Climate Litigation Updates (April 10, 2025)

The Sabin Center for Climate Change Law publishes summaries of developments in climate-related litigation twice each month. We also add these developments 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 U.S. CLIMATE CASE CHART FOR UPDATE #194:

FEATURED CASE

D.C. Circuit Rejected Challenges to Adequacy of FERC’s Consideration of Louisiana Gas Pipelines’ Greenhouse Gas Emissions

The D.C. Circuit Court of Appeals rejected National Environmental Policy Act and Natural Gas Act (NGA) claims challenging Federal Energy Regulatory Commission (FERC) approval of two natural gas pipelines in Louisiana that terminate at the Driftwood Terminal, a natural gas terminal owned and operated by the pipeline builder and operator’s sister company. First, the D.C. Circuit found that FERC adequately explained why it could not reasonably predict the location and number of additional wells that the two pipelines would induce and therefore did not act arbitrarily and capriciously by refusing to consider the upstream greenhouse gas emissions from new natural gas production induced by the project. Second, the court found that FERC adequately explained that it lacked criteria for determining whether the project’s impacts on greenhouse gas emissions would be significant or insignificant and therefore properly declined to make such a determination. Third, the court found that the petitioners forfeited their argument that FERC improperly segmented its reviews of the pipelines and the Driftwood Terminal by failing to raise it in comments on the draft environmental impact statement. Fourth, the court rejected the petitioners’ challenges to FERC’s determination under the NGA that the project would serve a market need. Fifth, the court was not persuaded that FERC failed to consider the project’s impacts on greenhouse gas emissions when it balanced the projects benefits against its costs under the NGA. Healthy Gulf v. Federal Energy Regulatory Commission, No. 23-1226 (D.C. Cir. Mar. 28, 2025)

DECISIONS AND SETTLEMENTS

Fifth Circuit Said Corps of Engineers Consideration of Climate in Crude Oil Terminal Permit Review “Easily” Met NEPA Requirements

The Fifth Circuit Court of Appeals affirmed a district court’s determination that the U.S. Army Corps of Engineers conducted an adequate environmental review of a Clean Water Act permit to facilitate expansion of a crude oil export terminal at the Port of Corpus Christi in Texas. The Corps prepared an environmental assessment for the project and concluded it would not have a significant impact on the environment. The Fifth Circuit held that the Corps did not violate the National Environmental Policy Act (NEPA), the Clean Water Act, or the Administrative Procedure Act. Regarding the plaintiffs’ arguments that the Corps’ consideration of climate change was insufficient, the Fifth Circuit found that the Corps did not act arbitrarily or capriciously by limiting its analysis of climate change impacts to the effect of the dredging and filling activity authorized by the permit. The court noted that the Corps had found that the project would result in “a negligible release of greenhouse gases into the atmosphere” from impacts to aquatic resources and from operation of construction equipment. The Fifth Circuit said the Corps’ discussion “easily” met the Fifth Circuit’s standard for agency obligations to consider climate change under NEPA. The court declined to adopt any requirement adopted by other courts requiring consideration of downstream impacts such as “emissions from the end-use of petroleum products that may be exported from the expanded Terminal.” The Fifth Circuit further noted, in any event, that the plaintiffs had forfeited arguments related to impacts resulting from increased vessel traffic. Indigenous Peoples of the Coastal Bend v. U.S. Army Corps of Engineers, No. 23-40555 (5th Cir. Mar. 28, 2025)

Colorado Federal Court Vacated Corps of Engineers Permit for Dam Expansion

On April 3, 2025, the federal district court for the District of Colorado concluded that remand with vacatur was the appropriate remedy for the U.S. Army Corps of Engineers’ violations of the Clean Water Act, the National Environmental Policy Act, and the Administrative Procedure Act when it issued a permit allowing the City and County of Denver’s Board of Water Commissioners (Denver Water) to expand the Gross Dam and Reservoir. The court found that an “amalgamation of … serious defects,” including a failure to quantify climate change’s effects on precipitation, supported vacatur as a remedy. The court also rejected the respondents’ and intervenor’s arguments that vacatur would not impact further construction because construction could proceed under a Federal Energy Regulatory Commission license and that remand with vacatur would cause environmental harm because the Corps permit gave it authority to enforce protective conditions. The court temporarily enjoined construction on the dam pending a hearing on a permanent construction injunction tailored to the amount of additional construction necessary to make the existing dam safe. The court permanently enjoined enlargement of the Gross Reservoir. On April 6, 2025, the court denied the Denver Water’s emergency motion to stay pending appeal both the April 3 preliminary injunction order and the underlying October 2024 order but granted a 14-day temporary stay of the preliminary injunction to allow Denver Water an opportunity to seek a stay from the Tenth Circuit. Save the Colorado v. Semonite, No. 1:18-cv-03258 (D. Colo. Apr. 3, 2025)

Parties Agreed to Dismissal of “Moot” Challenge to Biden Administration LNG Export Pause

Louisiana, on behalf of other plaintiff states, and the U.S. Department of Energy and other federal defendants filed a joint stipulation of dismissal of the states’ lawsuit challenging the January 2024 federal pause on consideration of liquefied natural gas (LNG) export obligations. The stipulation noted that the Department of Energy had reversed the pause in response to President Trump’s “Unleashing American Energy” executive order and that “[b]ecause the policy the States were challenging has been reversed, this matter is moot.” Louisiana v. Biden, No. 2:24-cv-00406 (W.D. La. Apr. 1, 2025)

Federal Court Allowed Some Claims to Proceed in Challenge to Federal Approvals of Offshore Wind Project Off Rhode Island Coast

The federal district court for the District of Columbia granted in part and denied in part defendant-intervenor Revolution Wind, LLC’s motion to dismiss federal approvals for an offshore wind farm and wind export cable project off the coast of Rhode Island. The court concluded that subsets of plaintiffs had standing to proceed with claims under the National Environmental Policy Act (which included allegations of failure to take a hard look at climate change impacts), the National Historic Preservation Act, the Endangered Species Act, the Marine Mammal Protection Act, and the Clean Water Act. But the court found that the plaintiffs did not have standing and failed to state a claim under the Coastal Zone Management Act; failed to state a claim under the Migratory Bird Treaty Act; and did not have standing, failed to state a claim, and failed to provide sufficient notice under the Outer Continental Shelf Lands Act. Green Oceans v. U.S. Department of the Interior, No. 1:24-cv-00141 (D.D.C. Apr. 1, 2025) 

Maine Federal Court Upheld Federal Authorizations for Transmission Line

The federal district court for the District of Maine rejected environmental organizations’ challenges to U.S. Army Corps of Engineers and U.S. Department of Energy authorizations for an electrical power transmission corridor intended to transmit electric power from non-fossil fuel generating facilities in Canada to the Boston area. The court first found that the Corps’ issuance of a permit complied with the Clean Water Act. Among the arguments rejected by the court was a contention that the Corps incorrectly determined that the project was in the public’s interest because it would have a positive impact on greenhouse gas emissions. The court found that it was appropriate for the Corps to consider the transmission line’s impacts on energy use and greenhouse gas emissions in its public interest review under the Clean Water Act even if the Corps had refused to consider environmental impacts beyond the impact of dredging and filling activity in its National Environmental Policy Act review (NEPA). The court also found that the Corps had considered and rejected evidence that the project would result in higher greenhouse gas emissions. In addition, the court rejected claims under NEPA, including a contention that because of the debate regarding the project’s effect on greenhouse gas emissions, these effects were “highly controversial” and weighed in favor of preparing an environmental impact statement. Sierra Club v. U.S. Army Corps of Engineers, No. 2:20-cv-00396 (D. Me. Mar. 31, 2025)

Federal Court Declined to Stay Lawsuit Challenging Inflation Reduction Act Methane Waste Charge Rule

The federal district court for the Western District of Michigan allowed environmental groups to intervene as defendants in a lawsuit challenging the Inflation Reduction Act’s methane waste emissions charge for petroleum and natural gas systems. The court denied the federal defendants’ motion to stay the proceedings, finding that an indefinite pause was not warranted. The court directed the parties to be prepared to address at a June conference why the case was not rendered moot by the Congressional Review Act resolution signed by President Trump on March 14, 2025 that disapproved the U.S. Environmental Protection Agency rule implementing the waste charge. American Free Enterprise Chamber of Commerce v. Nishida, No. 1:25-cv-00067 (W.D. Mich. Mar. 27, 2025)

Federal Court Said Plaintiffs Lacked Standing for Preemption Challenge to Colorado and Denver Building Performance Standards

The federal district court for the District of Colorado concluded that four organizations with members that owned or managed buildings in Colorado lacked standing for their claim that the Energy Policy and Conservation Act (EPCA) preempted State of Colorado and City of Denver building performance standards. The plaintiffs alleged that the standards’ requirements for certain categories of large buildings to reduce energy use or greenhouse gas emissions “effectively require and force Covered Building owners to replace existing Covered Products (or in the context of new construction to choose Covered Products) that exceed current federal energy efficiency standards under the EPCA.” The court found that the plaintiff organizations failed to allege that their members would suffer a non-speculative injury caused by the challenged standards. The court cited an absence of “any specific allegations as to what provisions or compliance pathways of [the challenged standards] regulate Covered Products or any allegations as to what specific Covered Products must be replaced … in order to comply with” the challenged standards. The plaintiffs’ claims were dismissed without prejudice and the plaintiffs were allowed 21 days to file a motion for leave to amend their complaint. Colorado Apartment Association v. Ryan, No. 1:24-cv-01093 (D. Colo. Mar. 28, 2025) 

D.C. Federal Court Said Environmental Review for 2023 Gulf of Mexico Oil and Gas Lease Sale Failed to Take a Hard Look at Greenhouse Gas Emissions and Rice’s Whale Impacts

The federal district court for the District of Columbia ruled that the Bureau of Ocean Energy Management’s (BOEM’s) environmental review for Oil and Gas Lease Sale 259 in the Gulf of Mexico, which the Biden administration approved in February 2023, failed to take the hard look required by the National Environmental Policy Act (NEPA). As threshold matters, the court concluded that the environmental organizations had associational standing for the suit and that the lease sale was subject to NEPA even though the Inflation Reduction Act mandated that BOEM hold the lease sale. On the merits, the court found that BOEM’s baseline scenario for greenhouse gas emissions did not address information—such as the Inflation Reduction Act—that BOEM admitted could have “major” implications for energy markets. The court also said BOEM failed to satisfactorily explain why it could not address such information. The court rejected, however, the environmental organizations’ contentions that BOEM failed to address the lease sale’s compatibility with U.S. climate goals. The court found that BOEM “reasonably contextualized the magnitude of its emissions estimates,” including by comparing them to emissions targets under the Paris Agreement and the Biden administration’s net-zero by 2050 target. The court also found that BOEM failed to take a hard look at impacts to Rice’s whale but concluded that BOEM adequately considered environmental justice impacts, oil spill risks, and other leasing scenarios, including reduced leasing alternatives. The court said it would order additional briefing on the appropriate remedy for the NEPA violations. Healthy Gulf v. Burgum, No. 1:23-cv-00604 (D.D.C. Mar. 27, 2025)

Citing Need for Permanent Solution, Texas Federal Court Declined to Require Texas Prisons to Install Temporary Air Conditioning Despite Finding that Extreme Heat Conditions Likely Violated Eighth Amendment 

In a lawsuit in which an incarcerated individual and four organizations asserted that extreme heat conditions in Texas prisons violated the Eighth Amendment’s prohibition against cruel and unusual punishment, the federal district court for the Western District of Texas found that it was not in the parties’ or the public interest to issue a preliminary injunction ordering the Executive Director of the Texas Department of Criminal Justice (TDCJ) to install temporary air conditioning in every correctional facility because doing so would divert resources from the installation of permanent air conditioning. The court therefore denied the plaintiffs’ motion for a preliminary injunction despite finding that the plaintiffs met their burden of establishing a likelihood of success on the merits of their Eighth Amendment claim by showing that the heat posed an unreasonable risk of serious harm and that the Executive Director acted with deliberate indifference to the risk by implementing the only reasonable mitigation measure (air conditioning) “at a pace that disregards the substantial risk of harm the inmates face.” The court noted that approximately 96,500 of TDCJ’s 142,240 beds remained un-airconditioned, that outdoor heat indexes had been as high as 134°F in the past two summers, and that indoor temperatures were above 85°F in TDCJ facilities nearly every day from May 1, 2023 to September 30, 2023. The court stated that “[t]he heat will only get worse with climate change,” citing a declaration submitted by a climatologist at the National Center for Atmospheric Research, whose opinions the court found to be credible. The court also found that the plaintiffs had shown that TDCJ inmates housed in unair-conditioned prisons would experience irreparable harm absent court intervention. The court further found, however, that the analysis of the balance of the equities and the public interest presented “an unusual and highly frustrating challenge.” The court concluded that because installation of temporary air conditioning “would involve a different design and construction process than that of a permanent system, the considerable funds necessary to accomplish such temporary relief would be at the expense of the much more elaborate and expensive process of achieving permanent air conditioning,” which the court said was a shared goal of the plaintiffs and the Executive Director, as well as of the Texas Legislature, which was currently considering bills that would establish required temperature ranges for prisons. The court emphasized that it anticipated the plaintiffs would ultimately succeed on the merits and said that should the Executive Director fail to obtain sufficient funding and demonstrate to the court a plan for providing sufficient air conditioning in a timely manner, the court “reserves its right to revisit its analysis regarding the balance of equities and public interest.” Tiede v. Collier, No. 1:23-cv-01004 (W.D. Tex. Mar. 26, 2025)

Federal Court Remanded Tribes’ Climate Cases Against Fossil Fuel Companies to Washington State Court

The federal district court for the Western District of Washington granted the Makah Indian Tribe’s and Shoalwater Bay Indian Tribe’s motions to remand their climate change cases against fossil fuel companies to state court. The court rejected arguments that there was federal jurisdiction based on complete preemption of the Tribes’ public nuisance and failure to warn claims by federal common law governing possessory land claims based on aboriginal title. The court concluded that even if federal common law could completely preempt certain state-law claims, the Tribes’ claims would not be completely preempted because they were “not in fact reducible to injury to land.” The court also found that the Tribes’ state-law claims did not necessarily raise substantial and actually disputed federal issues about tribal land rights or about whether the Tribes might recover tribal healthcare costs ultimately borne by the federal government. The court further found that exercising jurisdiction over the Tribes’ state-law claims would disrupt the congressionally approved balance of federal and state judicial responsibilities. Makah Indian Tribe v. Exxon Mobil Corp., No. 2:24-cv-00157 (W.D. Wash. Mar. 26, 2025)

Federal Court Vacated Cancellation of Arctic National Wildlife Refuge Oil and Gas Leases

The federal district court for the District of Alaska vacated the Biden administration’s September 2023 cancellation of Alaska Industrial Development and Export Authority’s Arctic National Wildlife Refuge oil and gas leases. The Biden administration had canceled the leases—which were entered into at the end of the first Trump administration—based on the U.S. Department of the Interior’s conclusion that the leases were “unlawful in the inception” due to legal defects in the environmental review, including failure to adequately quantify downstream greenhouse gas emissions. In its decision vacating the cancellation, the court held that the Interior Department failed to follow the procedure mandated by the implementing regulations of the Naval Petroleum Reserves Production Act of 1976 for lease cancellations, which require a court order and which the 2017 Tax Cuts and Jobs Act made applicable to the ANWR Coastal Plain oil and gas program. Alaska Industrial Development & Export Authority v. U.S. Department of the Interior, No. 3:24-cv-00051 (D. Alaska Mar. 25, 2025)

D.C. Federal Court Allowed Plaintiffs to Proceed with Challenge to Annual Timber Targets for National Forests

In an oral ruling (reported by Law360), the federal district court for the District of Columbia denied the U.S. Department of Agriculture’s motion to partially dismiss a lawsuit alleging that the U.S. Forest Service failed to account for the aggregate carbon effects of actions taken each year to fulfill annual “timber targets.” The court concluded that the annual timber targets were reviewable final agency action under the Administrative Procedure Act. Chattooga Conservancy v. U.S. Department of Agriculture, No. 1:24-cv-00518 (D.D.C. Mar. 25, 2025)

California Appellate Court Said San Diego County Failed to Support Thresholds that Exempted Infill and Small Projects from CEQA Analyses

The California Court of Appeal reversed a trial court and found that two California Environmental Quality Act (CEQA) thresholds of significance adopted by San Diego County were not supported by the record. The thresholds exempted “infill” projects proposed within the County’s unincorporated villages and projects expected to generate no more than 110 automobile trips per day from the vehicles-miles-traveled (VMT) analysis used to determine the significance of transportation-related environmental effects such as greenhouse gas emissions in CEQA reviews. The appellate court agreed that the infill threshold was not supported by substantial evidence showing that infill development under local conditions would generally be VMT-insignificant. The court rejected the County’s contention that a California Air Pollution Control Officers’ Association publication on mitigating greenhouse gas emissions and VMT provided substantial evidence supporting the County’s infill threshold. The appellate court also found that the County made “no effort” to develop evidence that small projects would likely cause a less than significant transportation effect in San Diego but instead relied on a recommendation from the Governor’s Office of Planning and Research that was based on statewide data. Cleveland National Forest Foundation v. County of San Diego, No. D083555 (Cal. Ct. App. Mar. 27, 2025)

Otay Ranch Developers Agreed to Additional Greenhouse Gas and Wildfire Mitigation in Settlement with California Attorney General and Environmental Groups

On March 25, 2025, California Attorney General Rob Bonta announced a settlement that resolved the Attorney General’s and environmental organizations’ challenges to San Diego County’s approvals for the Otay Ranch Village 13 project. The settlement terms included enhanced mitigation for the project’s impacts on greenhouse gas emissions, wildfire risk and evacuation impacts, and biological resources impacts. The project will have a reduced footprint that will result in 292 acres of additional open space and an option for the developer to apply for development of 812 additional dwelling units within the reduced footprint. The additional greenhouse gas mitigation measures included full electrification of all buildings; installation of battery energy storage systems, solar photovoltaic systems, and electric vehicle charging outlets and stations; a prohibition on the use of gas-powered landscape maintenance equipment; and energy efficiency specifications. In addition, the settlement provided that the developer would fund a $15 million mitigation fund for projects to provide additional mitigation of greenhouse gases. The settlement also provided for the developer to fund enhancements to wildfire surveillance and to implement fire suppression and wildfire evacuation measures, as well as fire avoidance provisions in homeowner’s association documents and access to an online educational program about wildfire ignition prevention. Center for Biological Diversity v. County of San Diego, No. 37-2020-00046553 (Cal. Super. Ct. Mar. 25, 2025) 

In D.C. Consumer Protection Suit Against Fossil Fuel Companies, Court Upheld Constitutionality of Anti-SLAPP Act Exemption for D.C. Enforcement Actions 

In the District of Columbia’s lawsuit alleging that fossil fuel companies violated D.C.’s Consumer Protection Procedures Act by misleading consumers about their products’ role in causing climate change, the court held that an amendment exempting claims brought by the District from the District of Columbia Anti-SLAPP (Strategic Litigation Against Public Participation) Act was constitutional. The D.C. Attorney General proposed the amendment in 2021 to “clarify that government enforcement suits are not subject to” the Anti-SLAPP Act and referenced this action. The amendment was enacted through temporary and emergency laws beginning in November 2021 and was permanently codified in 2023. The court rejected the fossil fuel companies’ arguments that the exemption violated the First Amendment, was impermissibly retrospective, and was an impermissible bill of attainder that targeted the defendants by specifically attempting to insulate this lawsuit. Because the exemption was constitutional, the court denied as moot the companies’ special motions to dismiss pursuant to the Anti-SLAPP Act. District of Columbia v. Exxon Mobil Corp., No. 2020 CA 002892 B (D.C. Super. Ct. Mar. 25, 2025)

D.C. Court Allowed Plaintiff to Proceed with Greenwashing Claims About Evian Bottled Water

The District of Columbia Superior Court denied a motion to dismiss Plastic Pollution Coalition’s lawsuit alleging that the company that imports and sells evian bottled water in the District of Columbia violated the D.C. Consumer Protection Procedures Act by making false and misleading representations regarding the “sustainability” and “natural” quality of evian products. Alleged misrepresentations regarding “sustainability” included statements that the defendant used 100% renewable energy and references to a “carbon neutral” certification that the defendant was no longer seeking as of 2023, as well as other statements regarding use of recycled and recyclable materials. The court found that the complaint sufficiently pleaded that the defendant “made aspirational statements and is not taking steps of fulfilling those aspirations.” The court also rejected the defendant’s argument that federal law preempted claims regarding evian’s “natural spring water” label and found that claims regarding statements on labels raised questions of fact and could not be dismissed. Plastic Pollution Coalition v. Danone Waters of America, LLC, No. 2024-CAB-004562 (D.C. Super. Ct. Mar. 18, 2025)

NEW CASES, MOTIONS, AND OTHER FILINGS

Non-Utility Owners of Washington Power Plant Sought Supreme Court Review of Washington Law’s Allocation of Emissions Allowances

The owners of a natural gas power plant in Washington filed a petition for writ of certiorari asking the U.S. Supreme Court to consider their claim that Washington’s Climate Commitment Act violates the dormant Commerce Clause by distributing “no-cost allowances” for power plants owned by in-state utilities while requiring the owners of independent power plants to purchase allowances. The petition presented the questions of whether Supreme Court precedent “immunizes State laws affecting utilities from challenge under the dormant Commerce Clause, even when those laws affect competitive markets” and whether “alleging interstate and market-wide consequences of a state law, including a protectionist effect, adequately alleges a burden on interstate commerce, as five Justices would have held in National Pork Producers Council v. Ross, 598 U.S. 356 (2023).” Invenergy Thermal LLC v. Sixkiller, No. 24-1027 (U.S., filed Mar. 24, 2025)

SEC Withdrew from Defense of Climate Change Disclosure Rules

On March 27, 2025, the U.S. Securities and Exchange Commission (SEC) notified the Eighth Circuit Court of Appeals that it wished to withdraw its defense of the SEC’s climate change disclosure rules. The SEC’s letter stated that the court “would not need to reach the petitioners’ challenges based on the First Amendment or non-delegation doctrine if it sets the Rules aside on other grounds.” The SEC said it would yield any oral argument time back to the court or to other parties. On April 2, states that had already been granted leave to intervene as respondents in all but two of the consolidated cases challenging the SEC rules filed a motion for leave to intervene in the two remaining proceedings “to remove any doubt about their role as Intervenor-Respondents defending the challenged regulations.” On April 4, the intervenor states asked the Eighth Circuit to hold the cases in abeyance, arguing that the SEC’s “apparent change in position” on the rules provided good cause to suspend the proceedings so as to preserve judicial resources.  Iowa v. Securities & Exchange Commission, No. 24-1522 (8th Cir. Mar. 27, 2025)

Lawsuit Sought to Compel Updating of Development and Production Plans Prior to Resumption of Oil and Gas Activities

Center for Biological Diversity and Wishtoyo Foundation filed a lawsuit in the federal district court for the Central District of California alleging that the Bureau of Ocean Energy Management (BOEM) violated the Outer Continental Shelf Lands Act (OCSLA) and the Administrative Procedure Act when it failed to require revision of development and production plans (DPPs) for resumption of oil and gas activities at the Santa Ynez Unit in the Santa Barbara Channel. Production at the unit was shut down after an onshore pipeline ruptured in 2015; the complaint alleged that the new owner of the offshore platforms in the unit had informed investors that it planned to restart production in the second quarter of 2025. The plaintiffs alleged that OCSLA implementing regulations’ triggers for DPP revisions were met and that without revisions the owner “will operate under DPPs that do not reflect current science or the true scope of activities and emissions at the platforms” and that both BOEM and the public “will be left in the dark about the full scope of harms from restarting production at the Santa Ynez Unit and further environmental safeguards will go unaddressed.” The complaint’s allegations included that the DPPs, which were originally approved in the 1970s and 1980s “have not been meaningfully revised since then,” “are silent on the issue of greenhouse gas emissions” and that the onshore processing facilities for the Unit had been Santa Barbara County’s largest facility source of greenhouse gas emissions prior to the shutdown of the Unit after the pipeline spill. The plaintiffs asked the court to require revisions of the DPPs and to prohibit the defendants from authorizing new oil and gas drilling activity until the revisions were complete. Center for Biological Diversity v. Burgum, No. 2:25-cv-02840 (C.D. Cal., filed Apr. 2, 2025) 

Nonprofit Groups Challenged Termination of EPA Thriving Communities Grants

Three nonprofit organizations located in Baltimore, Minneapolis, and Seattle that had been named Regional Grantmakers and awarded grants under the U.S. Environmental Protection Agency’s (EPA’s) Thriving Communities Grantmaking Program filed a lawsuit in federal district court in Maryland challenging EPA’s termination of their initial grant awards. The complaint alleged that the Thriving Communities program was established by the Inflation Reduction Act, which appropriated $3 billion to EPA for “climate and environmental justice block grants” and mandated that the funds by used to support activities that monitor, prevent, and remediate pollution and mitigate climate risks in “disadvantaged communities.” The plaintiffs asserted that the termination of the initial grant awards constituted arbitrary and capricious agency action under the Administrative Procedure Act because EPA provided only “vague and baseless grounds” for the action: (1) that the grants were inconsistent with EPA’s newly adopted “Agency priority” to withdraw financial support from “organizations that promote or take part in … ‘DEI’ [or] ‘environmental justice’ initiatives”; (2) that the organizations’ programs were purportedly not “free from fraud, abuse, waste, or duplication”; and (3) that the programs “otherwise fail to serve the best interests of the United States.” The complaint also asserted that EPA acted in excess of its authority under the Clean Air Act as amended by Inflation Reduction Act; that EPA’s actions infringed the organizations’ rights under the First and Fifth Amendments; and that EPA failed to abide by federal grant regulations. Green & Healthy Homes Initiative, Inc. v. EPA, No. 1:25-cv-01096 (D. Md., filed Apr. 2, 2025)

Lawsuits Challenged Freeze and Termination of Clean Communities Investment Accelerator Awards

Two entities that were awarded funding under EPA’s Clean Communities Investment Accelerator (CCIA) program filed lawsuits in federal district court in the District of Columbia challenging EPA and Citibank actions freezing and terminating the funding. The CCIA is one of three programs through which EPA implemented the Inflation Reduction Act’s Greenhouse Gas Reduction Fund. Justice Climate Fund (JCF)—“a purpose-built, non-profit organization that was founded to apply for CCIA funding on behalf of a consortium of community lender representatives”—asserted that EPA’s actions violated the Administrative Procedure Act because the termination of the award was arbitrary and capricious and violated federal grant regulations and the Inflation Reduction Act. JCF asserted that EPA’s actions effectively suspending its award also violated the Administrative Procedure Act. In addition, JCF asserted violations of the Appropriations Clause and Due Process Clause. JCF also asserted breach of contract claims against Citibank. Inclusiv, Inc.—a nonprofit certified Community Development Financial Institution that works with credit unions—asserted that EPA’s actions violated the Administrative Procedure Act because they were contrary to the Inflation Reduction Act, the Congressional Budget and Impoundment Control Act, the Anti-Deficiency Act, and EPA regulations, and were arbitrary and capricious. Inclusiv also asserted that EPA violated separation of powers (the Legislative Vesting, Spending, Appropriations, and Take Care Clauses) and the Due Process Clause of the Fifth Amendment. In addition, Inclusiv asserted that EPA’s actions were ultra vires. Against Citibank, Inclusiv asserted breach of contract, conversion, and replevin claims. Justice Climate Fund v. EPA, No. 1:25-cv-00938 (D.D.C., filed Mar. 31, 2025); Inclusiv, Inc. v. EPA, No. 1:25-cv-00948 (D.D.C., filed Mar. 31, 2025)

Plaintiffs Alleged that Federal Law Preempted Maryland County’s Building Energy Performance Standards

A lawsuit filed in the federal district court for the District of Maryland asserted that the federal Energy Policy and Conservation Act (EPCA) preempted Montgomery County’s Building Energy Performance Standards (BEPS). The plaintiffs included the manager of a high-rise condominium in Chevy Chase, a residential cooperative housing corporation that owns and operates 1,071 residential apartment units and certain commercial spaces in Bethesda, Maryland Building Industry Association, Inc., National Association of Home Builders of the United States, Restaurant Law Center (“an independent public policy organization supporting the restaurant and food-service industry”), and Washington Gas Light Company (a gas utility). The plaintiffs alleged that the BEPS “fall within the heartland of EPCA’s express preemption provision because they regulate and restrict the energy use and efficiency of” many gas appliances “by restricting the amount of energy used by covered buildings. Elizabeth Condominium Association, Inc. v. Montgomery County, No. 8:25-cv-01019 (D. Md., filed Mar. 27, 2025)

Lawsuit Filed to Compel Finalization of Listing Rules for Climate Change-Threatened Salamanders

Center for Biological Diversity (CBD) filed a lawsuit in federal district court in the District of Columbia alleging that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act by failing to issue final rules on the organization’s petition to list the Kern Canyon slender salamander and relictual slender salamander by statutory deadlines. FWS proposed listing the Kern Canyon salamander as threatened and the relictual slender salamander as endangered in October 2022, 10 years after CBD’s petition, and CBD alleged that the rules should have been finalized by this point, even though FWS extended the comment period on the proposal by one year. CBD alleged that FWS had identified wildlife and climate change as the primary ongoing threats to both salamanders. The complaint asked the court to compel FWS to issue final rules by a date certain. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:25-cv-00903 (D.D.C., filed Mar. 27, 2025)

Logging Industry Plaintiffs Challenged Sustainability Strategy for Tongass National Forest

Alaska Forest Association, a timber company, and a timber sale operator sued the U.S. Department of Agriculture and U.S. Forest Service and the Agriculture Secretary and Forest Service Chief in federal district court in Alaska alleging that the 2021 adoption of the Southeast Alaska Sustainability Strategy violated the Administrative Procedure Act. They alleged that a 2016 management plan promulgated under the Tongass Timber Reform Act “promised” the harvest of old-growth timber from the Tongass National Forest and that the 2021 Strategy ended such harvest and shifted forest management resources “to support forest restoration, recreation and resilience, including for climate, wildlife habit[at] and watershed improvement” without going through proper rulemaking procedures. The press release announcing the Strategy had stated that “[l]arge old-growth trees in the Tongass are critical for carbon sequestration, addressing the climate crisis and maintaining the productivity and health of the region’s fisheries and fishing industry” and that the Strategy as “in line with the Biden-Harris Administration’s approach to climate-smart forest management and conservation nationally.” Alaska Forest Association v. U.S. Department of Agriculture, No. 3:25-cv-00046 (D. Alaska, filed Mar. 6, 2025)

Michigan Supreme Court Review Sought of Decision Upholding Public Service Commission Approval of Line 5 Replacement Project

Two applications were filed seeking leave to appeal the Michigan Court of Appeals decision affirming the Michigan Public Service Commission’s conditional approval of an application by Enbridge Energy Limited Partnership (Enbridge) to replace and relocate a portion of its Line 5 fuel pipeline to a tunnel beneath the Straits of Mackinac. One of the applications argued that the Court of Appeals had applied the wrong standard of review under the Michigan Environmental Protection Act (MEPA) and that the case warranted review to correct the improperly narrow scope of impacts considered in the MEPA review. The other application sought review of the question of whether the Court of Appeals erred in holding that the Commission did not have a duty to apply the common law public trust doctrine. Bay Mills Indian Community v. Michigan Public Service Commission, No. __ (Mich. Apr. 2, 2025); For Love of Water v. Michigan Public Service Commission, No. _ (Mich. Apr. 2, 2025)

Lawsuit Filed to Compel New York Environmental Agency to Issue Regulations Implementing State Climate Law

Four organizations filed a lawsuit in New York Supreme Court requesting that the court order the New York State Department of Environmental Conservation (DEC) to issue draft regulations to implement the Climate Leadership and Community Protection Act’s (CLCPA’s) greenhouse gas reduction requirements. The petitioners alleged that CLCPA mandated that DEC promulgate such regulations by January 1, 2024. The petitioners alleged that DEC staff had repeatedly assured the public that DEC and the New York State Energy Research and Development Authority would issue draft regulations in 2024 but that the State “inexplicably reversed course” in January 2025 and “abruptly halted its plan to release regulations that are the linchpin of the climate law and has provided no plan or timeline for their release.” They asserted that the failure to issue the regulations violated the CLCPA and the New York State Constitution’s guarantee of a ”right to clean air and water, and a healthful environment.” Citizen Action of New York v. New York State Department of Environmental Conservation, No. 903160-25 (N.Y. Sup. Ct., filed Mar. 31, 2025)

Petitioners Challenged New York City Zoning Overhaul

A lawsuit filed in New York Supreme Court alleged that New York City failed to comply with the State Environmental Quality Review Act and City Environmental Quality Review when it adopted a three-part citywide overhaul of its zoning resolution. The three parts were known as Carbon Neutrality, Economic Opportunity, and Housing Opportunity. The petitioners alleged that the respondents failed to take a hard look at significant negative environmental impacts, failed to propose reasonable alternatives, failed to propose reasonable mitigation measures, failed to assess cumulative impacts, and improperly segmented the review of the three parts of the rezoning. Old Town Civic Association v. City of New York, No. 85065/2025 (N.Y. Sup. Ct., filed Mar. 25, 2025) 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

HIGHLIGHTED CASE

Brazil: Court recognized climate damage due to deforestation

On September 15, 2021, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA) against Nilma Félix for deforesting an area of 135.80 hectares in 2018, in Boca do Acre, Amazonas. The MPF alleges that the defendant’s occupation of the land was unlawful because it was part of an Agro-Extractivist Settlement Project (PAE), owned and managed by the National Institute for Colonization and Agrarian Reform (INCRA) and occupied by traditional extractivist communities. This CPA is part of a set of 22 actions brought by the MPF as a result of the investigation carried out in Civil Inquiry No. 1.13.000.001719/2015-49 into illegal deforestation carried out inside the Antimary Agro-Extractivist Settlement Project (PAE) but against different defendants. The lawsuit is based, among other things, on Brazilian environmental law concerning the constitutional protection of the environment, the accusation of deforestation, propter rem civil liability for environmental damage, including climate damage, and collective moral damages. It also mentions the unauthorized emissions of Greenhouse Gases (GHG) caused by the illegal deforestation of the area, calculated at 77,583.75 tons of carbon dioxide and which are directly related to the Brazilian State’s departure from its climate goals, out of step with national and international commitments assumed by Brazil in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009) and in the Paris Agreement (promulgated by Federal Decree 9.073/2017). Among other requests: (i) reparation for the damage caused by illegal deforestation; (ii) payment of compensation corresponding to intermediate and residual material environmental damage; (iv) payment of compensation corresponding to climate damage; and (v) payment of compensation corresponding to collective moral damage.

The defendant was declared in default.

On September 20, 2024, the court ordered the defendant to (i) recompose the degraded area; (ii) pay compensation for material damages relating to interim and residual environmental damage, in an amount to be determined in the liquidation phase of the judgment; (iii) pay compensation for climate damage caused by deforestation, in the amount of R$2,133,553.12 and (iv) pay compensation for collective moral damages of R$2,000.00 per hectare deforested. The ruling recognized the existence of climate damage, unlawful conduct, and a causal link, even though the defendant was not responsible for the deforestation but benefited from the damage caused by a third party. To calculate the value of the climate damage, US$ 5.00 per ton of CO2e was adopted, per Ordinance 176/2023.

The sentence became final, and the Federal Public Prosecutor’s Office requested that it be enforced. Federal Public Prosecutor’s Office v. Nilma Félix (Deforestation and climate damage in the PAE Antimary) (Brazil, Amazonas Federal Court)

DECISIONS AND SETTLEMENTS

WTO Dispute Settlement Body: Panel found that Malaysia failed to establish a prima facie case of violation under the TBT Agreement or the GATT 1994 with respect to any Lithuanian measure(s) that fell within its terms of reference

In 2018, the Renewable Energy Directive Recast (RED II) came into force in the European Union. RED II introduces measures to phase out biofuels which pose high risk significant GHG emissions from indirect land-use change (ILUC), which is defined as occurring where “cultivation of crops for biofuels, bioliquids and biomass fuels displaces traditional production of crops for food and feed purposes.”

The European Commission’s Delegated Regulation 2019/807 (Delegated Regulation) introduced pursuant to RED II laid down the criteria for determining high-ILUC feedstock and certifying low ILUC-risk biofuels, bioliquids and biomass fuels. Based on the criteria set by the EU biofuel measures in determining high ILUC-risk fuels, only palm-oil-based biofuels, which are usually imported, will be phased out by 2030 (unless certified as low ILUC-risk). By contrast, biofuels based on oil crops, which are more likely to be produced domestically in EU, such as sunflower or rapeseed, are not subject to the phase out.

Following the introduction of RED II and the Delegated Resolution, France introduced a new law on fuel tax. The new fuel tax regime provides incentives for the consumption of petrol and diesel that contain certain crop-based biofuels to meet EU renewable energy targets. It provides expressly under the French Customs Code that palm-oil products are not considered as biofuels. Lithuania also amended its law on renewable energy, providing that by 2030, the share of fuels produced from feedstocks considered as high ILUC-risk feedstocks are to gradually decrease to nil for the calculation of Lithuania’s gross final consumption of energy from renewable sources.

On January 15, 2021, Malaysia brought a claim against the EU, France and Lithuania at the WTO. Malaysia claimed that certain measures imposed by virtue of RED II, including the criteria for determining the high ILUC-risk feedstock, and the sustainability and GHG emission savings criteria are discriminatory against palm-oil-based biofuels and are therefore inconsistent with various provisions under the TBT Agreement and GATT 1994. In respect of the measures imposed by Lithuania, Malaysia has contended that they are inconsistent the same provisions in GATT 1994 and the TBT Agreement. 

As for the measures implemented by France, Malaysia has contended that they are inconsistent with provisions in GATT 1994 and the SCM Agreement. 

The EU’s contention is that the measures are not in breach of its WTO obligations. EU has also submitted that the measures implemented are justified as they are intended to pursue EU’s legitimate policy objectives of climate change mitigation, environmental protection, preserving biodiversity, and ensuring energy security and sustainability.

The Dispute Settlement Body issued a report of findings which were adopted on April 26, 2024. The Panel found that Malaysia failed to establish a prima facie case of violation under the TBT Agreement or the GATT 1994 with respect to any Lithuanian measure(s) that fell within its terms of reference.

On May 24, 2024, the European Union notified the DSB of its intention to implement the recommendations and rulings in compliance with its WTO obligations, stating that it would require a reasonable period of time to do so. On January 21, 2025, the European Union and Malaysia informed the DSB that, under Article 21.3(b) of the DSU, they had agreed that the reasonable period of time for the European Union to implement the DSB’s recommendations and rulings would be 20 months and 6 days. As a result, the reasonable period of time was set to conclude on January 1, 2026. DS-600: European Union and Certain Member States – Certain Measures Concerning Palm Oil and Oil Palm Crop-Based Biofuels (World Trade Organization, WTO Dispute Settlement Body)

Australia: Tribunal upheld Comcare’s denial of compensation, stating the carbon tax removal did not cause his psychological conditions

The Administrative Appeals Tribunal (AATA) affirmed Comcare’s denial of two workers’ compensation claims made by SRGF. SRGF, a former employee of the Australian Public Service (APS), claimed that his employment contributed significantly to his development of psychological conditions, including anxiety, depression, and chronic fatigue. The first claim focused on his time at the Clean Energy Regulator from 2013 to 2015, where he argued that the stress and ethical shortcomings of the APS, particularly surrounding the implementation and subsequent removal of the ‘carbon tax,’ led to his initial psychological decline. He expressed disillusionment as staff continued to implement a policy they understood to be pointless following the change in government. The second claim related to his employment at the Department of Finance from 2017 to 2021, citing continual out-of-hours contact from SES personnel and interruptions to leave as significant contributing factors to a worsening of his mental state. Despite SRGF’s contentions and the evidence he presented, including biometric data and personal accounts, Senior Member O’Donovan found that SRGF had not satisfied the Tribunal that his employment contributed to his psychological decline to a significant degree. The Tribunal also found that SRGF did not meet the requirements for the deeming provisions under sections 7(2) and 7(3) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The decisions under review were affirmed. SRGF v Comcare (Compensation) (Australia, Administrative Appeals Tribunal) 

Australia: Court found that a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) regarding sequestered carbon was not allowable

The case involved an appeal by Academy Cleaning & Security Pty Ltd (the taxpayer) against the Deputy Commissioner of Taxation’s decision to disallow the taxpayer’s objection to an amended income tax assessment for the 2009 year. The central issue was whether a $420,000 outgoing claimed as a deduction by Academy under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) was allowable. This outgoing related to an agreement made on 29 June 2009 with BR Redd Ltd to purchase three contract lots of “sequestered carbon. Academy paid a non-refundable deposit of $63,000 and intended to pay the $357,000 balance in the future, but it was uncertain when the property would become deliverable. The taxpayer argued that the $420,000 was either incurred in gaining or producing its assessable income or necessarily incurred in carrying on its business for that purpose. The Commissioner contended that the outgoing was not incurred, was capital in nature, and was part of a scheme with the dominant purpose of obtaining a tax benefit, to which Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) applied. The court heard evidence about the context of the proposed Carbon Pollution Reduction Scheme, the Academy’s business of providing cleaning and security services, its director Mr. Hughes’ understanding of the importance of environmental sustainability in winning tenders, and expert evidence regarding the carbon credit market. Ultimately, Justice Rares dismissed Academy’s appeal, finding that the $357,000 balance was not definitively incurred in the 2009 year, that the $420,000 outgoing was not necessarily incurred in carrying on Academy’s business, and that the dominant purpose of entering into the agreement was to obtain a tax benefit; thus, Part IVA of the ITAA 1936 applied to disallow the deduction. Academy Cleaning & Security Pty Ltd v Deputy Commissioner of Taxation (Australia, Federal Court of Australia) 

Australia: Court found that Greenpeace did not infringe on AGL’s trademark when using a modified AGL logo to criticize its environmental record

In the case of AGL Energy Limited v Greenpeace Australia Pacific Limited FCA 625, AGL sued Greenpeace for copyright and trademark infringement due to Greenpeace’s use of a modified AGL logo in a campaign criticizing AGL’s environmental record. While Greenpeace conceded that AGL owned the copyright in its logo and that it was a valid registered trademark, Greenpeace argued that its use constituted fair dealing for criticism or review under s 41 of the Copyright Act 1968 (Cth) or parody or satire under s 41A of the same act, and that it did not use the modified logo as a trademark under s 120(1) of the Trade Marks Act 1995 (Cth). The court found that Greenpeace’s use of the modified AGL logo in online banner advertisements, street posters, and the parody website constituted fair dealing for the purpose of parody or satire under s 41A of the Copyright Act, and therefore did not infringe copyright in those instances. However, the court found copyright infringement relating to some social media posts, a protest poster image, and some photographs of placards as these uses were not considered parody, satire, criticism, or review. Ultimately, the court dismissed AGL’s trademark infringement claim because Greenpeace’s use of the modified logo was not considered “use as a trademark” to indicate a connection between Greenpeace’s services and the modified mark. The court also rejected AGL’s claim for additional damages. AGL Energy Limited v Greenpeace Australia Pacific Limited (Australia, Federal Court of Australia) 

Australia: Court confirms fines for Volkswagen for misleading conduct related to emissions

The Australian Competition and Consumer Commission (ACCC) filed a case against Volkswagen Aktiengesellschaft (VWAG) for misleading conduct related to the emission control systems of its diesel vehicles sold in Australia. VWAG acknowledged that its “Relevant Vehicles” contained “Two Mode Software” that caused the exhaust gas recirculation system to function differently during emissions testing compared to normal driving conditions, resulting in lower NOx emissions during testing. The ACCC initiated proceedings, and a settlement was proposed with VWAG, which consented to pay a pecuniary penalty of $75 million. However, Justice Foster of the Federal Court considered this penalty manifestly inadequate for both specific and general deterrence, citing the deliberate and dishonest nature of the conduct, the deception of regulatory authorities and consumers, and the pursuit of profit. Consequently, Justice Foster imposed a higher penalty of $125 million. VWAG appealed this decision, but the Full Court of the Federal Court dismissed the appeal, finding that the primary judge’s exercise of discretion was sound and the imposed penalty was not excessive. The Full Court upheld the principles guiding the determination of agreed penalties, emphasizing that the court must be convinced that the penalty is appropriate and is not bound by the parties’ agreement. 

Australia: Court dismissed judicial review of the Minister of Environment’s decision for failure to consider the impact of scope three GHG emissions on the Great Barrier Reef

The Federal Court of Australia (Griffiths J) dismissed an application for judicial review of a decision made by the Minister for the Environment to approve Adani Mining Pty Ltd’s construction of the Carmichael Coal Mine. The applicant, the Australian Conservation Foundation, argued that the Minister failed to comply with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by not considering the impact of scope three greenhouse gas emissions (emissions arising from burning rather than extracting coal) on the climate and the Great Barrier Reef. Specifically, it was contended that the Minister had: (a) failed to consider the precautionary principle; (b) failed to comply with the obligation to act consistently with Australia’s commitments under the World Heritage Convention; and (c) erred in characterizing scope three emissions as “not a direct consequence” of the proposed action. The Court rejected the applicant’s claims. First, there was no failure to apply the precautionary principle; the evidence did not establish a sufficiently clear link between approval and harm to the Great Barrier Reef to warrant its application. Second, there was no failure to act inconsistently with World Heritage Convention obligations given the discretion granted to States Parties in implementing those obligations. Third, the decision-maker was not incorrect in characterizing scope three emissions as an “indirect consequence.”

The Australian Conservation Foundation (ACF) appealed the decision of the primary judge, which dismissed their judicial review challenge. ACF’s main claim on appeal was that the primary judge mistakenly found that the Minister had considered the physical effects of climate change on the Great Barrier Reef as an “impact” of the action within the meaning of s 527E of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). ACF contended that the Minister had not viewed the physical effects as an impact under s 527E and therefore did not follow the proper assessment procedure under the Act. ACF argued that the Minister failed to consider the definition of the term “impact” in s 527E, thus not identifying the effects of overseas emissions as impacts. The Full Court dismissed this argument and concluded that the Minister had correctly fulfilled his statutory duty under the Act, considering the potential physical impacts of the relevant emissions. The information available to the Minister regarding overseas emissions was assessed, and the likely impact of such emissions upon the protected matters was taken into account. The appeal was dismissed, with costs to be decided at a later date.

On costs, the Court noted: ‘We recognize that issues concerning the Reef and climate change are matters of great importance to the Australian community. However, it does not follow that misguided litigation should be pursued at the expense of parties who properly understood the law’ at [6]. Order: Appellant pays each Respondent’s costs of the appeal. Australian Conservation Foundation Incorporated v Minister for the Environment (Australia, Federal Court of Australia)

WTO Dispute Settlement Body: Panel concludes that, to the extent that the measures at issue are inconsistent with the TBT Agreement and the GATT 1994, they have nullified or impaired benefits accruing to Indonesia under those agreements

In 2018, the Renewable Energy Directive Recast (RED II) came into force in the European Union. RED II introduces measures to phase out biofuels which pose high risk significant GHG emissions from indirect land-use change (ILUC), which is defined as occurring where “cultivation of crops for biofuels, bioliquids and biomass fuels displaces traditional production of crops for food and feed purposes.”

The European Commission’s Delegated Regulation 2019/807 introduced pursuant to RED II laid down the criteria for determining high-ILUC feedstock and certifying low ILUC-risk biofuels, bioliquids and biomass fuels. Based on the criteria set by the EU biofuel measures in determining high ILUC-risk fuels, only palm-oil-based biofuels, which are usually imported, will be phased out by 2030 (unless certified as low ILUC-risk). By contrast, biofuels based on oil crops, which are more likely to be produced domestically in EU, such as sunflower or rapeseed, are not subject to the phase out.

On December 9, 2019, Indonesia brought a claim against the EU at the WTO. Indonesia claimed that certain measures imposed by virtue of RED II, including the criteria for determining the high ILUC-risk feedstock, and the sustainability and GHG emission savings criteria are discriminatory against palm-oil-based biofuels and are therefore inconsistent with their obligations in violation of provisions of the TBT Agreement and GATT 1994.

The EU’s contention is that the measures are not in breach of its WTO obligations. EU has also submitted that the measures implemented are justified as they are intended to pursue EU’s legitimate policy objectives of climate change mitigation, environmental protection, preserving biodiversity, and ensuring energy security and sustainability.

On 18 March 2020, Indonesia requested the establishment of a panel to address a dispute. On 29 July 2020, the Dispute Settlement Body (DSB) established the panel, and several countries, including Argentina, Brazil, Canada, China, and others, reserved their third-party rights in the dispute.

On 2 November 2020, Indonesia requested that the panel’s composition be determined under Article 8.7 of the Dispute Settlement Understanding (DSU), and by 12 November 2020, Deputy Director-General Yonov Frederick Agah, acting in place of the Director-General, composed the panel.

On 10 January 2025, the panel’s final report was circulated to WTO Members, and on 24 February 2025, the DSB formally adopted the panel report.

The report highlights the EU’s non-compliance with various WTO rules, including technical regulations, trade restrictions, and discriminatory measures against Indonesian biofuels, along with the need for corrective actions. Panel’s conclusions and recommendations in the case concerning the European Union’s measures on palm oil and oil palm crop-based biofuels:

1. EU Measures at Issue:

The Panel finds that the 7% maximum share and the high ILUC-risk cap and phase-out are technical regulations within the meaning of Annex 1.1 to the TBT Agreement.

Indonesia has failed to establish that the 7% maximum share and the high ILUC-risk cap and phase-out are inconsistent with the obligation in Article 2.4 of the TBT Agreement to use relevant international standards as a basis for technical regulations.

Indonesia has failed to establish that the 7% maximum share and the high ILUC-risk cap and phase-out are inconsistent with the obligation in Article 2.2 of the TBT Agreement to ensure that technical regulations are not more trade-restrictive than necessary to fulfil a legitimate objective.

The European Union has administered the high ILUC-risk cap and phase-out inconsistently with Article 2.1 of the TBT Agreement by failing to conduct a timely review of the data used to determine which biofuels are high ILUC-risk, and because there are deficiencies in the design and implementation of the low ILUC-risk criteria, which results in arbitrary or unjustifiable discrimination between countries where the same conditions prevail.

Indonesia has not established that the European Union has acted inconsistently with Article 2.5 of the TBT Agreement by failing to explain the justification for preparing, adopting, or applying the high ILUC-risk cap and phase-out in terms of Articles 2.2 to 2.4 of the TBT Agreement.

Indonesia has failed to establish that the high ILUC-risk cap and phase-out are inconsistent with the obligation in Article 2.8 of the TBT Agreement to whenever appropriate specify technical regulations in terms of performance rather than design or descriptive characteristics.

Regarding the claims under Article 2.9 of the TBT Agreement, the European Union has acted inconsistently with:

1. Article 2.9.2 by failing to notify the proposed 7% maximum share and the proposed high ILUC-risk cap and phase-out measures; and
2. Article 2.9.4 by having failed to organize a commenting process in respect of the proposed 7% maximum share and the proposed high ILUC-risk cap and phase-out measures in accordance with the requirements of that provision.

The low ILUC-risk certification procedure is a ““conformity assessment procedure”“ within the meaning of Annex 1.3 to the TBT Agreement.

Indonesia has failed to establish that the low ILUC-risk certification procedure is inconsistent with the obligation in Article 5.1.1 of the TBT Agreement to ensure that conformity assessment procedures grant access for suppliers of like products originating in the territories of other Members under conditions no less favourable than those accorded to suppliers of like products of national origin or originating in any other country.

The low ILUC-risk certification procedure as set out in Article 6 of the Delegated Regulation is inconsistent with Article 5.1.2 of the TBT Agreement since deficiencies in the implementation of the low ILUC-risk procedure have created unnecessary obstacles to international trade.

Indonesia has failed to establish that the European Union has acted inconsistently with the obligation in Article 5.2.1 of the TBT Agreement to ensure that conformity assessment procedures are undertaken and completed as expeditiously as possible.

Regarding the claims under Article 5.6 of the TBT Agreement, the European Union has acted inconsistently with:

1. Article 5.6.1 by failing to publish a notice of the proposed low ILUC-risk certification procedure at an early appropriate stage in such a manner as to enable interested parties in Indonesia and other WTO Members to become acquainted with it;
2. Article 5.6.2 by failing to notify the proposed low ILUC-risk certification procedure; and
3. Article 5.6.4 by having failed to organize a commenting process in respect of the proposed low ILUC-risk certification procedure in accordance with the requirements of that provision.

It is unnecessary to rule on Indonesia’s alternative claim that the European Union acted inconsistently with the obligation in Article 5.8 of the TBT Agreement to ensure that conformity assessment procedures which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

Indonesia has failed to establish that the European Union has acted inconsistently with Articles 12.3 or 12.1 of the TBT Agreement.

Indonesia has not established that the high ILUC-risk cap and phase-out are inconsistent with the obligation in Article XI:1 of the GATT 1994 to not institute or maintain any prohibitions or restrictions on the importation of any product of the territory of another Member.

The high ILUC-risk cap and phase-out are inconsistent with Article III:4 of the GATT 1994 because they accord less favourable treatment to palm oil-based biofuel from Indonesia than that accorded to like products of EU origin.

The high ILUC-risk cap and phase-out are inconsistent with Article I:1 of the GATT 1994 because they do not accord an advantage to palm oil-based biofuel from Indonesia that is accorded to like products imported from third countries.

The European Union has acted inconsistently with Article X:3(a) of the GATT 1994 by administering the high ILUC-risk cap and phase-out in Article 26 of RED II in a manner that is not reasonable, to the extent that deficiencies in the design and implementation of the low ILUC-risk criteria and procedure do not provide for the elements needed for palm oil-based biofuel to be certified as low ILUC-risk;

with respect to Article XX of the GATT 1994:

1. The high ILUC-risk cap and phase-out is a measure relating to the conservation of exhaustible natural resources that is made effective in conjunction with restrictions on domestic production or consumption within the meaning of Article XX(g);
2. The high ILUC-risk cap and phase-out is a measure necessary to protect human, animal, or plant life or health within the meaning of Article XX(b);
3. It is unnecessary to rule on whether the high ILUC-risk cap and phase-out is a measure necessary to protect public morals under Article XX(a);
4. The high ILUC-risk cap and phase-out has been administered in a manner that constitutes arbitrary or unjustifiable discrimination between countries where the same conditions prevail because the European Union failed to conduct a timely review of the data used to determine which biofuels are high ILUC risk, and because there are deficiencies in the design and implementation of the low ILUC-risk criteria and certification procedure.

2. French TIRIB Measure:

By excluding palm oil-based biofuel from the group of qualifying biofuels, the French TIRIB measure is inconsistent with Article III:2, first sentence of the GATT 1994, because it results in the application of internal taxes to imported palm oil-based biofuel in excess of those applied to like domestic rapeseed and soybean oil-based biofuels.

By excluding palm oil-based biofuel from the group of qualifying biofuels, the French TIRIB measure is inconsistent with Article III:2, second sentence of the GATT 1994, because it results in dissimilar taxation between imported palm oil-based biofuel and the directly competitive or substitutable domestic rapeseed and soybean oil-based biofuels, and this dissimilar taxation is applied so as to afford protection to domestic production.

By excluding palm oil-based biofuel from the group of qualifying biofuels, the French TIRIB measure is inconsistent with Article I:1 of the GATT 1994, because it grants an advantage to imported rapeseed and soybean oil-based biofuels that is not immediately and unconditionally accorded to like palm oil-based biofuel imported from Indonesia;

with respect to Article XX of the GATT 1994:

1. The exclusion of palm oil-based biofuel from the group of qualifying biofuels for the purposes of the French TIRIB measure is a measure relating to the conservation of exhaustible natural resources that is made effective in conjunction with restrictions on domestic production or consumption within the meaning of Article XX(g);
2. The exclusion of palm oil-based biofuel from the group of qualifying biofuels for the purposes of the French TIRIB measure is a measure necessary to protect human, animal or plant life or health within the meaning of Article XX(b);
3. It is unnecessary to rule on whether the exclusion of palm oil-based biofuel from the group of qualifying biofuels for the purposes of the French TIRIB measure is a measure necessary to protect public morals under Article XX(a);
4. The exclusion of palm oil-based biofuel from the group of qualifying biofuels for the purposes of the French TIRIB measure has been administered in a manner that constitutes arbitrary or unjustifiable discrimination between countries where the same conditions prevail because the European Union has failed to conduct a timely review of the data used to determine which biofuels are high ILUC risk, and has failed to demonstrate the existence of any provisions or flexibilities for palm oil-based biofuels to be certified as low ILUC-risk.

Indonesia has failed to establish that the French TIRIB measure provides a prohibited subsidy within the meaning of Articles 3.1 and 3.2 of the SCM Agreement, or in the alternative a specific subsidy that causes adverse effects in the form of serious prejudice or a threat thereof under Articles 5(c), 6.3(a) and 6.3(c) of the SCM Agreement.

Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. The Panel concludes that, to the extent that the measures at issue are inconsistent with the TBT Agreement and the GATT 1994, they have nullified or impaired benefits accruing to Indonesia under those agreements. DS-593: European Union — Certain measures concerning palm oil and oil palm crop-based biofuels (World Trade Organization, WTO Dispute Settlement Body)

European Court of Human Rights: Court grants case priority status

After having exhausted all national remedies available, with the final decision from the Austrian Supreme Court communicated to the parties on October 12, 2020, on March 25, 2021, an Austrian citizen with a temperature-dependent form of multiple sclerosis (MS) filed a case against the Austrian government for violations of his human rights for failing to set effective climate measures to reduce GHG emission and ultimately contrast the effect of climate change. In the filing, the petitioner alleges facts, including that most MS patients suffer from Uhthoff’s syndrome, which is a temperature-dependent sensitivity. The sensitivity causes patients like the petitioner to lose more muscular control as temperatures go up.

The petitioner alleges that through inaction on the climate crisis, the Austrian government has violated his constitutional right to family and private life under Article 8 of the European Convention on Human Rights (ECHR) and has allowed foreseeable risks to his right to life under Article 8 and 13 of the ECHR. The petitioner also alleges that he has no effective remedy available in the Austrian legal system, which is a violation of his rights under Article 13 of the ECHR. This is because Austrian law does not provide an opportunity to challenge administrative omissions and legislative inaction on the climate crisis, and no administrative body or court is obliged to hear his claims on the merits. Despite the above, the petitioner did try all national court remedies before the Constitutional Court, but the case was dismissed.

In the Application, the claimant is also requesting that the case be treated as expedited proceedings under Rule 41, given its extreme urgency and the profound threats to the physical and psychological integrity of the petitioner.

On 18 June 2024, the Government of Austria was given notice of the application alongside questions from the Court to the Parties, some of them referencing the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland judgment. At the same time, the Court decided to grant the case priority status under Rule 41 of the Rules of the Court owing to the importance and urgency of the issues raised and the alleged deterioration of Mr Müllner’s health through global warming. Müllner v. Austria (International Courts & Tribunals, European Court of Human Rights)

European Court of Human Rights: Case related to European Charter Treaty withdrawn

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 fossil energy industry and that the 1994 Energy Charter Treaty (ECT), ratified by all twelve 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.

In a letter to the Court dated 9 July 2024, the applicants informed the Registry that they no longer intended to pursue their applications since most of the respondent States either had withdrawn or had declared their intention to withdraw from the Energy Charter Treaty and requested the Court to strike their applications out of its list of cases.

In a committee decision of 26 November 2024, the Court decided to join the applications due to the similar subject matter of the applications and strike the case out of its list, since it considered that it was no longer justified to continue the examination of the applications. Soubeste and Others v. Austria and 11 Others (International Courts & Tribunals, European Court of Human Rights)

WTO Dispute Settlement Body: Dispute Settlement Body (DSB) adopted the Appellate Body report and the Panel’s report as modified by the Appellate Body’s findings

In 2009, the Canadian province of Ontario approved a feed-in tariff (FIT) scheme under the Green Energy and Green Economy Act. Under this statute, electricity produced from renewable energy was awarded a guaranteed price per kilowatt hour (kWh) of electricity delivered into the Ontario electricity system under 20-year or 40-year contracts. Such scheme also included a mandatory percentage of local content requirements (LCRs), ranging from 25% to 60%. This entails that a certain amount of components had to be sourced from local enterprises.

Following the adoption of this legislation, on September 13, 2010, Japan filed a request for consultations, claiming that the measures implemented by the State of Ontario to promote electricity from renewable energy sources were inconsistent with Canada’s obligation under:

(a) Articles III:4 and III:5 of the GATT 1994, as they were laws, regulations or requirements affecting the internal sale, offering for sale, purchase, transportation, distribution, or use of equipment for renewable energy generation facilities that accord less favorable treatment to imported equipment than that accorded to like products originating in Ontario;

(b) Article 2.1 of the TRIMs Agreement, as they appeared to be trade-related investment measures that are inconsistent with the provisions of Article III of the GATT 1994; and

(c) Articles 3.1(b) and 3.2 of the SCM Agreement, as they appeared to be a subsidy granted under the measures listed above within the meaning of Article 1.1 of the SCM Agreement, because there would be a financial contribution or a form of income or price support, and a benefit would thereby be conferred.

The Canadian government defended the measures at stake, arguing that they were covered by the government procurement exception under Article III:8(a) GATT, as ‘the laws and requirements that create and implement the FIT Program are laws and requirements that govern the procurement of renewable electricity for the governmental purpose of securing electricity supply for Ontario consumers from clean sources, and not with a view to commercial resale’.

On December 19, 2012, the Panel issued its report on the case, upholding Japan’s claims under Article 2.1 of the TRIMs Agreement and Article III:4 of the GATT 1994. In particular, the Panel found that the incentives scheme represented ‘investment measures’ covered by Article 1 TRIMs Agreement, and they were ‘trade-related’ in the sense that the ‘Minimum Required Domestic Content Level’ included in Ontario’s scheme ‘by definition favors the use of domestic products over imported products, and therefore affects trade’. On these grounds, the Panel ruled that the FIT program, to the extent that it features a LCR that is inconsistent with Article III:4 GATT, also integrates a TRIM inconsistent with Article 2.1 TRIMs Agreement. Moreover, the Panel rejected Canada’s exception under Article III:8(a) GATT, according to which the discriminatory measures were justified as government procurement. Instead, the Panel found that renewably generated electricity was indeed subsidized by Ontario ‘with a view to commercial resale’, as it was commercialized through the exact ‘same channels’ as all other generating sources, so that it was ‘in competition with private-sector electricity retailers’. Nevertheless, the Panel rejected the complaint that had been raised under the SCM Agreement, finding that it was not possible to establish that the incentives provided by the State of Ontario constitute a ‘benefit’ within the meaning of Article 1.1(b) SCM Agreement. In the Panel’s reasoning, this is due to the fact that, in practice, renewable electricity would not be able to compete against electricity from conventional sources without the governmental incentives. Therefore, the Panel concluded that due to the lack of a comparable market standard, the program could not be legally characterized as a subsidy.

On May 6, 2013, the Appellate Body issued its report on the case, which provided a partially different reasoning on some of the issues, while not determining substantial changes in the outcome of the case. In particular, the Appellate Body’s analysis focused on the applicability of the government procurement exception under Article III:8(a) GATT and on the existence of a prohibited or actionable subsidy under the SCM Agreement. With regard to the former issue, the Appellate Body provided a different interpretation than the Panel, to the extent that it recognized that the product subject to the local content requirements was renewable energy generation equipment, yet the product purchased by the Government of Ontario under the FIT Program is electricity. On this basis, the Appellate Body found that the lack of a direct competitive relationship between the two products ‘electricity’ and ‘generation equipment’ was determinant to exclude the applicability of the exception under Article III:8(a) GATT. With regard to the existence of a subsidy covered by the SCM Agreement, the Appellate Body argued that the benefit analysis should have been conducted by comparing Ontario’s FIT scheme with previous renewable energy support policies adopted by the Ontario’s government, rather than comparing it with conventional energy sources. However, it concluded that, given the lack of factual findings in the Panel’s report, and due to the procedural restraints under Article 17.6 of the Dispute Settlement Understanding (DSU), it could not complete the analysis and determine ‘whether the challenged measures confer a benefit within the meaning of Article 1.1(b) of the SCM Agreement and whether they constitute a prohibited subsidy inconsistent with Articles 3.1(b) and Article 3.2 of the SCM Agreement’.

At its meeting on May 24, 2013, the Dispute Settlement Body (DSB) adopted the Appellate Body report and the Panel’s report as modified by the Appellate Body’s findings.

On June 20, 2013, Canada informed the DSB that it would require a reasonable period of time to implement the recommendations and rulings. On July 29, 2013, Canada and Japan agreed on a 10-month period for implementation, with the reasonable period of time expiring on March 24, 2014. This was later extended to June 5, 2014.

On 5 June 2014, Canada informed the DSB that the Government of Ontario had complied with the DSB recommendations and rulings by (i) no longer subjecting large renewable electricity procurements to domestic requirements; and (ii) significantly lowering the domestic content requirements for small and microFIT procurement of wind and solar electricity under the FIT Program. At the DSB meeting on June 18, 2014, both the European Union and Japan expressed concern over Canada’s lack of a status report and included this issue on the agenda for the next DSB meeting.

On March 24, 2014, Japan and Canada informed the DSB of Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding (DSU), indicating their mutual agreement on the implementation process. DS-412: Canada — Certain Measures Affecting the Renewable Energy Generation Sector (World Trade Organization, WTO Dispute Settlement Body)