December 2021 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 #153.

FEATURED CASE

Ninth Circuit Rejected NEPA Challenge to Air Cargo Facility at San Bernardino Airport; Dissent Said Project Disproportionately Impacts Communities of Color

The Ninth Circuit Court of Appeals denied two petitions seeking review of the Federal Aviation Administration’s (FAA’s) environmental review for the construction and operation of an air cargo facility at the San Bernardino International Airport in southern California. One petition was filed by Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, and two individuals. The other petition was filed by the State of California. The majority rejected the petitioners’ contentions that the FAA’s geographical boundaries for study areas resulted in a failure to “appropriately capture the true environmental impacts of the project” such as air quality and socioeconomic impacts. The majority also was not persuaded that the analysis of cumulative impacts was deficient, that the FAA’s calculations of truck trips associated with the project were erroneous, or that the FAA’s review under the National Environmental Policy Act (NEPA) was required to “meaningfully address” issued raised in the California Environmental Quality Act (CEQA) review, which California argued had found that the project could result in significant impacts on air quality, greenhouse gas emissions, and noise. With respect to greenhouse gases, the majority found that California had not refuted the NEPA environmental assessment’s rationale for finding no significant impact, which noted that the project’s greenhouse gas emissions would “comprise … less than 1 percent” of U.S. and global emissions. The majority said the rationale was not refuted by the CEQA analysis’s “cursory assumption” that a significant impact would result because the South Coast Air Quality Management District regional emissions thresholds would be exceeded, and that California had not articulated what impact might result from emissions exceeding this threshold. In addition, the Ninth Circuit rejected the petitioners’ assertion that the FAA failed to consider the project’s ability to meet state and federal air standards, including California’s greenhouse gas emission standards. The majority noted that the CEQA analysis had itself found no conflict with state plans, policies, or regulations aimed at reducing greenhouse gas emissions. Judge Rawlinson dissented, writing that the case “reeks of environmental racism,” and that the FAA’s determination that the project would have no significant environmental impact “does not pass muster under NEPA.” She wrote that “[o]ur children and grandchildren are looking to us to stem this tide of pollution that is contributing to increasingly disastrous climate change” and that “[t]his emissions-spewing facility that disproportionately impacts communities of color and was not properly vetted is a good place to start.” Center for Community Action v. Federal Aviation Administration, No. 20-70272 (9th Cir. Nov. 18, 2021)

 

DECISIONS AND SETTLEMENTS

D.C. Circuit Vacated Greenhouse Gas and Fuel Economy Standards for Truck Trailers

In a challenge to 2016 greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles brought by the Truck Trailer Manufacturers Association, the D.C. Circuit Court of Appeals held that neither the U.S. Environmental Protection Agency (EPA) nor the National Highway Traffic Safety Administration (NHTSA) had authority to adopt standards that apply to trailers. With respect to the greenhouse gas emissions standards, the court concluded that trailers are not “motor vehicles” under Section 202 of the Clean Air Act because trailers are not “self-propelled.” EPA therefore could not rely on Section 202(a)(1) to set emission standards for trailers and require trailer manufacturers to comply with the standards. With respect to the fuel efficiency standards, the court rejected NHTSA’s argument that the term “vehicles” in the Energy Independence and Security Act of 2007 provision authorizing NHTSA to set fuel economy standards for “commercial medium- and heavy-duty on-highway vehicles” could reasonably be interpreted to include trailers. The majority determined that “[b]ecause a trailer uses no fuel, it doesn’t have fuel economy” and that in the statutory context, “nothing is a vehicle unless it has fuel economy.” Judge Millett dissented from the majority’s conclusion that NHTSA lacked authority to issue fuel economy regulations that apply to commercial trailers. She wrote that NHTSA “acted well within its delegated regulatory authority in establishing fuel efficiency requirements for the trailer portion of tractor-trailers that regularly travel the Nation’s highways.” Truck Trailer Manufacturers Association v. EPA, No. 16-1430 (D.C. Cir. Nov. 12, 2021)

Environmental Groups Dropped Appeal of Decision that Rejected Greenhouse Gas/Climate Change Claims Regarding Utah Oil and Gas Leases

Environmental groups voluntarily dismissed their appeal of a December 2020 decision by a federal district court in Utah that rejected, in part, the groups’ challenge to U.S. Bureau of Land Management (BLM) decisions to issue 59 oil and gas leases in northeast Utah. The district court found that BLM adequately considered greenhouse gas emissions and climate change impacts but remanded for additional analysis of alternatives. The federal defendants previously withdrew their appeal of the district court’s decision. Rocky Mountain Wild v. Bernhardt, No. 21-4020 (10th Cir. Nov. 22, 2021)

Second Circuit Dismissed Challenges to Canceled Pipeline

The Second Circuit Court of Appeals granted the Federal Energy Regulatory Commission’s (FERC’s) motion to dismiss as moot petitions for review challenging the now-defunct Constitution Pipeline, which would have carried natural gas between Pennsylvania and New York. The developer canceled the project in 2020, and FERC’s authorization for the pipeline lapsed in December 2020. The lawsuits that the Second Circuit found to be moot challenged FERC’s certificate of public convenience and necessity for the project and also FERC’s later determination that New York waived its water quality certification authority under Section 401 of the Clean Water Act. Catskill Mountainkeeper, Inc. v. Federal Energy Regulatory Commission, Nos. 16-345 (2d Cir. Nov. 18, 2021)

Jordan Cove LNG Terminal Developers Notified FERC They Would Not Proceed with Project

On November 1, 2021, the D.C. Circuit Court of Appeals remanded the record to FERC for consideration of whether to impose a stay of a pipeline certification authorization related to the Jordan Cove liquefied natural gas export terminal in Oregon. The D.C. Circuit took this step after the project’s developers represented during oral argument that they were “reassessing” the project. On December 1, 2021, the developers notified FERC that they had decided not to move forward with the project due to concern “regarding their ability to obtain the necessary state permits.” They asked FERC to vacate its authorizations. Evans v. Federal Energy Regulatory Commission, No. 20-1161 (D.C. Cir. Nov. 1, 2021)

Environmental Group Dropped Appeal of District Court Decision Upholding NEPA Review for New Mexico Oil and Gas Leases

On November 2, 2021, the Tenth Circuit Court of Appeals granted WildEarth Guardians’ motion for voluntary dismissal of its appeal of a district court decision rejecting claims that BLM’s sale of oil and gas leases in southeastern New Mexico did not comply with NEPA and other federal statutes. The district court upheld, among other things, BLM’s analysis of cumulative climate change impacts and also found that use of the Social Cost of Carbon was not required. In June, the Tenth Circuit granted a motion by WildEarth Guardians and the federal defendants to abate the case to facilitate mediation of a potential resolution of the dispute. WildEarth Guardians v. Haaland, No. 20-2146 (10th Cir. Nov. 2, 2021)

Settlement Reached in Clean Air Act Citizen Suit Against Coal Mine Operators

Environmental groups and coal company defendants filed a joint motion to lodge a consent decree that would resolve the groups’ citizen suit alleging that the companies violated the Clean Air Act by operating the West Elk coal mine without a Title V operating permit. The consent decree would require the defendants to flare emissions from the mine’s ventilation boreholes in accordance with the Mine Safety and Health Administration Ventilation Plan for the mine until the Colorado Department of Public Health and Environment issues a final Title V permit. The defendants would also have to pay $135,000 to the plaintiffs’ counsel for the costs of litigation. The plaintiffs cited both volatile organic compound and methane emissions as concerns during the litigation. WildEarth Guardians v. Mountain Coal Co., No. 1:20-cv-1342 (D. Colo. Nov. 23, 2021)

Court Ordered Federal Defendants to Provide White House and Environmental Group Documents for Record in Challenge to Oil and Gas Leasing Pause

The federal district court for the Western District of Louisiana ordered federal defendants to complete the administrative record in a lawsuit brought by states challenging the Biden administration’s pause on new offshore and onshore oil and gas leasing. The court found that the scope of actions challenged by the states included all canceled or postponed lease sales that followed President Biden’s Executive Order 14008, including lease sales scheduled after the date of the complaint. The court ordered the federal defendants to provide all documents and materials directly or indirectly considered by agency decision-makers related to such lease sales, including documents and materials from the White House. In addition, the court required the defendants to provide documents and materials related to environmental groups’ involvement, including correspondence, text messages, phone calls, and other means of communication. The court said review of such items was “important … to determine whether there was improper influence, whether there was collusion, and/or whether the postponement or cancellation of these Lease Sales are pretextual.” The court concluded that ruling on the plaintiff states’ request for extra-record discovery would be premature until the administrative record was completed. The court gave the defendants 45 days to complete the record, and gave the states 30 days after the filing of the record to supplement or amend their motion for extra-record discovery. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La. Nov. 17, 2021)

Settlement Reached in Lawsuit Alleging Recycling Misrepresentations for Consumer Products

On November 15, 2021, The Last Beach Cleanup announced that it had reached a settlement with TerraCycle, Inc. and eight consumer product companies to resolve a lawsuit pending in the federal district court for the Northern District of California alleging that the companies’ recycling claims were unlawful and deceptive. Last Beach Cleanup alleged, among other things, that plastic pollution contributes to global climate change and that the defendants advertised and marketed their products with an “unqualified representation” that their difficult-to-recycle plastic products were recyclable with TerraCycle, which the complaint said “prides itself on working with companies to offer free programs for consumers to recycle products that established municipal recycling programs are not capable of recycling.” The complaint alleged that in practice “strict participation limits” prevented most consumers from participating in the free recycling programs, and also that it was “unclear” whether products accepted by the defendants were actually recycled. In the settlement agreement, Terracycle agreed to maintain records substantiating the validity of its recycling representations, including by developing and maintaining policies to ensure tracking of materials for recycling and by developing voluntary standards for third-party certifications and substantiations. TerraCycle also agreed not to license or permit its name to be used on labels or advertising of products without compliance with the substantiation requirements. In addition, TerraCycle may only license or permit its name to be used for products that are part of an “Unlimited” waste program for which no budget restrictions prevent TerraCycle from accepting all products. For products that are not part of an “Unlimited” program, TerraCycle must disclose the limits on the label or advertising. Last Beach Cleanup v. Terracycle, Inc., No. 4:21-cv-06086 (N.D. Cal. Nov. 10, 2021)

Wisconsin Federal Court Barred Work on Transmission Line

The federal district court for the Western District of Wisconsin issued a “narrowly tailored” preliminary injunction in a lawsuit challenging a 101-mile transmission line extending from Iowa to Wisconsin. The plaintiffs allege, among other things, that the Rural Utilities Service did not adequately consider greenhouse gas emissions and climate impacts in its environmental impact statement (EIS). The court found that the plaintiffs established at least some likelihood of success on the merits of their arguments that the Utility Regional General Permit (URGP)—the only contested permit under which construction could currently proceed—was invalid, that the EIS defined the project’s purpose and need too narrowly and therefore excluded alternatives such as solar energy and battery storage that would reduce the need for increased transfer capability, and that the consideration of cumulative impacts was inadequate. The court also found that the plaintiffs established “real and irreparable impacts,” that there would not be an adequate legal remedy to rectify those harms, and that the balance of equities favored an injunction. The court enjoined activities requiring permission under the URGP. The intervenor-defendants appealed the court’s decision. National Wildlife Refuge Association v. Rural Utilities Service, No. 3:21-cv-00096 (W.D. Wis. Nov. 1, 2021)

Fish and Wildlife Service Agreed to Prepare Recovery Plan for Canada Lynx

The federal district court for the District of Montana dismissed a case challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision to forgo recovery planning for the Canada lynx in the contiguous United States after the plaintiffs and the federal defendants agreed to a settlement pursuant to which the FWS will prepare a draft recovery plan by December 2023 and will finalize a final recovery plan within a year after publishing the draft plan. In their suit, the plaintiffs alleged that the December 2017 decision to forgo recovery planning based on the FWS’s determination that the lynx in the contiguous United States were “recovered” and no longer threatened arbitrary and capricious and not in accordance with law. They asserted that deeming a species to be “recovered” was not a valid reason to forgo recovery planning and also that the recovery finding was “premature” and conflicted with best available science, which the plaintiffs said revealed threats to lynx, including increasing threats from climate change. The plaintiffs also alleged that the FWS failed to evaluate whether the lynx were recovered and no longer threatened in a “significant portion” of the species’ range in the contiguous U.S. and that the FWS failed to properly identify and evaluate threats to the lynx within the “foreseeable future,” which the FWS identified as 2050 but which the plaintiffs alleged extends to at least 2100. Friends of the Wild Swan v. Haaland, No. 9:20-cv-00173 (D. Mont. Nov. 1, 2021)

Transportation Company Settled Clean Air Act Citizen Suit, Agreed to Spend $1.8 Million to Transition to Electric Vehicles

The federal district court for the District of Connecticut entered a consent decree resolving a Clean Air Act citizen suit brought by Conservation Law Foundation against a transportation company that owned, managed, and operated a fleet of over 1,000 vehicles, including school buses, motor coaches, trolleys, shuttles, vans, and cars. The suit alleged that the company's vehicles idled unlawfully for extended periods of time, in violation of the Clean Air Act and the Connecticut State Implementation Plan. The consent decree’s anti-idling requirements include requiring the company to review and update its anti-idling policy, to provide training to drivers, and to install automatic shut-off technology. The company must also spend $1.8 million over five years to advance its transition to zero emissions vehicles, including by purchasing at least five zero emissions buses. Conservation Law Foundation v. DATTCO, Inc., No. 3:20-cv-00234 (D. Conn. Oct. 14, 2021)

Washington Appellate Court Said Attorney General Documents Were Exempt from Disclosure

The Washington Court of Appeals affirmed the dismissal of Energy Policy Advocates’ complaint that sought to compel the Washington Office of the Attorney General to disclose certain correspondence of attorneys in the office that included the names or email addresses of “two ‘climate’ activists who have campaigned for attorneys general to pursue opponents of their preferred policies, and to assist a private tort litigation campaign.” The appellate court agreed with the trial court that the redacted documents at issue were work product and therefore exempt from disclosure and that the Attorney General’s Office had not waived work product protection for the redacted materials. Energy Policy Advocates v. Office of the Attorney General, No. 55187-0-II (Wash. Ct. App. Nov. 30, 2021)

New York Appellate Court Upheld Approval for Onshore Wind Energy Facility

The New York Appellate Division upheld a certificate of environmental compatibility and public need issued by the New York State Board on Electric Generation Siting and the Environment for a wind-powered electric generating facilities in several Western New York counties. The court rejected contentions that the Board did not give sufficient weight to community character, “failed to balance the severe adverse impact on that character against the project’s modest and theoretical benefits.” The court also rejected the contention that the Board’s conclusion that the project would have beneficial climate effects was based on speculation. In addition, the court ruled that the petitioners challenging the wind energy facility lacked standing to bring claims based on the First Amendment rights of Amish residents and rejected claims related to various local laws. Coalition of Concerned Citizens v. New York State Board on Electrical Generation Siting & the Environment, No. OP 20-01405 (N.Y. App. Div. Nov. 12, 2021)

 

NEW CASES, MOTION, AND OTHER DOCUMENTS

In Climate Cases Against Fossil Fuel Companies, Briefing Completed on Remand Order Appeals in Connecticut and Honolulu/Maui Cases

• On November 15, 2021, briefing was completed in ExxonMobil’s (Exxon’s) appeal of the remand order in the State of Connecticut’s case alleging that Exxon engaged in deceptive and unfair business practices in violation of the Connecticut Unfair Trade Practices Act by misleading and deceiving consumers “about the negative effects of its business practices on the climate.” Amicus briefs were filed in support of Connecticut by 13 other states and the District of Columbia, New York City, and Natural Resources Defense Council. Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir. Nov. 15, 2021)
• Briefing on the fossil fuel companies’ appeals of the remand orders in Honolulu’s and Maui County’s cases was completed on November 8. The Ninth Circuit announced that oral argument would be held on February 18, 2022 if the court decides to hear oral arguments. The companies also filed a motion for the Ninth Circuit to take judicial notice of two state court transcripts, which they said included statements by plaintiffs’ counsel that the theory of liability in the plaintiffs’ lawsuits encompassed increased combustion of fossil fuel products. The defendants said these statements had “a clear and ‘direct’ connection” to the jurisdictional questions at issue in these cases because the plaintiffs argued that the “allegedly exclusive focus on misrepresentation” as the basis for their theory of liability prevented federal-officer removal or removal based on the Outer Continental Shelf Lands Act. The plaintiffs responded that the Ninth Circuit could take judicial notice of the existence of the transcripts but could not “take the additional step of drawing inferences against Appellees as to disputed issues based on the transcripts’ contents.” The plaintiffs stated that they had never “conceded” that their claims arose from defendants’ products and not from their alleged misrepresentations. City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir.)

Other November developments in the climate cases against fossil fuel companies included the following:

• On November 15, 2021, fossil fuel company defendants-appellants filed their opening brief in their appeal of the remand order in the climate change lawsuit brought by the City of Hoboken, New Jersey. The defendants argued that Hoboken’s claims were based on interstate and international emissions and therefore arise under common law, that removal was also proper because Hoboken’s claims necessarily raised disputed and substantial federal issues, and that the district court had jurisdiction under the Outer Continental Shelf Lands Act or the federal-officer removal statute. Four amicus briefs were filed in support of the defendants by the U.S. Chamber of Commerce, 16 states led by Indiana, trade groups led by the National Association of Manufacturers, and two former chairmen of the Joint Chiefs of Staff, who argued that “important national and international policy issues” such as climate change should be addressed in federal courts. City of Hoboken v. Exxon Mobil Corp., No. 21-2728 (3d Cir. Nov. 15, 2021)
• On November 12, 2021, Vermont filed its opposition to fossil fuel companies’ motion to stay proceedings in the federal district court for the District of Vermont in the State’s consumer protection lawsuit alleging climate change-related deception. The companies had argued that the Second Circuit’s review of the remand order in Connecticut v. Exxon Mobil Corp. would “control, or at least inform,” the result in Vermont’s case. Vermont argued that the companies drew “a false equivalence” between Connecticut’s and Vermont’s claims because Vermont was not seeking monetary relief for climate change damages. In November, Vermont also filed its motion to remand to state court, with a memorandum of law to follow on or before December 17, 2021. Vermont v. Exxon Mobil Corp., No. 2:21-cv-00260 (D. Vt. Nov. 12, 2021)
• On November 12, 2021, the federal district court for the Southern District of New York stayed New York City’s consumer protection law climate change case against oil and gas companies and the American Petroleum Institute pending the Second Circuit’s decision in Connecticut v. Exxon Mobil Corp. The district court noted that the Second Circuit had stayed the remand order in Connecticut’s suit, which the court characterized as “a case similar to this action.” City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. Nov. 12, 2021)

D.C. Circuit Returned Challenge to Aircraft Greenhouse Gas Standards to Active Docket

The D.C. Circuit Court of Appeals returned cases challenging EPA’s aircraft greenhouse gas standards to its active docket on December 2, 2021 after EPA decided not to commence a reconsideration proceeding or new rulemaking. The standards are challenged by 12 states and the District of Columbia and by three environmental groups. The court also granted motions for leave to intervene filed by The Boeing Company and Aerospace Industries Association of America, Inc. and granted a motion by Airlines for America to file an amicus brief in support of EPA. The parties must submit a proposed briefing format by December 23. California v. EPA, No. 21-1018 (D.C. Cir. Nov. 15, 2021)

Juliana Plaintiffs Said Supreme Court Water Rights Decision Supported Their Request to Amend Complaint

In Juliana v. United States, the plaintiffs filed a notice of supplemental authority in which they argued that the Supreme Court’s November opinion in Mississippi v. Tennessee—which concerned rights to groundwater underlying eight states—supported “the broad principle that even after a case is dismissed for failing to plead a viable remedy, a motion to amend could be brought to cure the pleading deficiency.” The plaintiffs contended that the opinion therefore supported their motion for leave to file an amended complaint to address the Ninth Circuit’s determination that they did not have standing. Juliana v. United States, No. 6:15-cv-01517 (D. Or. Nov. 29, 2021)

Company Constructing Hydroelectric Facility in Chile Cited Climate Change as Factor in Bankruptcy Filing

On November 17, 2021, a company constructing a large run-of-river hydroelectric project in the Andes Mountains in Chile filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code in bankruptcy court in Delaware. The Board President and Chief Restructuring Office explained in a supporting declaration that “significant shifts both on the supply and demand side” had “rendered [the companies’] existing capital structure unsustainable.” On the demand side, he cited low electricity prices due to increased generation capacity. On the supply side, he said that “climate change has significantly impacted the hydrology of the Maipo Valley, where the Project is being constructed, and lower precipitation levels reduce in turn the amount of power that the Project can produce.” In re Alto Maipo Delaware LLC, No. 21-11507 (Bankr. D. Del. Nov. 17, 2021)

Suit Filed in New Mexico Federal Court Sought to Require Consideration of Global Warming in Interstate River Adjudications

New Mexico residents and an association of acequias, which are also known as “community ditches,” filed a lawsuit in federal court in New Mexico against federal, Navajo Nation, and state defendants seeking declarations regarding the application of federal law to certain reclamation and irrigation projects. The plaintiffs alleged that certain state court rulings had “overthrow[n] the first principles of federal water law, so they must be corrected by the federal courts.” Included in the relief sought by the plaintiffs were declarations that the Navajo Dam and Navajo Indian Irrigation Project (NIIP) are Bureau of Reclamation projects subject to the Reclamation Act of 1902, and to Section 8 of the Reclamation Act—which enacts a federal policy of water conservation—in particular. The plaintiffs also sought declarations that the Navajo Dam and NIIP are subject to the “practicably irrigable acreage standard”—which is the application of the beneficial use requirement to irrigation projects—and that when adjudicating claims to an interstate river, courts must consider factors that include global warming. The plaintiffs alleged that a state court judge previously “refused to consider the dire and growing shortages of water in the Colorado River system caused by global warming and prolonged drought.” Clark v. Haaland, No. 1:21-cv-01091 (D.N.M., filed Nov. 12, 2021)

Lawsuits Challenging Rio Grande National Forest Plan Cited Climate Change Threats to Protected Species

Two lawsuits filed in the federal district court for the District of Colorado challenge the U.S. Forest Service’s authorization of the Rio Grande National Forest Land Management Plan (Revised Forest Plan) and associated actions. A lawsuit brought by Defenders of Wildlife (Defenders) focused on impacts on the Canada lynx, for which the Rio Grande National Forest “provides some of [Colorado’s] most important habitat.” Defenders alleged that the Revised Forest Plan rolled back protections for lynx habitat and that the Forest Service had failed to comply with NEPA, the Endangered Species Act, and the Administrative Procedure Act. Defenders characterized the lynx in the forest as “in dire straits,” citing climate change as one of the threats, and said protecting lynx in the forest was “essential to arresting” the “alarming trend” toward extirpation in Colorado. In the second lawsuit, brought by four conservation groups, the complaint asserted claims under the National Forest Management Act, NEPA, and the Administrative Procedure Act. The plaintiffs alleged, among other things, that the Forest Service failed to disclose the Revised Forest Plans effects on the endangered Uncompahgre fritillary butterfly and the threatened Canada lynx, both of which face threats from climate change. Defenders of Wildlife v. U.S. Forest Service, No. 1:21-cv-2992 (D. Colo., filed Nov. 8, 2021); San Luis Valley Ecosystem Council v. Dallas, No. 1:21-cv-2994 (D. Colo., filed Nov. 8, 2021)

Conservation Law Foundation and ExxonM Briefed District Court on Relevance of New Developments in Climate Adaptation Case

In Conservation Law Foundation’s (CLF’s) citizen suit alleging that Exxon defendants violated the Clean Water Act and the Resource Conservation and Recovery Act (RCRA) by failing to account for climate change impacts at a petroleum terminal in Massachusetts, the parties filed responses to questions posed by the federal district court for the District of Massachusetts about various developments that occurred while CLF’s successful appeal of the district court’s stay order was pending. Exxon argued that recent Supreme Court decisions demonstrated that CLF lacked standing for its Stormwater Pollution Prevention Plan (SWPPP) and RCRA claims because alleged risk from flooding was too speculative. Exxon also contended that its revision of the SWPPP for the terminal rendered the SWPPP claims moot and that the SWPPP claims failed on the merits because in issuing the 2021 Multi-Sector General Permit (MSGP) EPA had rejected CLF’s contention that the 2015 MSGP required consideration of flood risks due to heavy precipitation and flooding. CLF argued that while the 2021 MSGP might be “some evidence” to interpret the terminal’s permit, the final 2021 MSGP in fact supported CLF’s interpretation of the terminal’s permit. CLF also argued that changes to the SWPPP were not material to CLF’s claims and that Exxon’s arguments regarding standing were “simply the latest in their continued effort to relitigate issues that the Court has already decided.” The parties also weighed in on the need for extrinsic evidence and their plans for discovery. In September, Exxon informed the court that EPA had advised that it no longer expected to issue a draft permit in September or October. Exxon also said it had begun to market the terminal for sale. Conservation Law Foundation v. Exxon Mobil Corp., No. 1:16-cv-11950 (D. Mass.)

Lawsuit Filed to Compel Federal Government to Proceed with Oil and Gas Development on Alaska Coastal Plain

Alaska Industrial Development and Export Authority (AIDEA)—which was the successful bidder for the majority of leases sold in the January 2021 oil and gas lease sale on the Coastal Plain of Alaska—filed a lawsuit in federal court in Alaska seeking to compel the Biden administration to “carry out its congressionally prescribed duties to facilitate development of the Coastal Plain’s oil and gas resources.” AIDEA asserted that President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,” which ordered a moratorium on implementation of the Coastal Plain Oil and Gas Leasing Program, was ultra vires and that the U.S. Department of the Interior’s issuance and implementation of the moratorium violated the Administrative Procedure Act, Alaska National Interests Land Conservation Act, and Tax Cuts and Jobs Act of 2017, which directed the Secretary of the Interior to conduct lease sales. Alaska Industrial Development & Export Authority v. Biden, No. 3:21-cv-00245 (D. Alaska, filed Nov. 4, 2021)

Center for Biological Diversity Sought Listing Determinations on Fish Threatened by Climate Change

Center for Biological Diversity (CBD) sued the U.S Fish and Wildlife Service in the federal district court for the Central District of California for failing to determine whether the Santa Ana speckled dace and the Long Valley speckled dace warranted protection under the Endangered Species Act (ESA). CBD asserted that the failure to make these determinations violated nondiscretionary deadlines in the ESA. The complaint described the two species as “tiny fish” endemic to certain habitats in California that are at risk of extinction due to multiple significant threats, including climate change. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 2:21-cv-08660 (C.D. Cal., filed Nov. 3, 2021)

Conservation Groups Challenged Project in Boise National Forest that Allegedly Would Affect Bull Trout Critical Habitat

On November 1, 2021, four conservation groups filed a NEPA lawsuit in federal court in Idaho challenging the U.S. Forest Service’s approval of the Sage Hen Integrated Restoration Project in the Boise National Forest. The complaint alleged that the project may include up to 19,900 acres of commercial timber harvest, up to 83.1 miles of temporary roads, prescribed fire treatments on between 35,000 and 45,000 acres, and hazardous fuels reduction and non-commercial thinking on 11, 200 acres. The allegations included that the project area contains critical habitat for bull trout, which are listed as threatened under the Endangered Species Act, and that the Forest Service failed to examine climate change impacts to bull trout critical habitat and bull trout populations. On November 15, the plaintiffs filed an amended complaint that added claims under the Endangered Species Act. Wildlands Defense v. Brummett, No. 1:21-cv-425 (D. Idaho, filed Nov. 1, 2021)

Energy Policy Advocates Asked Court to Compel Response to FOIA Request for John Kerry-Related Records

Energy Policy Advocates filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of State seeking records related to “the required ethics clearance and recusal process for Special Presidential Envoy for Climate Change John Kerry.” Energy Policy Advocates alleged that “recent reports suggest that Mr. Kerry maintains certain investments which could compromise his ability to deal in a straightforward and non-conflicted manner with one of his primary targets for diplomacy, the Peoples Republic of China.” Energy Policy Advocates v. U.S. Department of State, No. 1:21-cv-02878 (D.D.C., filed Nov. 1, 2021)

Exxon Argued that Trial Court Decision Denying Motion to Dismiss Massachusetts’ Case Jeopardized First Amendment Protections

Exxon Mobil Corporation filed a brief in its appeal of a Massachusetts state trial court’s denial of Exxon’s special motion to dismiss the Commonwealth of Massachusetts’ action alleging that Exxon systematically and intentionally misled investors and consumers about climate change. Exxon filed the special motion to dismiss under the Massachusetts anti-SLAPP (Strategic Litigation Against Public Participation) statute. In its appeal, Exxon argued that by denying its motion despite recognizing that some statements challenged by the Commonwealth constituted petitioning activity, the court’s decision “jeopardizes foundational First-Amendment protections.” Exxon argued that its statements were “made to influence policymakers and the public on energy policy” and therefore fell within the definition of petitioning. In addition, Exxon argued that the trial court improperly focused on Exxon’s “motive for speaking rather than on the basis of the Commonwealth’s claims.” Exxon also contended that the trial court erred by holding that the anti-SLAPP law protects only statements, and not omissions—Exxon asserted the “omissions” in this case related to Exxon’s “refusal to adopt the Commonwealth’s preferred viewpoints on climate change” and that the Commonwealth could not use this case to compel Exxon “to publicly advocate for the Commonwealth’s views on the exigency of climate change or the merits of energy policy [Exxon] does not support.” Exxon further argued that the trial court should have at least dismissed the Commonwealth’s claims to the extent the claims related to statements the court recognized as petitioning activity. Exxon Mobil Corp. v. Commonwealth, No. 2021-P-0860 (Mass. App. Ct. Nov. 8, 2021)

Company Constructing Transmission Line for Canadian Hydropower Challenged Maine Law

The owner of the New England Clean Energy Connection transmission line corridor (NECEC) and its parent company filed a lawsuit in state court in Maine challenging a state law passed via direct initiative in early November 2021 that would retroactively ban completion and operation of the NECEC. The plaintiffs asserted that the law deprives the owner of its vested rights under federal and state permits, violates the Maine Constitution’s provision regarding separation of powers, and violates the prohibitions in the Maine and U.S. Constitutions on impairment of contracts. The plaintiffs alleged that the project, which would bring 1,200 megawatts of hydropower from Québec into Maine and the New England electric grid, would reduce greenhouse gas emissions “by the equivalent of removing 700,000 cars from the road each year the Project is in service.” The plaintiffs also filed a motion for a preliminary injunction. NECEC Transmission LLC v. Bureau of Parks & Lands, Maine Department of Agriculture, Conservation and Forestry, No. BCD-CIV-2021-58 (Me. Super. Ct., filed Nov. 3, 2021)

Law Firm Argued that University of Minnesota Violated Data Practices Act by Failing to Respond to Requests

A law firm filed a summary judgment motion in its lawsuit under the Minnesota Government Data Practices Act (DPA) against the University of Minnesota, from which the law firm said it requested “government data on topics of great public interests—namely, the environmental impact of fossil fuel consumption and the University’s involvement in promoting climate-related litigation”—in August 2020. The law firm argued that because the University had failed to produce responsive data and had refused to commit to a production schedule, it had failed to comply with the DPA’s requirement that data be produced in an “appropriate and prompt manner” or within a “reasonable time.” The law firm alleged that Attorney General Keith Ellison drew on memoranda by University faculty that compiled and developed the legal theories underlying the State of Minnesota’s climate change lawsuit against fossil fuel entities, and that the firm’s DPA requests were “aimed at learning more about two related topics: (i) the University’s contributions to the public debate over climate change, and (ii) its involvement in developing General Ellison’s legal theories.” Stinson LLP v. University of Minnesota, No. 27-CV-21-6320 (Minn. Dist. Ct. Oct. 26, 2021)

Environmental Groups Alleged Inadequate Climate Change Analysis in Minneapolis Review of Riverfront Redevelopment Project

Two environmental groups filed a lawsuit in Minnesota district court challenging the City of Minneapolis’s approval of an Alternative Urban Areawide Review (AUAR) for redevelopment of the Upper Harbor Terminal on the west bank of the Mississippi River. (An AUAR is “an accepted alternative form of environmental review for certain kinds of projects.”) The plaintiffs asserted that the City failed to comply with the Minnesota Environmental Policy Act. They sought an order enjoining the City from taking further action related to the project until the AUAR process was complete and an AUAR analysis was deemed adequate. The complaint’s allegations included that the final AUAR was inadequate because it failed to discuss the proposed project’s contributions to climate change, mitigation of climate change, or the impacts of climate change on the proposed project. Community Members for Environmental Justice v. City of Minneapolis, No. 27-CV-21-13100 (Minn. Dist. Ct., filed Oct. 28, 2021)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Mexican Court Deemed Country’s NDC to Be Regressive and Suspended Its Effect

On March 9, 2021, Greenpeace filed an amparo, an emergency proceeding, against several government authorities in Mexico, challenging the country’s revised Nationally Determined Contributions (NDC). The NGO argued that the NDC failed to respect the principle of non-regression in human rights law. In its original 2015 NDC, Mexico committed to a 22% reduction in greenhouse gas (GHG) emissions by 2030 as compared to 2000 levels. In the revised NDC presented in December 2020, Mexico raised the baseline against which the GHG emission reduction is measured. Greenpeace argued that the updated NDC would effectively cause the additional emission of 14 million tons of CO2e; (ii) eliminate the peak of GHG emissions stipulated for 2026; (iii) rule out the 50% reduction target for 2050, which would nullify the mitigation horizon in the medium and long term. Greenpeace asked the court to suspend the effects of the 2020 NDC. On September 21, 2021, the Eleventh Collegiate Court of the First Circuit in Administrative Matters decided to suspend Mexico’s 2020 NDC. The court considered Mexico’s mitigation commitments to be regressive, in violation of the law. In its place, Mexico’s 2015 commitments on mitigation and adaptation for the 2020-2030 period apply. Greenpeace v. Instituto Nacional de Ecología y Cambio Climático and Others (Mexico, Eleventh Collegiate Court of the First Circuit in Administrative Matters)

 

DECISIONS & SETTLEMENTS 

Hearing Held in Shareholders Case Against the Commonwealth Bank of Australia

On August 26, 2021, shareholders in the Commonwealth Bank of Australia (CBA), filed an application in the Federal Court of Australia, seeking access to internal documents under the Corporations Act 2001 (Cth). The documents relate to the bank’s reported involvement with several infrastructure projects and their alignment with the goals of the Paris Agreement. On November 4, 2021, the Federal Court of Australia held a hearing to consider proposed consent orders that had been agreed by the parties in previous correspondence. In essence, the proposed consent orders allow the plaintiffs to inspect a limited scope of the documents sought at the beginning of the proceedings. On the basis of the limited admission and the evidence before the Court, the Court was satisfied that the plaintiffs met the good faith and proper purpose requirements and made the consent orders. CBA must now produce the relevant documents to the plaintiffs for inspection in two tranches on December 9, 2021 and February 10, 2022. If the documents provided by CBA under these orders do not sufficiently alleviate the plaintiffs’ concerns as set out in their application, the plaintiffs have reserved their right to apply to the Court for production of the balance of documents sought in the original application. The matter is listed for a further case management hearing on March 10, 2022. Abrahams v. Commonwealth Bank of Australia (Federal Court of Australia)

Klimaatzaak Appealed Decision from the Belgian Court that Refused to Set Binding Targets for Climate Mitigation

On November 17, 2021, Klimaatzaak appealed the judgment of the Brussels Court of First Instance that declined to issue an injunction ordering the government to set the specific emission reduction targets requested by the plaintiffs. The Court had found in June 2021 that the separation of powers doctrine limited the Court’s ability to set such targets and doing so would contravene legislative or administrative authority. The Court said that neither European nor international law required the specific reduction targets requested by the plaintiffs, and that the scientific report that they relied on, while scientifically meritorious, was not legally binding. The specific targets, therefore, were a matter for the legislative and executive bodies to decide. The Brussels Court of Appeal will review both the factual and the legal components of the case. VZW Klimaatzaak v. Kingdom of Belgium & Others (Brussels Court of First Instance)

UK Court Dismissed Greenpeace’s Claim Against the Vorlich Oil Drilling Project in the North Sea

On October 7, 2021 a three-judge panel from the Scottish Court of Sessions dismissed the claim from Greenpeace against the UK government for awarding BP a permit to drill in the North Sea. The Court confirmed that the matters under consideration, including the issue of consumption emissions, could be considered on the merits by the Court despite previous proceedings. Nonetheless, the Court dismissed the contention that the Secretary of State should have considered the consumption-based emissions associated with the project. The Court concluded that there was no duty to consider consumption-based emissions from the project as part of the environmental impact assessment of the project, stating that the question of whether the development of new oil and gas projects should cease is a political and not a legal one. Greenpeace v. United Kingdom (Scottish Court of Appeals)

Appellate Court Confirmed Nanterre Court Jurisdiction to Judge Case Brought by NGOs Against Total

On November 18, 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle a dispute brought by the NGO Notre Affairs à Tous against the oil company Total. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage. The case, brought in January 2020, requests that Total recognize the risks generated by its business activities and make its conduct consistent with the goal of limiting global warming to 1.5°C. Total had asked that the case be moved to the commercial court. The judicial battle on jurisdiction delayed the case for two years. Notre Affaire à Tous and Others v. Total (France, Versailles Court of Appeal)

NEW CASES, MOTIONS, AND OTHER FILINGS

New Claim Filed Against UK Pension Fund for Failure to Follow Up with Plan to Divest from Fossil Fuels

On October 29, 2021, several academics issued proceedings in the UK High Court against the directors of the University Superannuation Scheme (USS), a private pension scheme for academic staff. The case is a derivative claim against the USS’ directors based on the directors’ duty to act in the beneficiaries’ best interest. The claimants argue that fossil fuels have been the worst performing asset class since 2017 and that the failure of the current and former directors to create a credible plan for disinvestment from fossil fuel investments has prejudiced and will continue to prejudice the success of the Company. The scheme's level of investment in fossil fuels is assumed for the purposes of the claim to be in excess of £1 billion. Ewan McGaughey et al v Universities Superannuation Scheme Limited (United Kingdom, High Court)

New Case Filed in Brazil Requesting Update to Country’s Climate Policy that Aligns with the Goals of the Paris Agreement 

On October 26, 2021, Observatório do Clima (OC), a network of 71 civil society organizations, filed a class action against the Environmental Ministry and Brazilian government asking that the National Climate Change Policy be updated to ensure the reduction of greenhouse gas emissions by the Brazilian government consistent with a 1.5^oC global warming scenario. Plaintiffs argue that, as a signatory to the Paris Agreement, Brazil has committed to a series of duties to mitigate climate change. Along with the existing legal climate framework in Brazil (i.e., the Law on Climate Change Policy and the National Climate Change Plan), this entails a duty from the Brazilian government to (i) take the necessary measures to predict, avoid, and minimize the identified causes of climate change originating in the national territory; (ii) reduce anthropogenic GHG emissions in relation to their different sources; (iii) make the instruments of the national policy effective; (iv) present successive phases of the national plan; and (v) strive for the maximum possible ambition in reducing GHGs. On December 2020, the government presented its updated Nationally Determined Contributions to the United Nations Framework Convention on Climate Change. The new NDC used the same percentage of emissions reductions, but altered the baseline quantity for calculating them, effectively making the second NDC less ambitious than the first. Additionally, Brazil had committed to reducing deforestation by 80% by 2030 in 2015—this provision was deleted from the updated NDC. The plaintiffs assert that the updated NDC effectively violates the Paris Agreement and the national legal framework and the principle of non-regression. Laboratório do Observatório do Clima v. Minister of Environment and Brazil (Brazil, 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas)

Children Petitioned UN Secretary General to Declare Climate Emergency

On November 10, 2021, 14 youth climate activists from around the world (the same petitioners from Sacchi v. Argentina) submitted a petition to United Nations (U.N.) Secretary-General António Guterres asking him to declare a climate emergency. The petitioners call on the Secretary-General and the Inter-Agency Standing Committee (IASC) to declare a systemwide, Level 3 climate emergency at the U.N. Declaring a Level 3 Emergency, the U.N.’s highest designation, would mean placing climate action at the top of the agenda for each U.N. agency. This would ensure that U.N. resources and personnel can be deployed rapidly to dispatch aid and scientific expertise to countries most vulnerable to climate disasters. It would also ensure that the U.N. can help countries meet their emission reduction pledges on an urgent, emergency basis. Children’s Petition to the United Nations Secretary-General to Declare a Climate Emergency (United Nations Secretary General)