Calpine Corp. v. Pennsylvania Department of Environmental Protection, No. 357 MD 2022 (Pa. Commw. Ct., filed July 12, 2022)

Montana Supreme Court Declined to Step in to Dismiss State’s Request for Injunctive Relief in Youths’ Climate Case

The Montana Supreme Court denied the State of Montana’s petition for a writ of supervisory control dismissing youth plaintiffs’ request for injunctive relief in their climate change lawsuit alleging that the State Energy Policy and the “Climate Change Exception” to the Montana Environmental Policy Act violate the Montana Constitution. The State had contended in a motion filed in the district court on May 6, 2022 that the district court’s failure to dismiss the request for injunctive relief in its August 2021 order on the State’s motion to dismiss was inadvertent. The State filed its petition in the Supreme Court on June 10. Noting that supervisory control is an “extraordinary remedy,” the Supreme Court found that the State had attempted to “manufacture urgency or emergency factors” to justify the relief by waiting nine months to resolve claimed “confusion” regarding the order on the motion to dismiss and “then claiming a crisis exists” when the district court did not immediately rule on its motions. On June 15, the district court granted the State’s request for additional time to prepare for trial. Plaintiffs’ counsel said the trial date would be set at a scheduling conference in April 2023. State v. Montana First Judicial District Court, No. OP 22-0315 (Mont. June 14, 2022)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Second Circuit to Hear Oral Argument on September 23 in Appeal of Remand Order in Connecticut’s Climate Case

The Second Circuit scheduled oral argument for September 23, 2022 in Exxon Mobil Corporation’s (Exxon’s) appeal of the remand order in Connecticut’s lawsuit seeking to hold Exxon liable for violation of the Connecticut Unfair Trade Practices Act in connection with alleged deceptive acts to create uncertainty about climate science. Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir.)

Deadline for Certiorari Petition in Baltimore Climate Case Extended to October 14

On August 1, 2022, Chief Justice John Roberts granted energy companies’ application for an extension of time within which to file a petition for writ of certiorari for review of the Fourth Circuit’s decision affirming the remand order in Baltimore’s climate change lawsuit against the companies. The deadline for filing a petition for writ of certiorari is now October 14, 2022. BP p.l.c. v. Mayor & City Council of Baltimore, No. 22A84 (U.S. Aug. 1, 2022)

Center for Biological Diversity Challenged Renewable Fuel Standards for 2020, 2021, and 2022

Center for Biological Diversity filed a petition for review in the D.C. Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule establishing annual renewable fuel standards for 2020, 2021, and 2022. In a press release, Center for Biological Diversity said the lawsuit would challenge EPA’s failure to fully assess impacts to endangered species. The organization’s government affairs director called the renewable fuel program “a false solution to the climate crisis, delaying the urgent need to transition to electric vehicles.” Center for Biological Diversity v. EPA, No. 22-1164 (D.C. Cir., filed July 20, 2022)

Environmental Groups Challenged Clean Water Act Permit for LNG Facility in Louisiana

Healthy Gulf and Sierra Club filed a petition for review in the Fifth Circuit Court of Appeals challenging a Clean Water Act Section 404 permit issued by the U.S. Army Corps of Engineers for the Driftwood liquefied natural gas (LNG) export terminal in southwest Louisiana. In a press release announcing the lawsuit, the petitioners said the permit “falls short of legal requirements to avoid and compensate for impacts to wetlands,” which are “necessary natural storm barriers to hurricanes and help prevent flooding.” The press release also described the facility’s climate impact as “staggering,” stating that the annual lifecycle emissions of the produced LNG—from extraction to combustion—would equal the annual emissions of 42 coal plants. In addition, the press release cited environmental justice concerns.  Healthy Gulf v. U.S. Army Corps of Engineers, No. 22-60397 (5th Cir., filed July 19, 2022)

West Virginia Landowners’ Class Action Sought Damages for Failure to Plug Abandoned Gas Wells

Private landowners in West Virginia filed a class action complaint in the federal district court for the Northern District of West Virginia, contending that defendant companies’ failure to promptly plug abandoned gas wells caused injuries. The complaint alleged that one group of defendant companies (the “Diversified” companies) owned at least 2,168 abandoned wells, including more than 700 wells transferred by the second group of defendants (the “EQT” defendants) in 2018 and additional wells transferred by EQT in 2020. The complaint alleged that the “unlawful presence of these abandoned wells interferes with Plaintiffs’ use and enjoyment of their properties, lowers their property values, and poses health and environmental  hazards.” The complaint also alleged that the wells “leak significant amounts of methane—a potent greenhouse gas—into the atmosphere and contribute to climate change.” The plaintiffs alleged causes of action for trespass, nuisance, and negligence and for avoidance and recovery of fraudulent transfer. They sought damages as well as the creation of funds to be used to plug and decommission class members’ wells. McEvoy v. Diversified Energy Co., No. 5:22-cv-00171 (N.D. W. Va., filed July 8, 2022)

Lawsuit Sought Critical Habitat Designation for Endangered Bat Threatened by Rising Seas

Center for Biological Diversity and two other organizations filed a lawsuit to compel the U.S. Fish and Wildlife Service (FWS) to designate critical habitat for the endangered Florida bonneted bat. The plaintiffs alleged that the FWS had consistently failed to fulfill its statutory duty to designate critical habitat in accordance with statutory deadlines since the bat’s listing under the Endangered Species Act in 2013. The complaint alleged that the bat lives only in Florida and that it faces extinction “primarily from habitat destruction and degradation caused by urban sprawl and rising seas driven by global climate change.” Center for Biological Diversity v. Haaland, No. 2:22-cv-14244 (S.D. Fla., filed July 6, 2022)

Lawsuit Asserted that County’s Approval of Master Plan for Los Angeles River Violated CEQA

Los Angeles Waterkeeper and Center for Biological Diversity filed a lawsuit in California Superior Court asserting that Los Angeles County failed to comply with the California Environmental Quality Act (CEQA) when it approved the Los Angeles River Master Plan Update. The petition described the Master Plan as a “roadmap for future projects along the Los Angeles River” and alleged that the County failed to analyze the significant impacts the Master Plan would authorize. In particular, the petitioners alleged that the program environmental impact report (PEIR) failed to adequately analyze and mitigate impacts to hydrology and water quality, including because the PEIR did not analyze the impacts of climate change on the river’s hydrology. The petitioners contended that the PEIR “should have analyzed how future projects under the Master Plan could limit the hydrological and water quality impacts in a changing climate or adopt mitigation measures requiring actions or assessments to ensure climate resilience for every project.” The petitioners further alleged that the failure to consider climate change impacts on hydrology was inconsistent with the Los Angeles County General Plan Policy, which requires consideration of climate change adaptation strategies. In addition, the petitioners alleged that the PEIR failed to address the impacts of Master Plan activities on potable water scarcity associated with factors including climate change and that the PEIR did not adequately analyze the Master Plan’s consistency with plans including the Los Angeles County Community Climate Action Plan. Los Angeles Waterkeeper v. County of Los Angeles, No. __ (Cal. Super. Ct., filed July 13, 2022)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Challenge to UK’s Net Zero Strategy Upheld by High Court

In legal challenges brought by (1) Friends of the Earth (FoE), (2) ClientEarth and (3) Good Law Project (GLP) and Joanna Wheatley, the UK High Court ruled on July 18, 2022 that the Secretary of State for Business, Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) breached sections 13 and 14 of the Climate Change Act 2008 (CCA) when he adopted the Net Zero Strategy (NZS) on October 19, 2021. On April 7, 2022 the SoS conceded on FoE’s claims regarding the Heat and Buildings Strategy (HBS) (also adopted on October 19, 2021), confirming that he had breached his public sector equality duty and was undertaking an equality impact assessment of the HBS. (FoE had identified through an Environmental Information Request that he had not done one previously.) The substantive hearing for the three cases took place on June 8-9, 2022 before Mr. Justice Holgate at the High Court. Following this, a separate hearing was listed on July 15, 2022 in relation to the evidence on the distinction between the quantified impacts of the policies in the NZS, and the emissions reduction delivery pathway. The latter, which was based on modeling for the potential for each sector across the economy to decarbonize, was included in the NZS but the former was not. In the judgment handed down on July 18, 2022, Mr. Justice Holgate found that the NZS had been unlawfully adopted because: 1. The Minister had legally insufficient information before him to adopt the NZS (breach of section 13 of the CCA). For example, while he had been informed that the quantified policies in the NZS added up to approximately 95% of the emissions reductions needed to meet the sixth carbon budget (CB6; set under the CCA, and covering the period 2033-2037), he had not been provided with the breakdown of the contributions of the individual policies, and it had not been explained to him how the 5% shortfall would be made up. This meant that he was not able to properly understand the risk to the delivery of the policies in the NZS. Risk to delivery was an obviously material consideration. 2. The NZS itself lacked vital information, which meant that Parliament and the public were unable to properly scrutinize it (breach of section 14 of the CCA). For example, Parliament was not aware of the 5% shortfall for meeting CB6. The NZS should have included quantified policies (i.e., setting out what their individual emissions reductions were estimated to be), in order for Parliament to be able to scrutinize risk to delivery. The judgment placed “considerable weight” on the views of the Committee on Climate Change, the independent expert body under the CCA, which had advised the Government that the NZS should include quantified policies. GLP’s separate ground relating to the HRA was not successful; Mr. Justice Holgate concluded that it was too ambitious and did not accord with established principles. R (oao Friends of the Earth) v. Secretary of State for Business Energy and Industrial Strategy (United Kingdom, High Court)

 

DECISIONS AND SETTLEMENTS 

Pakistan’s Supreme Court Recognized Importance of Climate Change for Urban Planning

On October 5, 1995, the Capital Development Authority, which is responsible for planning decisions in Pakistan’s capital city of Islamabad, rescinded a previous decision to allow a number of residential properties to be converted to commercial use. It determined that the original decision would have been incompatible with the Master Plan of Islamabad. After rescinding the decision to allow commercial use of the properties, the Board issued notices to a number of property owners regarding their unsanctioned use of residential properties for commercial use. These notices were challenged by the petitioners, and on February 16, 2015 the Islamabad High Court dismissed the petitions. The case was subsequently appealed to the Supreme Court. On May 20, 2022, the Supreme Court of Pakistan issued a judgment in the case confirming the consolidated judgment of the Islamabad High Court. The Court found that the Capital Development Authority had been correct to determine that the original authorization for the conversion of the properties had been unlawful as it was not aligned with the Master Plan of Islamabad, and any deviation from that plan would have required approval by the Federal Government. The Court then went on to provide an explanation of the importance of orderly urban planning in the context of climate change. In particular the Court noted that future changes to existing urban plans would need to take climate change into account: “It is doubtful that our early town planners were driven by climate considerations. However, climate must, in the wake of climate change, form a basic determinant of urban planning and design. Climate-resilient development in cities of all sizes is crucial for improving the well-being of people and increasing the life opportunities of future generations. Any change in the Master Plan to an urban scheme without taking account of the climate factor would be detrimental.” The Court went on to note that climate change can impact a number of fundamental constitutional rights, including the fundamental rights to life, dignity, and property guaranteed under Articles 9, 14, 18, and 23 of the Constitution of the Islamic Republic of Pakistan, 1973. The Court stated that including adaptation and sustainability considerations in urban planning is essential for the protection of these rights and ordered that Pakistan’s urban planning authorities should take this into account in the future, stating: “The [Capital Development Authority] shall ensure to factor in adaptation, climate resiliency and sustainability into their plans, policies and decisions in order to protect [...] constitutional rights.” Raja Zahoor Ahmed v. Capital Development Authority (Pakistan, Supreme Court of Pakistan)

Challenge to Mexico’s Regulation of Climate Change Is Dismissed

On September 2, 2020, 15 young people from the State of Baja, California filed a federal lawsuit against the Mexican Government. According to the plaintiffs, the lawsuit was filed and admitted in a District Court in Administrative Matters and asked that the Mexican government issue regulations and public policies derived from the General Law on Climate Change and the Mexican Constitution. The General Law on Climate Change was passed in 2012 but, according to the plaintiffs, there are no regulations or public policies to implement the statute. On May 20, 2022, the District Court dismissed the case for lack of standing. The Court found that the plaintiffs did not prove that the lack of climate change regulations and public policies that derived from the General Law on Climate Change and the Mexican Constitution directly violated the plaintiffs’ human rights. Furthermore, the Court considered that the plaintiffs did not prove that they are in a situation that differentiates them from the rest of society, which is a procedural requirement of an amparo lawsuit (i.e., a constitutional protection lawsuit). Therefore, the case was dismissed. The decision was challenged by the plaintiffs on June 6, 2022. The appeal’s decision is pending. Youth v. Government of Mexico (Mexico, District Court in Administrative Matters)

Argentine Federal Court of Appeal Issued New Injunction on Offshore Oil Project

In lawsuits challenging the Argentina Ministry of Environment and Sustainable Development’s approval of an offshore fossil fuel exploration project, the Federal Court of Appeal (Federal Chamber of Mar del Plata) on June 3, 2022 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. It is also mandatory to include the participation of the National Parks Administration and to consider the results of the public consultative hearings, organized at both local (public hearing initiated on May 30, 2022) and national levels (public consultation which ended on May 19, 2022). Finally, the Court asked for the inclusion of the Ministry of Environment and Sustainable Development in the control and monitoring of compliance with the Environmental Impact Statement and its corresponding Environmental Management Plan (a task before assumed only by the Secretary of Energy). In this sense, exploration activities should stop (again) until all these requirements are met. Climate arguments were not developed by the Court of Appeal. Guillermo Tristan Montenegro v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata No. 2); Organización de Ambientalistas Organizados v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata No. 2); Greenpeace Argentina et. al., v. Argentina et. al. (Argentina, Federal Court of Mar del Plata No. 2) (cases are combined)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

New Application Brought at the European Court of Human Rights Challenging Several Countries’ Commitments Under the Energy Charter Treaty

Five young European citizens allege that their right to life, right to be free of inhuman or degrading treatment, right to respect for their private and family life, and right not to be subjected to discrimination have been adversely affected by extreme meteorological events which are directly linked to climate change and the consequences of which they have personally experienced. They contend, in particular, that the climate change that affects them is driven, to a large extent, by the fossil energy industry and that the 1994 Energy Charter Treaty (ECT), ratified by all 12 Respondent States, protects investors in that sector from regulatory changes and gives them access to exorbitant remedies through investor-State dispute settlement mechanisms, thereby inhibiting the Respondent States from taking immediate measures against climate change and making it impossible for them to attain goals enshrined in Article 2 of the 2015 Paris Agreement. Soubeste and Others v. Austria and 11 Other States (European Court of Human Rights)

First Case Against Factory Farming Brought at the European Court of Human Rights

On July 26, 2022, the NGO Humane Being filed an application to the European Court of Human Rights (ECHR) in the first case challenging factory farming in the UK. The application alleges that the UK Government is in breach of their obligations under Articles 2, 3, and 8 of the European Convention on Human Rights for failing to address the risks of the climate crisis, future pandemics, and antibiotic resistance created by factory farming. This application poses novel climate arguments focusing on the danger of agricultural methane emissions, and highlighting soy feed consumption in UK factory farming as a key driver of deforestation in the Amazon basin. The application also cites for the first time before the ECHR the ruling of the Brazilian Supreme Court in PSB et al v Brazil (on Climate Fund), which recognized the Paris Agreement as a human rights treaty. Given the urgency of the case and other pending climate cases before the ECHR, an application has been made for the case to be assessed on a priority basis. Humane Being v. the United Kingdom (European Court of Human Rights)

Plan B Challenges UK’s Commitments to Climate Mitigation at the European Court of Human Rights

On July 11, 2022, Plan B.Earth, Adetola Onamade, Jerry Amokwandoh, Marina Tricks, and Tim Crosland filed an application at the European Court of Human Rights against the United Kingdom with a request under Rule 41 (priority). The claimants allege that, in breach of its legal obligations arising under the Human Rights Act 1998 and the European Convention on Human Rights, the UK Government is systematically failing to take practical and effective measures to address the threat from man-made climate breakdown. Articles 2, 8, and 14 of the Convention impose on governments the positive obligation to take reasonable and proportionate steps to safeguard the right to life and to family life and to do so without discrimination. That means: (i) aligning emissions reductions to the 1.5˚C Paris objective; (ii) preparing for the impacts of climate change, so far as that is possible (including by providing the public with good information); (iii) aligning public and private finance flows to the 1.5˚C Paris objective; and (iv) making the polluter pay, with effective mechanisms to ensure compensation and reparation for the victims of climate change. Nevertheless, in March 2022, the UK Court of Appeal refused to hear the Claimant’s case on the basis that the Paris Agreement was irrelevant: “The fundamental difficulty which the Claimants face is that there is no authority from the European Court of Human Rights on which they can rely, citing the Paris Agreement as being relevant to the interpretation of the ECHR, Articles 2 and 8 [the rights to life and to family life].” It also ruled that the fact that the family life of the three young people bringing the claim is inextricably linked to communities on the frontline of the crisis in the Global South was irrelevant to determining the scope of their right to family life, despite the prohibition against discrimination in safeguarding Convention rights. Plan B.Earth and Others v United Kingdom (European Court of Human Rights)

New Challenges to Mexico’s New Energy Sector Program Based on Just Transition Claims

On June 22, 2022, Greenpeace Mexico and the Mexican Center for Environmental Law (CEMDA) filed two similar complaints in the District Court in Mexico City against Mexico's new Energy Sector Program for 2022-2036. The complaints allege that the Program violates human rights—including the right to a healthy environment—because: (i) the electricity policy reflected in the Program does not contemplate the development of a just energy transition strategy that generates wellbeing, reduces the negative social and environmental impacts of the sector, and respects and guarantees human rights; (ii) it delays for 13 years the fulfillment of clean energy generation goals and maintains the use of fuels with high social, environmental, and climate impact, such as gas, fuel oil, and coal, and (iii) finally, it perpetuates negative externalities that end up affecting populations living in highly marginalized conditions. It is also observed in the Program that the generation of electric energy with fossil fuels such as gas and fuel oil is favored and will continue to be favored; this will not allow Mexico to meet its clean energy goals. Greenpeace v. Ministry of Energy and Others (on the Energy Sector Program 2022) (Mexico, District Court in Administrative Matters); Mexican Center for Environmental Law (CEMDA) v. Ministry of Energy and Others (on the Energy Sector Program 2022) (Mexico, District Court in Administrative Matters)

New Loss and Damage Claim Filed in Switzerland on Behalf of Indonesia Citizens

Four inhabitants of the Indonesian island of Pari have sued Swiss-based major buildings materials company Holcim (from 2015 to 2021: Lafarge Holcim). In July 2022, they filed a request for conciliation before the Justice of the Peace of the Canton of Zug, Switzerland. This is a necessary step required by the Swiss Civil Procedure Code. The plaintiffs are supported by three NGOs: HEKS/EPER (Switzerland), the European Center for Constitutional and European Rights (ECCHR) and WALHI (Indonesia). The plaintiffs request: (i) proportional compensation for climate change-related damages on Pari; (ii) reduction of CO2 emissions by 43% by 2030, compared to 2019 levels (or according to findings of climate science in order to limit global warming to 1.5°C); and (iii) financial contribution to adaptation measures on Pari. Four Islanders of Pari v. Holcim (Switzerland, Zug)

Editor's note:

 

 

 

By
Margaret Barry, Maria Antonia Tigre
August 03, 2022