August 2023 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #173:

Tenth Circuit Found that Bureau of Reclamation Adequately Responded to Concerns Regarding Future Climate Impacts in Review of Green River Basin Water Contract; Dissent Disagreed

In a split opinion, the Tenth Circuit Court of Appeals concluded that the Bureau of Reclamation (Reclamation) had taken a hard look at the impacts of a proposed water contract with the State of Utah that involved changing the point of diversion for water that Utah draws from the Green River Basin. Among the arguments rejected by the majority was a contention that Reclamation did not address scientific data and studies projecting that future climate warming was likely to leave the Colorado River system drier than in the past, increasing potential harms from the contract. Other federal agencies, including the U.S. Fish and Wildlife Service (FWS), had referenced in their comments on the environmental assessment three studies showing accelerating declines in river volumes in the future. Although the Tenth Circuit said that Reclamation’s response to these climate concerns “lacks clarity,” the appellate court found that the agency “sufficiently evaluated the minimal environmental effects of the proposed action.” The court said that “[w]hile Reclamation’s response to FWS’s comment could have been more robust, the record confirms that Reclamation adequately incorporated in its analysis the effects of a warming climate and the likelihood of changes in hydrology.” In the same vein, the Tenth Circuit also rejected an argument that Reclamation’s decision not to prepare an environmental impact statement (EIS) violated the National Environmental Policy Act in light of the other agencies’ comments, including comments criticizing Reclamation’s reliance on past hydrological data, which demonstrated a level of controversy that warranted an EIS. The dissenting judge disagreed with the majority’s conclusion that Reclamation had satisfied its duty to take a hard look at the effective of climate warming on the availability of water. The dissent found that Reclamation’s response to the FWS’s comment citing the three studies failed to respond to the actual concerns raised and failed to explain why the three studies were not relevant to assessing the contract’s impacts. The dissent also found that Reclamation failed to explain how the past data on which it relied “can serve as a surrogate for future drought scenarios.” Center for Biological Diversity v. U.S. Department of the Interior, No. 21-4098 (10th Cir. July 10, 2023)

DECISIONS AND SETTLEMENTS

D.C. Circuit Declined to Rehear Challenge to EPA Denial of Petition to Reconsider 2009 Endangerment Finding for Greenhouse Gases from Vehicles

The D.C. Circuit Court of Appeals denied petitions for panel rehearing and rehearing en banc of its May 2023 decision finding that Concerned Household Electricity Consumers Council and FAIR Energy Foundation did not have standing to challenge the denial of their petition requesting that the U.S. Environmental Protection Agency (EPA) reconsider the 2009 Clean Air Act endangerment finding for greenhouse gases from motor vehicles. Concerned Household Electricity Consumers Council v. EPA, No. 22-1139 (D.C. Cir. July 20, 2023)

Plaintiffs Voluntarily Dismissed Challenge to Washington Energy Code Restrictions on Natural Gas Appliances

On August 3, 2023, a coalition of plaintiffs that included homeowners, builders, suppliers, and utilities voluntarily dismissed their lawsuit challenging amendments to the Washington State Energy Code that banned or restricted the use of natural gas appliances in commercial and residential buildings. The plaintiffs said they were dismissing the case without prejudice in light of the defendants’ delay of the restrictions and initiation of a process to consider amendments in light of the Ninth Circuit’s decision in California Restaurant Association v. City of Berkeley that held that the federal Energy Policy and Conservation Act expressly preempted Berkeley’s ban on the installation of natural gas piping in newly constructed buildings. (Berkeley has filed a petition for rehearing en banc in that case.) On July 19, the court denied the plaintiffs’ motion for a preliminary injunction. Earthjustice, which represents climate and public health groups that intervened to defend the code amendments, said the judge had stated that “Washington is committed to addressing climate change and the court will stay out of its way” and had found that the plaintiffs’ alleged harms were “purely speculative.” Rivera v. Washington State Building Code Council, No. 1:23-cv-03070 (E.D. Wash. Aug. 3, 2023)

Iowa Federal Court Enjoined Enforcement of County’s Hazardous Pipeline Ordinance

The federal district court for the Southern District of Iowa granted a motion for a preliminary injunction preventing enforcement of an ordinance passed by the Shelby County Board of Supervisors to regulate hazardous liquid pipelines, including pipelines to transport captured carbon dioxide. The court concluded that a company that was developing a network of pipelines to transport carbon dioxide had standing but dismissed for lack of standing an individual plaintiff who resided and possessed land in another county and would not be subject to the ordinance’s permit regime or fees. The court found that the company was likely to succeed on the merits of its claims that state and federal law preempted provisions of the ordinance, that the company’s contention that it would experience unrecoverable costs established irreparable injury, and that the company would suffer more harm than the County defendants if a preliminary injunction were not granted. On July 21, 2023, the County filed a motion to certify the state preemption questions to the Iowa Supreme Court for a definitive ruling. The County also requested a temporary stay pending resolution of the certification motion. The court denied the motion. Couser v. Shelby County, No. 1:22-cv-00020 (S.D. Iowa July 10, 2023)

Colorado High Court Declined to Hear Case Seeking to Compel Regulations to Achieve Greenhouse Gas Reduction Goals

The Colorado Supreme Court denied environmental groups’ petition for writ of certiorari seeking review of an intermediate appellate court’s rejection of the groups’ claims that Colorado’s 2019 climate law required state agencies to adopt regulations sufficient to meet the law’s greenhouse gas emissions reduction goals. Environmental Defense Fund v. Colorado Department of Public Health & Environment, No. 22SC947 (Colo. July 17, 2023)

Restrictions on Connecticut Energy Suppliers’ Voluntary Renewable Product Survived Dormant Commerce Clause Challenge

The Connecticut Supreme Court rejected retail energy suppliers’ dormant Commerce Clause challenges to geographic and marketing restrictions imposed by the Connecticut Public Utilities Regulatory Authority (PURA) on “voluntary renewable offers” (VROs), which are products consisting of renewable energy credits (RECs) bundled with electric supply. Applying an analysis set forth by the Second Circuit in Allco Finance Ltd. v. Klee, the Connecticut Supreme Court concluded that the geographic restriction prohibiting VROs from containing RECs sourced outside designated geographic regions created a VRO product that could only be produced by renewable generators in the designated area to help advance Connecticut’s environmental goals, which included reducing local greenhouse gas emissions. Generators inside and outside the designated area therefore could not be considered similarly situated for purposes of a facial discrimination claim under the Commerce Clause. The court further found that the geographic restriction satisfied dormant Commerce Clause doctrine’s Pike balancing test because the restriction was not “clearly excessive in relation to the putative local benefits,” including local greenhouse gas reductions. The court also found that a marketing restriction requiring that suppliers inform consumers that a VRO backed by RECs is not itself renewable energy did not violate the dormant Commerce Clause. In addition, the court held that the suppliers could not bring free speech and Contract Clause claims that they did not raise before PURA. The court also rejected a claim that administrative proceedings violated the Uniform Administrative Procedure Act. Direct Energy Services, LLC v. Public Utilities Regulatory Authority, No. SC 20643 (Conn. July 5, 2023)

California Court Rejected Challenges to Analysis of Greenhouse Gas Impacts for Renewable Fuels Refinery Conversions, but Remanded for Redo of Other Analyses

A California Superior Court rejected most challenges to the California Environmental Quality Act (CEQA) reviews for the conversions of existing refineries in Martinez and Rodeo to renewable fuels refineries. In the case concerning the Martinez facility, the court found that a failure to include information about the mix of feedstocks did not negatively affect the analysis of environmental impacts, noting that the analysis of greenhouse gas emissions had assumed the maximum operating capacity of the natural gas-fired hydrogen plant that produces hydrogen to process the feedstocks into fuel, which was effectively a worst-case scenario. The court further found that the information about the greenhouse gas estimates being based on maximum operating capacity of the hydrogen plant was disclosed in the record. The court also found that the petitioners failed to show the project would have significant indirect land use impacts, including deforestation impacts. The court also rejected claims regarding the feedstock mix and indirect land use impacts in the case concerning the Rodeo facility. In both cases, however, the court found that discussion of odor mitigation measures was insufficient. In the Rodeo case, the court also found that the project description should have included changes to a rail terminal that increased its feedstock capacity and that an initial project to convert a hydrotreater to process renewable feedstocks had been improperly left out of the analysis of cumulative impacts. Communities for a Better Environment v. County of Contra Costa, No. N22-1091 (Cal. Super. Ct. July 21, 2023); Communities for a Better Environment v. County of Contra Costa, No. N22-1080 (Cal. Super. Ct. July 21, 2023)

Parties Stipulated to Dismissal of CEQA Lawsuit After Cancellation and Rescission of Oil Well Approvals Mooted Claims

A California Superior Court so-ordered a stipulation dismissing with prejudice a lawsuit alleging that the California Department of Conservation Geologic Energy Management Division violated CEQA when it approved 17 oil and gas wells in Los Angeles and Kern Counties. The petitioner had alleged that the agency relied on environmental reviews conducted in the 1990s that failed to account for new information about the impacts of oil drilling. The stipulated request for dismissal said the petition had been rendered moot by the rescission or cancellation of the approvals for the wells. The CEQA determinations for the wells also had been voided. Center for Biological Diversity v. California Geologic Energy Management Division, No. 22CV023134 (Cal. Super. Ct. July 14, 2023)

California Court’s Tentative Ruling Rejected CEQA Challenges to Addition of Natural Gas Engines to Power Plant

A California Superior Court issued a tentative ruling denying a petition seeking the withdrawal of City of Glendale approvals for installation of five new natural gas-fired engines at a power plant. The court rejected the petitioner’s assertion that the environmental impact report (EIR) misstated the municipal utility’s need to maintain a reserve for contingencies when the two largest sources of electricity were lost, which was cited as a justification for the project. In addition, the court found that the utility presented substantial evidence that it did not conceal any intention to sell excess energy. The court found that the use of hydrogen technology at the plant was too speculative to require an analysis of environmental effects and that the utility sufficiently analyzed environmental impacts in the City of Glendale and the surrounding region (rejecting a contention that the EIRs did not analyze the environmental effects on environmental justice communities located outside the City’s boundaries). Sierra Club v. City of Glendale, No. 22STCP00983 (Cal. Super. Ct. July 13, 2023)

NEW CASES, MOTIONS, AND OTHER FILINGS

Lawsuits Filed to Challenge New FERC Reviews and Authorizations for Texas LNG Projects

The City of Port Isabel, Texas, the Carrizo Comecrudo Tribe of Texas, and Sierra Club filed a petition for review in the D.C. Circuit Court of Appeals challenging a Federal Energy Regulatory Commission (FERC) order on remand from a 2021 D.C. Circuit decision that found that FERC failed to adequately analyze climate change and environmental justice impacts of a liquefied natural gas (LNG) terminal and related pipeline and other facilities on the Brownsville Ship Channel in Cameron County, Texas. FERC addressed these issues, considered modifications to the proposed project, and issued an amended order granting authorizations for the project. Regarding climate change, FERC disclosed “[f]or informational purposes,” FERC staff’s estimate of the social cost of greenhouse gases associated with emissions from construction and operation of the facilities, but FERC said that because there were no accepted tools or methods for determining significance of the emissions, it would not characterize the emissions as significant or insignificant. FERC also conducted a new analysis of environmental justice impacts and found that impacts on environmental justice populations would be disproportionately high and adverse but that only cumulative visual impacts would be significant. City of Port Isabel v. Federal Energy Regulatory Commission, No. 23-1174 (D.C. Cir., filed July 10, 2023)

The City of Port Isabel and Sierra Club filed a separate petition challenging FERC’s reauthorization on remand of a second LNG terminal on the Brownsville Ship Channel. FERC conducted similar climate change and environmental justice analyses on remand as for the other LNG terminal. City of Port Isabel v. Federal Energy Regulatory Commission, No. 23-1175 (D.C. Cir., filed July 10, 2023)

Oil and Gas Producer Filed Suit to Compel Decision on Applications for Permit to Drill on Federal Lands

A company that in March and April 2022 submitted two applications for permit to drill (APDs) for wells on lands under U.S. Bureau of Land Management (BLM) Colorado River Valley Field Office jurisdiction filed a lawsuit asking a federal court in Colorado to order BLM to immediately process the APDs. The company asserted that BLM’s refusal to process the APDs was contrary to BLM’s obligations under the Mineral Leasing Act. The company also contended that BLM’s reason for delaying the processing of the APDs—its desire to first conduct supplemental environmental analysis of the North Fork Mancos Master Development Plan (MDP)—was arbitrary and capricious. The complaint alleged that BLM was conducting the supplemental analysis after the federal district court for the District of Colorado remanded the MDP at BLM’s request in a case in which the plaintiffs alleged BLM’s consideration of climate change impacts of anticipated development under the MDP was inadequate. The company alleged that there was no legal requirement that the MDP had to be complete before operations could commence. The company also asserted a claim that BLM had unlawfully withheld action it was required to take. Gunnison Energy LLC v. Haaland, No. 1:23-cv-01696 (D. Colo., filed July 3, 2023)

Lawsuit Challenged New York Village’s Exclusion from List of “Disadvantaged Communities” Under State’s Climate Law

A New York town and village, along with town and village officials, filed a proceeding in New York state court challenging the exclusion of the village from the list of “disadvantaged communities” promulgated under New York’s Climate Leadership and Community Protection Act (CLCPA). The CLCPA directs that at least 35%, with a goal of 40%, of the benefits of investments in clean energy and energy efficiency go to disadvantaged communities. The petitioners contended that the exclusion of the village was arbitrary and capricious and unsupported by substantial evidence; that the New York State Department of Environmental Conservation had arbitrarily departed from its own designation of the village as a disadvantaged community for the purposes of other programs; and that the respondents failed to comply with the State Administrative Procedure Act, the New York Constitution, and the State Environmental Quality Review Act. Town of Palm Tree v. Climate Justice Working Group, No. 907000-23 (N.Y. Sup. Ct., filed July 26, 2023)

Trial Dates Set in Youth Plaintiffs’ Constitutional Climate Case Against Hawai‘i Department of Transportation

On August 3, 2023, youth plaintiffs’ attorneys announced that a Hawai‘i court had scheduled the trial in their climate change case against the Hawai‘i Department of Transportation for June 24-July 12, 2024. The plaintiffs allege that establishment, operation, and maintenance of Hawai‘i’s state transportation system violates the Hawai‘i Constitution’s public trust doctrine and infringes on the right provided by the Hawai‘i Constitution to a clean and healthful environment. Navahine F. v. Hawai‘i Department of Transportation, No. 1CCV-22-0000631 (Haw. Cir. Ct.)

Fossil Fuel Industry Defendants Sought Dismissal of Hoboken’s Climate Case

Fossil fuel industry defendants filed a motion in New Jersey state court to dismiss the City of Hoboken’s claims seeking to hold them liable for the effects of climate change. They first argued that the court should defer to State of New Jersey’s “nearly identical” suit and dismiss the City’s suit. Second, they argued that the City’s state law claims could not be constitutionally applied to out-of-state conduct such as global emissions of greenhouse gases. Third, they contended that the Clean Air Act preempted the City’s state law claims. Fourth, they argued that the claims raised nonjusticiable political questions. Fifth, they argued that claims based on an alleged “campaign of misinformation” (as opposed to “greenwashing” claims) were barred by the statute of limitations. They also argued that the City’s complaint failed to state a claim under New Jersey law. City of Hoboken v. Exxon Mobil Corp., No. HUD-L-3179-20 (N.J. Super. Ct. July 7, 2023)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

Court Dismissed French NGOs’ Claims Against Total Energy for Procedural Reasons Due to Lack of Standing and Lack of Strict Identity

In June 2019, French NGOs Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires, along with more than a dozen French local governments, announced the launch of a legal proceeding against the French oil company and carbon major Total by issuing a letter of formal notice (mise en demeure) to the company. Plaintiffs asserted that Total had three months to include adequate greenhouse gas emissions reduction targets in its latest “plan de vigilance” before they filed a lawsuit seeking a court order to force the company to comply with the law and the goals of the Paris Climate Agreement. In January 2020, the plaintiffs filed a complaint asking a Nanterre court to order Total to recognize the risks generated by its business activities and make its conduct consistent to limit global warming to 1.5°C. The complaint relies on the Law on the Duty of Vigilance and the duty of environmental vigilance arising out of the French Environmental Charter. The plaintiffs allege that Total did not provide enough detailed information in its vigilance plan for reducing its emissions, and the company is still not in line with international climate agreements.

Total did not respond to the merits and requested that the case be brought before the commercial court. In February 2021, the pre-trial judge rejected Total’s objection of incompetence and confirmed the jurisdiction of the judicial court. The judge considered that the NGOs have, as “non-traders,” a right of option, which they exercise at their convenience, between the judicial court and the commercial court. In November 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle the dispute. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage. In July 2022, the City of New York intervened in support of the plaintiffs in the current litigation through an intervention volontaire accessoire. The City of New York based its intervention on its significant interest in engaging—locally and globally—in efforts to mitigate climate change, also because of the severe damages and risks this phenomenon causes to the City.

On July 6, 2023, the pre-trial judge dismissed the preventive lawsuit for procedural reasons. The Paris first instance court refused to examine the impact of TotalEnergies’ activities on climate change. The judge deemed the lack of strict identity between the demands in the formal notice demands and summons as an inadmissibility ground. In addition, the judge believed the plaintiff had no standing concerning climate change since it is a worldwide issue. Notre Affaire à Tous and Others v. Total (Nanterre District Court, France)

 

DECISIONS AND SETTLEMENTS

New Zealand Court Ordered Revisions to Climate Change Amendment Regulations with New Zealand’s 2050 Targets and Emissions NDC

Lawyers for Climate Action NZ, a climate change NGO, challenged regulations promulgated by the Minister of Climate Change under New Zealand’s Climate Change Response Act 2002 (the Principal Act). These regulations—the Climate Change (Auction, Limits and Price Control for Units) Amendment Regulations 2022 (the Amendment Regulations)—set unit limits and price controls under New Zealand’s emissions trading scheme (ETS) for a five-year period (2023-2027). The applicant argued that these regulations were inconsistent with the Principal Act. The Principal Act requires the ETS unit limits and price control settings to be set taking into account New Zealand’s nationally determined contribution (NDC) under the Paris Agreement, emissions budgets, and statutory target, as well as a list of matters set out at section 30GC(5)-(6) of the Principal Act. The Amendment Regulations set the price control settings at levels far lower than those New Zealand’s own Climate Change Commission had recommended as sufficient to meet New Zealand’s emissions budget and target.

Before the matter went to a full merits hearing, the parties reached an agreement on error and relief. The Court ratified that agreement in this decision, finding the Amendment Regulations to be ultra vires the Principal Act, and requiring the Minister to reconsider the unit limit and price control settings (that is, minimum reserve prices, trigger prices for reserve sales, and the amount of reserve domestic units) for the 2023-2027 period. Although the Minister had originally recommended following the Commission’s advice, this recommendation was later revised following a directive from New Zealand’s Cabinet. The Cabinet had deviated from the Commission’s settings because of concerns that higher ETS settings could inflate fuel and energy bills. In the course of the litigation, however, the Minister acknowledged that he had erred. Specifically, he accepted that he lacked reasonable grounds to be satisfied that the Amended Regulations were in accordance with New Zealand’s 2050 target, emissions budgets, and NDC; alternatively, any deviation from these standards could not be justified by other matters prescribed in the Principal Act. Although he argued that such settings were not necessarily inconsistent with these standards, he accepted it was unreasonable to arrive at them based on the analysis he had carried out.

Following agreement between the parties, the Court ordered that the Amendment Regulations be reconsidered to ensure that, as per the Principal Act, they were: (1) in accordance with New Zealand’s 2050 target; and (2) strictly in accordance with New Zealand’s emissions budgets and NDC, or alternatively, in accordance with them, with discrepancies justified by matters set out in the Principal Act. The Minister must reconsider the settings by September 30, 2023. Lawyers for Climate Action NZ v Minister of Climate Change (High Court of New Zealand, New Zealand)

Chinese Court Dismissed Claims that Ningxia State Grid Violated Renewable Energy Law

In January 2018, the Friends of Nature Institute (FON) sued the State-owned enterprise, Ningxia State Grid, for its high abandonment rate of wind and solar power in violation of Articles 2 and 14 of the Renewable Energy Law. Article 2 provides a definition of “renewables,” and Article 14 requires that the grid companies “purchase all electricity generated from renewable energy sources” and “provide connection service.” In this case, Ningxia State Grid failed to purchase all wind and solar energy electricity. Based on that, FON claimed that Defendant should (a) purchase all electricity generated from renewable energy sources within its grid’s coverage; (b) invest 5% of its annual revenue in renewable energy development for five consecutive years; (c) disclose information related to clean energy consumption; (d) offer a public apology; and (e) bear all of the plaintiff’s litigation costs. All of the FON’s allegations were denied by Ningxia State Grid.

On April 4, 2023, the Court ruled that Ningxia State Grid did not violate Article 14 of the Renewable Energy Law and dismissed most of the FON’s claims. The Court first confirmed that the State Grid has the general obligation to protect the environment in accordance with the law, regulation, and business standards. However, the Court found that the defendant had met its specific obligation in purchasing wind and solar power. According to the Measures for the Guaranteed Full Purchase of Renewable Electric Power issued by the National Development and Reform Commission on March 24, 2016, grid companies must “purchase all electricity” under Article 14 only if the electricity consumption is safe. Ningxia State Grid has met its renewable energy consumption target, confirmed by The Reply Letter Related to FON v. Ningxia State Grid from the Development and Reform Commission of Ningxia Hui Autonomous Region on April 1, 2021. Meanwhile, the Court understood that the enterprise must continue to use coal-fired electricity to assure grid stability because the production of wind and photovoltaic energy is characterized by randomness, intermittency, and volatility. In addition, the Court observed that renewable resources are primarily concentrated in the country’s western region, geographically distant from the power load center situated in the eastern part. Consequently, achieving complete local utilization of these resources poses a significant challenge.

However, the Court also stressed that the State Grid still has a social responsibility for facilitating renewables and shall effectively implement its low-carbon transition plans under the scrutiny of responsible governmental agencies. Also, the Court affirmed FON’s active participation in environmental litigation. In light of the public interest character of the plaintiff’s lawsuit and the defendant’s social responsibility, the court ordered Ningxia State Grid to cover 350,000 RMB (49,000 USD) of the plaintiff’s litigation costs. The Friends of Nature Institute v. Ningxia State Grid (Yinchuan Intermediate People’