December 2022 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #165:
FEATURED CASE
Federal Court Found No Federal Jurisdiction for D.C.’s Consumer Protection Lawsuit Against Fossil Fuel Companies
The federal district court for the District of Columbia granted the District of Columbia’s motion to remand to D.C. Superior Court a lawsuit alleging that energy companies violated D.C.’s consumer protection law by knowingly misrepresenting the effects of fossil fuel products. The court first found that the companies failed to show that federal common law should apply to D.C.’s claims. The court reasoned that even assuming that D.C.’s claims implicated “uniquely federal” interests (e.g., interstate pollution, navigable waters of the United States, and foreign affairs), the companies did not show a “significant conflict” between those interests and D.C.’s claims. The court further found that even if federal common law applied, the well-pleaded complaint rule would bar federal jurisdiction, rejecting the suggestion that the doctrine of complete preemption provided an exception to the well-pleaded complaint rule in this case. The court noted that the Supreme Court has only recognized complete preemption in the context of federal statutes, not federal common law. The court next found that the defendants did not establish that the Grable exception to the well-pleaded complaint rule applied because the defendants failed to identify a disputed federal issue that was necessary to resolve D.C. Consumer protection claims. The court also found that federal enclave jurisdiction did not apply and that removal was improper under the Outer Continental Shelf Lands Act’s (OCSLA’s) broad jurisdictional grant because the alleged false advertising and misleading information campaigns were not “operation[s]” under OCSLA and because activities on the outer Continental Shelf were not shown to be the but-for cause of D.C.’s injuries. In addition, the court found that federal-officer removal did not apply because even if the defendants acted under the federal government’s direction in their development of fossil fuel products, there was not a nexus between D.C.’s claims and the asserted federal authority. The court also rejected arguments that there was diversity jurisdiction or jurisdiction under the Class Action Fairness Act. On November 14, the court granted the defendants’ emergency motion for a temporary stay of execution of the remand order. On November 28, the defendants filed a motion to stay execution of the remand order pending appeal to the D.C. Circuit. District of Columbia v. Exxon Mobil Corp., No. 20-cv-1932 (D.D.C. Nov. 12, 2022)
DECISIONS AND SETTLEMENTS
Third Circuit Said Religious Order’s Religious Freedom and Restoration Act Suit Against Pipeline Company Was Impermissible Collateral Attack
The Third Circuit Court of Appeals affirmed the dismissal of a second lawsuit brought against a gas pipeline company by an order of Roman Catholic nuns who contended that the use of their property in Pennsylvania for an interstate pipeline violated their rights under the Religious Freedom and Restoration Act (RFRA) due to the order’s belief that “the extraction, transportation, and use of fossil fuels accelerates global warming and climate and, thus, defiles God’s creation.” In their first lawsuit, the religious order sought an injunction to stop construction of the pipeline. In the second lawsuit, they requested money damages. The Third Circuit held, as it had in the first lawsuit, that the second lawsuit was an impermissible collateral attack on the Federal Energy Regulatory Commission’s (FERC’s) authorization of the pipeline because the religious order should have raised the RFRA claim before FERC. Adorers of the Blood of Christ v. Transcontinental Gas Pipe Line Co., No. 21-2898 (3d Cir. Nov. 8, 2022)
D.C. Federal Court Said President’s Senior Advisor and Climate Task Force Weren’t Subject to FOIA
The federal district court for the District of Columbia dismissed the President’s Senior Advisor for Clean Energy Innovation and Implementation (John Podesta) and the National Climate Task Force from a Freedom of Information Act (FOIA) lawsuit brought by Competitive Enterprise Institute. The lawsuit sought to compel disclosure of information about the Task Force’s first meeting and certain communications involving the Task Force and the U.S. Environmental Protection Agency and the Office of the Secretary of Commerce (which were also defendants), as well as other agencies. The court held that Podesta and the Task Force were not “agencies” subject to FOIA. Competitive Enterprise Institute v. Podesta, No. 21-cv-1238 (D.D.C. Nov. 28, 2022)
California Federal Court Dismissed Claims that “100% Recyclable” Labels for Single-Use Bottles Were Misleading
The federal district court for the Northern District of California dismissed a lawsuit alleging that Coca-Cola Company and other defendants made false and misleading claims that single-use plastic bottles they supplied were “100% recyclable.” The court found that the plaintiffs did not plausibly allege that the defendants’ representations deviated from either the “commonly understood meaning of recyclable” or the definition in the Green Guides published by the Federal Trade Commission. The plaintiffs’ allegations included that “[o]ver 60 million plastic bottles end up in landfills or incinerators each day” and that “[i]ncineration of plastic releases large quantities of greenhouse gases and toxic air emissions.” The court granted the plaintiffs—who asserted claims under California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, as well as claims that the labeling constituted fraud, deceit, and/or misrepresentation, and negligent misrepresentation—permission to file an amended complaint by December 9, 2022. Swartz v. Coca-Cola Co., No. 3:21-cv-04643 (N.D. Cal. Nov. 18, 2022)
Federal Court Declined to Vacate Biological Opinion for Lobster and Crab Fishery
The federal district court for the District of Columbia remanded a 2021 biological opinion for lobster and crab fishing off the Atlantic coast to the National Marine Fisheries Service (NMFS) and held the question of vacatur of the biological opinion in abeyance. Further briefing is to be submitted after NMFS issues a new final Atlantic Large Whale Take Reduction Plan Amendment Rule, which NMFS must do no later than December 9, 2024. The court held earlier this year that NMFS violated both the Endangered Species Act and the Marine Mammal Protection Act when it issued the rule and biological opinion, which authorized zero lethal takes of the endangered North Atlantic right whales despite the projection that the American lobster fishery would potentially kill and seriously injure the whales at over three times the sustainable rate. The court concluded that holding the decision on vacatur in abeyance was “the wisest course because facts on the ground are shifting rapidly, as new data emerge on right-whale migratory patterns, mortality factors, technological change, and more.” Those changes include “climate shifts” that push the whales’ habitat northward. Center for Biological Diversity v. Raimondo, No. 1:18-cv-00112 (D.D.C. Nov. 17, 2022)
Reversing Course, Federal Court Said It Lacked Authority to Vacate 2019 Endangered Species Act Regulations
The federal district court for the Northern District of California amended its order that vacated and remanded 2019 amendments to the Endangered Species Act regulations, which included provisions that plaintiffs alleged would limit consideration of the effects of climate change and constrain designation of critical habitat for species whose current habitat is threatened by climate change. Citing a Ninth Circuit order that said the district court had “clearly erred” in its earlier pre-merits vacatur of the rules (as well as the 2022 Supreme Court decision on which the Ninth Circuit relied), the district court concluded that it could not vacate the 2019 rules without fully adjudicating the merits of the plaintiffs’ claims. Center for Biological Diversity v. Haaland, No. 4:19-cv-05206 (N.D. Cal. Nov. 16, 2022)
Proposed Consent Decree Would Require Submission of Final TMDL for Western Lake Erie by June 2023
The U.S. Environmental Protection Agency (EPA) published notice of a proposed consent decree in a citizen suit filed in 2019 that alleged that EPA violated the Clean Water Act and Administrative Procedure Act when it approved a report and impaired water list submitted by the Ohio Environmental Protection Agency that identified western Lake Erie as a “low” priority for development of a Total Maximum Daily Load (TMDL) to address nutrient pollution. The plaintiffs alleged that a TMDL was “especially urgent” because algal blooms and nutrient pollution problems “are likely to be exacerbated by climate change.” In 2020, Ohio submitted, and EPA approved, a new impaired waters list that identified western Lake Erie as a high priority for TMDL development. The consent decree would require that Ohio submit a final TMDL to EPA by June 30, 2023 and would require EPA to develop a TMDL if Ohio does not submit a final TMDL by the deadline and the court does not extend the deadline. Environmental Law & Policy Center v. EPA, No. 3:19-cv-00295 (N.D. Ohio Nov. 10, 2022)
D.C. Federal Court Sent Offshore Wind Project Challenge to Eastern District of New York
The federal district court for the District of Columbia granted a motion to transfer a case challenging the Bureau of Ocean Energy Management’s (BOEM’s) approval of the South Fork offshore wind energy project to the Eastern District of New York. The plaintiff claims that BOEM failed to consider adverse environmental impacts, including drinking water impacts of construction and impacts on the Atlantic cod population. The plaintiff also alleges that BOEM found that the project would help New York meet the mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA) but that BOEM did not take into account that the project allegedly did not comply with the CLCPA’s requirements to minimize costs and to reduce negative impacts on disadvantaged communities. The plaintiff also asserted Coastal Zone Management Act, Outer Continental Shelf Lands Act, Administrative Procedure Act, Freedom of Information Act, and due process claims, as well as a claim of violation of Executive Order 12898, which addressed environmental justice. The district court in the District of Columbia found that public interest factors weighed strongly in favor of transferring the case and outweighed the plaintiff’s preference that venue be in the District of Columbia. Kinsella v. Bureau of Ocean Energy Management, No. 1:22-cv-02147 (D.D.C. Nov. 10, 2022)
D.C. Federal Court Allowed Companies, Trade Associations, and Wyoming to Intervene to Defend Drilling Permits
The federal district court for the District of Columbia granted motions to intervene on behalf of the defendants in conservation groups’ lawsuit challenging the U.S. Bureau of Land Management’s approval of more than 4,000 applications for permits to drill (APDs) for oil and gas in New Mexico and Wyoming. The court found that companies holding the challenged APDs, industry trade associations, and the State of Wyoming had standing and satisfied requirements to intervene as of right. Center for Biological Diversity v. U.S. Department of the Interior, No. 1:22-cv-01716 (D.D.C. Nov. 9, 2022)
Partial Final Judgment Entered for EPA in Case Challenging Biden Administration Reconstitution of Advisory Committees
The federal district court for the District of Columbia entered partial final judgment in a lawsuit challenging EPA’s reconstitution of advisory committees during the Biden administration. The court directed entry of final judgment in favor of the defendants on the claims related to the Clean Air Scientific Advisory Committee (CASAC), having previously concluded that the reconstitution of the CASAC did not violate the Federal Advisory Committee Act or the Administrative Procedure Act. The court stayed proceedings with respect to the remaining claims, which concerned the Science Advisory Board, pending the resolution of the plaintiffs’ appeal. Young v. EPA, No. 1:21-cv-02623 (D.D.C. Nov. 2, 2022)
Massachusetts High Court Rejected Contention that Board Should Not Have Approved Substation Location Due to Sea Level Rise Risk
The Massachusetts Supreme Judicial Court upheld the Energy Facilities Siting Board’s approval of a petition to move a proposed electric substation’s boundaries 190 feet from a previously approved location. The party challenging the approval argued, among other things, that the new location put the substation at risk from sea level rise due to climate change and that the Board should have used a planning horizon based on the 60-year average age of substations currently in use. The court, however, found no error in the Board’s adoption of a 40-year planning horizon based on the design life of the substation. The court said the planning horizon was reasonable, “given the uncertainties in long-term predictions of sea level rise and electricity demand.” The court further concluded that the 40-year planning approach, combined with ongoing reporting requirements, was “a reasonable approach to handling the uncertainty of climate change.” The court noted that “[o]ther courts have approved similar schemes with regard to sea level rise,” citing a 2015 federal court decision that found that consideration of short-term climate impacts over the 10-year term of certain fisheries was appropriate and approved the agency determination that long-term effects were “too indeterminate to yield clearly articulable conclusions.” GreenRoots, Inc. v. Energy Facilities Siting Board, No. SJC-13233 (Mass. Nov. 4, 2022)
Colorado Appellate Court Said State Agencies Complied with Rulemaking Directive in 2019 Climate Law
The Colorado Court of Appeals found that Colorado state agencies’ actions to implement 2019 climate change legislation were consistent with the duties imposed by a provision of the law that required publication of proposed rules by July 1, 2020 “to implement measures that would cost-effectively allow the state to meet its greenhouse gas emission reduction goals.” Environmental groups contended that the provision required the agencies to promulgate regulations “sufficient” to meet greenhouse gas reduction goals articulated elsewhere in the statute. The appellate court found that the provision’s language was ambiguous and that the rest of the statute’s text, the larger statutory scheme, and legislative history supported an interpretation that the provision was focused on rulemaking related to data collection and greenhouse gas inventories that would enable future measures to achieve the reduction goals. The appellate court further found that the agencies had satisfied their duties under the statutory provision. Environmental Defense Fund v. Colorado Department of Public Health, No. 21CA2032 (Colo. App. Nov. 3, 2022)
Utah Court Dismissed Youth Plaintiffs’ Climate Case Against State Defendants
A state district court in Utah dismissed a lawsuit brought against the State of Utah and other State defendants for allegedly violating the substantive due process rights of youth plaintiffs under the Utah constitution to life, health, and liberty by maximizing, promoting, and systematically authorizing development of fossil fuels. Counsel for the plaintiffs reported that the court’s brief written decision stated that the plaintiffs had a “valid concern” but dismissed their claims, citing the political question doctrine, redressability, and substantive due process issues. Plaintiffs said they would appeal the dismissal. Natalie R. v. State, No. 220901658 (Utah Dist. Ct. Nov. 9, 2022)
D.C. Court Dismissed Claims that Coca-Cola’s Sustainability Statements Violated D.C. Consumer Protection Law
The D.C. Superior Court dismissed a lawsuit alleging that Coca-Cola Company’s statements about its sustainability initiatives on various platforms such as its website and Twitter constituted false and deceptive marketing in violation of the District of Columbia Consumer Protection Procedures Act (CPPA). The court first found that the plaintiff failed to state a claim because Coca-Cola’s statements were “aspirational in nature” and therefore not in violation of the CPPA. In addition, the court found that statements regarding “corporate ethos, hopes, and philosophies” in corporate communications could not be considered “part of the product itself” and therefore could not serve as the basis for claims under CPPA provisions that require deception involving a specific “goods or services.” With respect to the CPPA provisions not tied to specific “goods and services,” the court found that a claim could not be made “on the basis of a ‘general impression’ or a ‘mosaic of representations’” but instead that misrepresentations had to be tied to a material fact. The court further found that, “[e]ven taken together,” Coca-Cola’s statements were “aspirational, limited, and vague such that, as a matter of law, such statements cannot be misleading.” Earth Island Institute v. Coca-Cola Co., No. 2021 CA 001846 B (D.C. Super. Ct. Nov. 10, 2022)
New York Court Barred Construction of Syracuse Highway Project
A New York Supreme Court granted a temporary restraining order prohibiting construction of a highway project in Syracuse and awards of design and/or building contracts. The parties challenging the project contend that the respondents failed to comply with New York’s State Environmental Quality Review Act, Smart Growth Public Infrastructure Policy Act, and Climate Leadership and Community Protection Act, including by failing to sufficiently evaluate and minimize greenhouse gas emissions. The court found that the petitioners established the required elements for a temporary restraining order pending a final determination, and that the respondents’ contentions that delay would result in the loss of tens of millions of dollars were based on speculation. The court also dismissed the Federal Highway Administration from the lawsuit. Renew 81 for All v. New York State Department of Transportation, No. 007925/2022 (N.Y. Sup. Ct. Nov. 10, 2022)
NEW CASES, MOTIONS, AND OTHER FILINGS
Sixteen Puerto Rico municipalities filed a lawsuit in the federal district court for the District of Puerto Rico seeking to hold coal, oil, and gas companies liable for losses resulting from storms during the 2017 hurricane season and ongoing economic losses since that time. The municipalities brought the action on their own behalf as well as on behalf of a proposed class of all of Puerto Rico’s municipalities. The municipalities alleged that the defendants were responsible for 40.01% of all global industrial greenhouse gas emissions from 1965 to 2017, and that these collective emissions were a “substantial factor in the increase in intensity of the 2017 Atlantic Hurricane Season.” The municipalities alleged that Puerto Rico “suffered apocalyptic damage” from two of those storms—Hurricanes Irma and Maria—which they alleged were intensified by climate change, “as accelerated by Defendants’ consumer products and conduct.” The plaintiffs contended that the defendants were liable because “they knowingly caused and contributed to the worsening of the climate change by producing, promoting, refining, marketing, and selling fossil fuel products … that have caused and continue to cause the devastating effects of climate change, while concealing and misrepresenting the dangers associated with the use of fossil fuel-based products, including the increased frequency of more dangerous storms.” The complaint alleged a “corporate worldwide strategy” to hide information linking the defendants’ products to acceleration of climate change and to an increased likelihood “that Puerto Rico and thus the Plaintiff Municipalities would be ravaged by dangerous, deadly storms.” In addition to more intense storms, the municipalities alleged other physical climate change impacts, including coral reef degradation and “an unprecedented, massive bloom of sargassum,” as well as social, educational, and economic losses, including increased immigration from the municipalities and damages to the agricultural industry. The municipalities asked that the defendants pay costs the plaintiffs had incurred and would continue to incur due to climate change. They also sought punitive damages, disgorgement of profits, pre-judgment interest, attorneys’ and expert witness fees and other costs, and other equitable, declaratory and/or injunctive relief “to assure … an effective remedy.” They asserted 14 causes of action under federal and Puerto Rico law: claims of common law consumer fraud and conspiracy to commit common law consumer fraud and deceptive business practices, claims under Puerto Rico’s statute prohibiting false or misleading advertisements and practices, claims under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), federal antitrust claims, claims under Puerto Rico’s nuisance statute, strict liability claims based on failure to warn and design defect, a negligent design defect claim, and a cause of action for unjust enrichment/restitution. Municipalities of Puerto Rico v. Exxon Mobil Corp., No. 3:22-cv-01550 (D.P.R., filed Nov. 22, 2022)
Additional Certiorari Petitions Filed Requesting Review of Jurisdictional Issues in State/Local Government Climate Cases
Three more petitions for writ of certiorari were filed in climate change cases brought by local or state governments against fossil fuel industry defendants. The petitions seek the Supreme Court’s review of decisions affirming the remand of these cases to state courts. The three petitions were filed in cases brought by (1) six cities and counties in California, (2) the State of Rhode Island, and (3) the City and County of Honolulu and the County of Maui. The fossil fuel companies present the following question in all three cases: “Whether a federal district court has jurisdiction under 28 U.S.C. § 1331 over nominally state-law claims seeking redress for injuries allegedly caused by the effect of transboundary greenhouse-gas emissions on the global climate, on the ground that federal law necessarily and exclusively governs such claims.” In the Honolulu and Maui case, the companies also sought review of the following question regarding the application of the federal officer removal statute: Whether the Ninth Circuit erred in holding that the federal officer removal statute “precludes removal by federal officers and persons acting under them unless the removing defendant’s colorable federal defense arises out of the defendant’s federal duty.” Chevron Corp. v. San Mateo County, No. 22-495 (U.S. Nov. 22, 2022); Shell Oil Products Co. v. Rhode Island, No. 22-524 (U.S. Nov. 30, 2022); Sunoco LP v. City & County of Honolulu, No. 22-523 (U.S. Nov. 30, 2022)
In addition to the certiorari petitions and the remand decision in the District of Columbia’s case (discussed above), other developments in state and local government climate change cases include fossil fuel companies’ motion to stay proceedings in Delaware state court in the State of Delaware’s case pending the resolution of the certiorari petitions. In addition, briefing of the City of Charleston’s renewed motion to remand was completed in the federal district court for the District of South Carolina. Delaware v. BP America Inc., No. N20C-09-097 (Del. Super. Ct.); City of Charleston v. Brabham Oil Co., No. 2:20-cv-03579 (D.S.C.)
Conservation Groups Said Agencies Failed to Consider Additive Climate Change Effects of Bureau of Reclamation Operations on Middle Rio Grande Protected Species
WildEarth Guardians filed a lawsuit in the federal district court for the District of New Mexico challenging the 2016 biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the effects of the U.S. Bureau of Reclamation’s (Reclamation’s) Middle Rio Grande water operations on species listed under the Endangered Species Act and their critical habitat. WildEarth Guardians’ claims include that the FWS failed to consider “the additive climate impacts to the impacts of Reclamation’s water operations,” which include surface water diversions for irrigated lands. The complaint alleged that “[c]limate change over the remainder of the century will significantly alter availability of flows in the Rio Grande Basin” and that the FWS failed to assess how “climate-induced stream changes will affect the efficacy of the proposed conservation measures the [FWS] relies on” to reach its conclusion that Reclamation’s operations would not jeopardize listed species such as the Rio Grande silvery minnow or destroy or adversely modify the species’ critical habitat. In addition, WildEarth Guardians alleged that the FWS and Reclamation must reinitiate consultation under the Endangered Species Act to address significant new information, including information on climate change impacts. WildEarth Guardians v. U.S. Fish & Wildlife Service, No. 1:22-cv-00914 (D.N.M., filed Nov. 30, 2022)
Wyoming Filed New Lawsuit Challenging Federal Government’s Cancellation of 2021 and 2022 Oil and Gas Lease Sales
The State of Wyoming filed a lawsuit asserting that the federal government violated the Mineral Leasing Act and the Administrative Procedure Act when it canceled or decided not to hold federal oil and gas lease sales for the second and third quarters of 2021 and third quarter of 2022. Wyoming also challenged the Biden administration’s “unwritten decision to pause federal oil and gas leasing.” The federal district court for the District of Wyoming, where the suit was filed, in September 2022 rejected a challenge to the cancellation of the first quarter 2021 lease sale, finding that the cancellation “was accompanied with a sufficient explanation” that “no land was ‘available’ for leasing at that time” because additional review under the National Environmental Policy Act was required. In the new lawsuit, Wyoming contended that the Secretary of the Interior did not provide adequate justification for canceling the second quarter 2021 lease sale, provided no explanation for deciding not to hold the third quarter 2021 and third quarter 2022 sales, and adopted a new leasing policy without providing an explanation. Wyoming v. U.S. Department of Interior, No. 1:22-cv-00247 (D. Wyo., filed Nov. 28, 2022)
Lawsuit Sought Critical Habitat Designation for Endangered Beetle
Center for Biological Diversity and three other groups filed a lawsuit in the federal district court for the Southern District of Florida seeking to compel the U.S. Fish and Wildlife Service to designate critical habitat for the Miami tiger beetle, which the FWS listed as endangered in October 2016. The complaint alleged that the beetle and its habitat in “patches of pine rockland … in Miami-Dade County” were threatened by urban development and other factors, including climate change and sea level rise. In a stipulation resolving earlier litigation, the FWS agreed to issue a final determination on designation of critical habitat for the beetle by August 2021. Center for Biological Diversity v. Haaland, No. 1:22-cv-23765 (S.D. Fla., filed Nov. 16, 2022)
Groups Challenged Decision that Would Allow Mining “at the Doorstep” of Okefenokee National Wildlife Refuge
Four conservation groups challenged the U.S. Army Corps of Engineers’ reinstatement of approved jurisdictional determinations for 550 acres of wetlands “at the doorstep of the Okefenokee National Wildlife Refuge.” The wetlands were previously determined to be jurisdictional “waters of the United States.” The plaintiffs alleged that the owner intended to strip-mine heavy mineral sands from the wetlands, which the plaintiffs alleged were “critical to the hydrology and ecology of the Okefenokee Swamp.” The complaint described the swamp as “one of the largest intact freshwater ecosystems in North America” and alleged that it was “a critical link in important wildlife corridors,” economically important to local residents, significant to the regional’s Native American history, and “important from a climate perspective, holding the largest remaining undisturbed peat deposit on the North American Coastal Plain,” which “stores the equivalent of over 95 million tons of carbon dioxide.” National Wildlife Refuge Association v. U.S. Army Corps of Engineers, No. 1:22-cv-03498 (D.D.C., filed Nov. 15, 2022)
Plaintiff Charged that Georgia Public Service Commissioner Violated Her Free Speech Rights
In a lawsuit filed in the federal district court for the Northern District of Georgia, a plaintiff asserted that a Georgia Public Service Commissioner had violated her free speech rights by blocking her accounts on Twitter and Facebook. The plaintiff described herself as “a concerned citizen” who was “politically active” and who had run to serve on the Public Service Commission before a federal court cancelled the election based on a Voting Rights Act violation. The plaintiff alleged that her constitutionally protected speech on the Commissioner’s Twitter account and Facebook page included “criticism of Commissioner Echols’ positions on the viability of nuclear energy sources and programs in Georgia, effective methods of tackling carbon dioxide reduction, and Georgia utility rate increases.” For example, the plaintiff alleged that she responded to the Commissioner’s re-tweet of an assertion that a carbon tax would be ineffective in reducing global carbon dioxide levels with criticism of the Commission’s investment in nuclear power. The plaintiff sought to enjoin the defendant from censoring her comments and to enjoin “the current unconstitutional and standard-less practice of deleting platform activity and blocking users …due to their content or viewpoint.” Other relief sought included damages and attorney’s fees. Durand v. Echols, No. 22CV04548 (N.D. Ga., filed Nov. 15, 2022)
Lawsuit Challenged Nationwide Permit for Industrial Finfish Aquaculture
A lawsuit filed in the federal district court for the Western District of Washington challenged the U.S. Army Corps of Engineers’ issuance of Nationwide Permit 56 authorizing industrial finfish aquaculture structures in federal waters. The plaintiffs asserted that the Corps’ issuance of the permit exceeded its powers under the Constitution’s Property Clause, the Outer Continental Shelf Lands Act, and the Rivers and Harbors Act (RHA) and violated the RHA, the Administrative Procedure Act, the National Environmental Policy Act (NEPA), the Endangered Species Act, and the Magnuson-Stevens Act. The alleged violations under NEPA included that the decision document did not fully assess the incremental impact of permitting finfish aquaculture nationwide, combined with other existing and foreseeable impacts from other activities, including climate change. Don’t Cage Our Oceans v. U.S. Army Corps of Engineers, No. 2:22-cv-01627 (W.D. Wash., filed Nov. 14, 2022)
Lawsuit Said California’s Zero-Emission Vehicle Requirement Violated Due Process and Equal Protection Rights
The Two Hundred for Homeownership and two individuals filed a lawsuit against the California Air Resources Board (CARB) in the federal district court for the Eastern District of California to challenge the Advanced Clean Cars II regulation that requires all new cars and light trucks sold in California to be zero-emission vehicles by 2035. The petitioners alleged that the regulation would have disproportionate adverse impacts on them and other members of disadvantaged minority communities because it would harm their ability “to gain access to necessary, affordable and reliable transportation.” They contended (1) that the regulation violated their due process rights under the U.S. and California Constitutions because the regulation was “not rationally calculated to further the State’s legitimate interest in reducing emissions of GHG and other pollutants caused by motor vehicles” and (2) that it violated their equal protection rights under the U.S. and California Constitutions by making affordable private transportation unavailable to members of minority communities as compared with non-minority persons. The petitioners also asserted violations of the California Administrative Procedure’s (APA’s) “necessity” prong because CARB allegedly failed to independently verify that the regulation was needed to comply with California’s statutory target of 40% lower greenhouse gas emission reductions by 2030. Other APA violations alleged by the petitioners included a lack of authority to phase out sales of internal combustion engine vehicles, inconsistency with constitutional and statutory protections, and failure to comply with procedural requirements. In addition, the petitioners alleged that CARB violated the California Environmental Quality Act. The Two Hundred for Homeownership v. California Air Resources Board, No. 1:22-cv-01474 (E.D. Cal., filed Nov. 14, 2022)
Carbon Dioxide Pipeline Developer and Ethanol Facility Owner Challenged County’s Regulation of Pipeline
A lawsuit filed in the federal district court for the Southern District of Iowa challenged an ordinance passed by the Story County Board of Supervisors that establishes setback and other requirements for hazardous materials pipelines, including carbon dioxide pipelines. The plaintiffs were (1) the developer of a proposed interstate carbon dioxide pipeline to transport carbon dioxide captured from ethanol and fertilizer plants and deliver it to sequestration sites in North Dakota and (2) a farmer and part-owner of an ethanol production facility in Story County. The complaint alleged that the pipeline would allow the ethanol production facility to ship its ethanol to the California and Pacific Northwest markets and that without the pipeline and availability of carbon sequestration, the carbon intensity of the ethanol produced at the facility would be too high for those markets, which have low carbon fuel standards. The plaintiffs alleged that the federal Pipeline Safety Act and Iowa state law preempted the county ordinance. Couser v. Story County, No. 4:22-cv-00383 (S.D. Iowa, filed Nov. 14, 2022)
Lawsuit Filed Seeking Phase-Out of Greenhouse Gas Pollution Under TSCA
Nonprofit organizations, individual scientists, and a psychiatrist filed a lawsuit in the federal district court for the District of Oregon seeking to compel the U.S. Environmental Protection Agency (EPA) to issue a rulemaking under the Toxic Substances Control Act (TSCA) “to phase out the production and importation and, as warranted, the processing, distribution, use or atmospheric disposal of certain chemical substances and mixtures … as required to secure the phase out of greenhouse gas (‘GHG’) pollution and to compel removal of residual and legacy GHG emissions.” The plaintiffs petitioned EPA to undertake this rulemaking in June 2022, and EPA denied the petition in September 2022. Climate Protection & Restoration Initiative v. Regan, No. 6:22-cv-1772 (D. Or., filed Nov. 12, 2022)
Class Action Lawsuit Said Companies Misrepresented Recyclability of Hefty Trash Bags
A class action lawsuit filed in the federal district court for the Southern District of California alleged that the defendant companies misrepresented that Hefty Recycling trash bags were suitable for recycling. The plaintiff alleged that he and other consumers “actively seek out products that are recyclable to prevent the increase in global waste and to minimize their environmental footprint” and that they relied on the defendants’ representations when they purchased the trash bags and would not have bought the bags or paid as much for them if they had known the truth about the bags’ recyclability. The complaint alleged that the environmental harms of plastic waste include releases of “large amounts of methane” and that plastic waste was thus “thought to be a significant potential cause of global climate change.” The complaint asserted claims under California’s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law, as well as claims of negligent misrepresentation, unjust enrichment, and fraud. The relief sought included restitution, disgorgement of profits, and injunctive relief requiring a recall of products and removal of “recyclable” claims on the defendants’ website and elsewhere. Woolard v. Reynolds Consumer Products, Inc., No. 3:22-cv-01684 (S.D. Cal., filed Oct. 28, 2022)
Bank Trade Association and Affordable Housing Financer Challenged Kentucky Attorney General’s ESG Investigation
A trade association for banks in Kentucky and a company that finances affordable housing filed a lawsuit in Kentucky Circuit Court to bar the Kentucky Attorney General from continuing with his investigation of “violations related to ESG (environmental, social, governance) investment practices.” On October 19, 2022, the Attorney General issued six subpoena and civil investigation demands (CIDs) to banks. The complaint alleged that the CIDs—which included 24 Demands for Information and 20 Demands for Documents—made “excessive demands” that “plainly create unreasonable burdens upon and governmental investigations against businesses and people who might worry about, discuss, or even think about global climate change or environmental activities.” Among the alleged “excessive demands” was a demand for production of documents and communications related to any “Global Climate Initiative,” which was defined as any “group, organization, or affiliation of private and/or public entities for the purpose of utilizing the financial system to reduce or eliminate greenhouse gas emissions or otherwise pursue environmental goals,” including the Glasgow Financial Alliance for Net Zero and Net-Zero Banking Alliance. The plaintiffs claimed that the Attorney General was acting outside the scope of his authority; that the Attorney General violated rights or speech and association granted by the U.S. and Kentucky Constitutions; and that the Attorney General violated a Kentucky law enacted in 2022 that imposed restrictions on state investments in and contracting with companies that engage in “energy company boycotts.” The Attorney General removed the lawsuit to federal court, where the plaintiffs filed a motion requesting that the court abstain from deciding their claims and remand back to the state court. HOPE of Kentucky, LLC v. Cameron, No. 22 CI 00842 (Ky. Cir. Ct., filed Aug. 31, 2022), No. 3:22-cv-00062 (E.D. Ky. Nov. 10, 2022)
Lawsuit Charged that “Carbon Neutral” Labeling of Evian Water Was Misleading
A greenwashing class action lawsuit filed in the federal district court for the Southern District of New York asserted that the manufacturer and seller of Evian Natural Spring Water bottled water made false and misleading representations that the product was “carbon neutral.” The complaint alleged that the manufacturing process was not carbon neutral, and that even under the “carbon offset” definition of “carbon neutral,” the organizations with which the defendant worked to generate offsets contribute to pollution currently and the offsets will not take place for decades. The complaint asserted claims under California’s Consumers Legal Remedies Act and New York General Business Law §§ 349 (prohibits deceptive acts or practices in the conduct of any business, trade, or commerce) and 350 (prohibits false advertising in the conduct of any business, trade, or commerce), as well as claims for breach of express warranty, breach of implied warranty, unjust enrichment, and fraud. Dorris v. Danone Waters of America, No. 7:22-cv-08717 (S.D.N.Y., filed Oct. 13, 2022)
Plaintiffs Said BLM Should Have Considered Climate Concerns Before 2022 Gather of Wild Horses and Burros
A lawsuit filed in the federal district court for the District of Nevada challenged the U.S. Bureau of Land Management (BLM) decision to remove wild horses and burros from Herd Management Areas in August 2022. The plaintiffs alleged that BLM violated the Wild Free-Roaming Horses and Burros Act, NEPA, the Administrative Procedure Act, and the First Amendment. The plaintiffs’ allegations included that BLM gathered the horses and burros pursuant to a 2017 approval of a 20-year gather plan without incorporating new priorities such as climate concerns. CANA Foundation v. U.S. Department of Interior, No. 2:22-cv-01200 (D. Nev., filed Sept. 2, 2022)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASES
Dutch Court Held that RWE and Uniper Could Not Claim Financial Compensation for Government’s Mandatory Phase-Out of Coal-Fired Electricity Production
This case was brought by the German energy companies RWE and Uniper, which own three major coal-fired power plants in the Netherlands. The companies filed claims of EUR 1.4 billion and EUR 1 billion respectively against the Dutch state, claiming the country’s ban on coal-fired power generation by 2030 was a form of expropriation in violation of their right to property in Article 1 of Protocol 1 of the European Convention on Human Rights, and the right to property in Article 17 of the EU Charter of Fundamental Rights. The Dutch government adopted the Prohibition of Coal in Electricity Production Act in 2019 to help implement its obligations under international climate law. The law provides that coal-fired power stations may no longer use coal as a fuel to generate electricity in the long term (by 2030 at the latest). The law aims to reduce CO₂ emissions from power plants.
On November 30, 2022, the District Court of Hague decided that the energy companies could not claim financial compensation for the mandatory phase-out of coal-fired electricity production. The District Court ruled that while the law indeed infringed on the right to property of the energy companies, this infringement was not unlawful. In light of the established case law of the European Court of Human Rights (ECHR), the District Court determined whether the Prohibition of Coal in Electricity Production Act met the criteria for lawful interference with the property right. These criteria include the so-called “fair balance” test, encompassing consideration of the nature and scale of the interference—including whether the measure entails a “de facto expropriation” which would normally be eligible for compensation —and proportionality, necessity, and foreseeability. In terms of expropriation, the District Court applied a strict test following ECHR case law and a previous Dutch Supreme Court ruling. Notably, de facto expropriation does not exist in situations where, even “if a measure leads to the termination of the company, the entitled party retains any economic interest or a meaningful possibility to use (assets of) the company.” The Court decided that there are several financial interests in the continued use of the power plants, including their potential conversion to using other fuels, such as biomass. The measure did not amount to expropriation; instead, it fell within the sphere of lawful regulation of companies, which does not necessitate compensation per se. The District Court further decided that the measures taken by Dutch state to reduce CO₂ emissions were proportional and that the interests of the owners had been sufficiently taken into account when adopting the law. Based on these arguments, the court concluded that the Prohibition on Coal in Electricity Production Act did not place an “individual and excessive burden” on the energy companies. RWE and Uniper v. State of the Netherlands (Ministry of Climate and Energy) (District Court North-Holland, Netherlands)
Swedish Citizens Filed a Class Action Against the Government, Contending that Its Inaction on Mitigating Climate Change Violated Their Human Rights
On November 25, 2022, a group of over 600 young citizens born between 1996 and 2015 filed a class action lawsuit against the Swedish state, arguing that Sweden’s action on mitigating climate change is inadequate and thus in violation of their rights under the European Convention on Human Rights (ECHR). Specifically, the plaintiffs argue that the risk of the negative impacts of climate change constitutes interferences with their rights to life, private and family life, and non-discrimination under articles 2, 8, and 14 of the ECHR, respectively, as well as the right to property under article 1, protocol 1 of the ECHR. Plaintiffs argue that Sweden is taking inadequate measures to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep global warming below 1.5°C as compared to pre-industrial levels by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks. In particular, the plaintiffs argue that climate change impacts leading up to the year 2100 will be serious, especially in relation to impacts on human health, and that they are expected to be particularly affected by these impacts because they expect to be alive at that time, based on the average life span in Sweden. In terms of specific impacts, the plaintiffs cite longer and more intense heatwaves causing both mild and severe health effects, shorter and more temperate winters leading to the increased spread of diseases through ticks, and changes to precipitation patterns leading to health impacts stemming from flooding, among others. The plaintiffs ask the court to order the state to implement its fair share of GHG emissions reductions to keep global warming below 1.5°C, by adopting sufficient and adequate procedural and substantive measures to ensure that emissions are continuously reduced and that GHG is absorbed through natural carbon sinks, in order to limit the risk of negative impacts of climate change on them. Anton Foley and others v Sweden (Aurora Case) (Nacka District Court, Sweden)
DECISIONS AND SETTLEMENTS
Mexican Appellate Court Overturned District Court’s Decision to Suspend the Effects of the Amendments to Mexico’s Energy Laws
On May 25, 2020, Greenpeace Mexico filed a lawsuit against the Mexican government contesting the constitutionality of two electricity sector policies that would limit renewables. Greenpeace Mexico asked the Administrative Court to declare the policies unconstitutional for violating the rights to a healthy environment and sustainable development and for obstructing Mexico’s compliance with its international commitments to tackle climate change. On June 23, 2020, the district court issued a preliminary injunction to suspend the effects of the contested acts. On November 17, 2020, the district court held its main hearing. The Court then issued its judgment that the public policies were unlawfully modifying the rules of the energy market, and were violating the right to a healthy environment for Mexicans. The government appealed the decision to the First Circuit Collegiate Tribunal. On September 1, 2022, the First Circuit Court in Administrative Matters Specialized in Antitrust, Broadcasting, and Telecommunications overturned the district court’s decision, denying the stay. The court concluded that the potential harms that could derive from the challenged regulations were contingent on the modification and amendment of other regulations. In this sense, the harm was not sufficiently immediate to grant the stay. Greenpeace v. Ministry of Energy and Others (on the Energy Sector Program 2020 and Electric Industry Law) (Circuit Court, Mexico)
French Courts Recognized French Climate Activists’ Action as Freedom of Expression
On February 21, 2019, actions of unhooking presidential portraits were launched simultaneously in Paris, Lyon, and the Basque Country (France). On this day, the activists of ANV-COP21 seized four official portraits of President Macron to denounce the climate inaction under his presidency. Brandishing banners that read “Climate, social justice: where is Macron?,” the activists then launched a call to multiply the campaign throughout the country. Arrests of climate protesters began the following day. On August 25, 2019, the “March of the portraits” for the climate brought together more than 900 people in Bayonne despite the ban on demonstrations during the G7. In the center of Bayonne, official portraits of President Macron sought by police forces resurfaced with the head facing down. Participants at a press conference conveyed a severe assessment of the Macron government’s climate policy and denounced the gap between his international speeches on climate and concrete actions in France. Nearly 100 journalists covered the march and the press conference given by several personalities and climate specialists.
Since the first demonstration, activists have taken 151 of Macron’s official portraits from city halls around the country, resulting in 86 searches and 1467 cumulative hours in police custody for 128 activists. Eighty-eight people were summoned in 56 trials, facing up to five years in prison and fines of up to 75,000 euros. Most of the demonstrators were discharged on the merits in the name of the state of necessity and freedom of expression. On September 22, 2021, the Court of Cassation rejected the state of necessity, but overturned the conviction of eight activists in Bordeaux, holding that unhooking presidential portraits can be a form of expression and that courts must justify that a conviction would not be a disproportionate infringement on freedom of expression. The court also recognized that DNA sampling of some activists was excessive for this type of non-violent action. Décrochons Macron (Lyon High Court, France)
Thailand Administrative Court Ordered Temporary Injunction on Omkoi Coal Mining Project
On April 4, 2020, representatives of Kaboedin village, located in Chiang Mai province of Thailand, filed a complaint against the approval of a coal mining operation project in the village. 99 Thuwanon Company purchased the villagers’ land coercively and applied for a concession certificate for a coal mining operation. Along with the application the company was required to provide an environmental impact assessment (EIA). The assessment was conducted in 2010, and the Expert Committee on EIA Consideration in the mining and extracting industry approved the EIA on August 16, 2011. The approval was later upheld by the Expert Committee on December 29, 2020. But the residents contended that there the process lacked local participation and that the EIA contained errors and inconsistencies regarding factual information, including forged signatures of the people. The representatives of Kaboedin village filed a complaint raising these issues. In pursuance of fighting against the coal mining project, the community has produced a comprehensive Community Health Impact Assessment (CHIA) to highlight the flaws in the problematic EIA with the help of several environmental and human rights organizations. The plaintiffs asked the court to revoke the concession request and the Expert Committee’s resolution upholding the coal mining project’s approval. They contended that the project’s approval violates the right to live in a good and safe environment and asked the court to order preparation of a new EIA with meaningful public participation. As part of the lawsuit, a request for a temporary injunction was also filed to suspend the activities through the approval. On September 23, 2022, the Administrative Court ordered temporary protection and suspended the activities of the coal mining project until final judgment from the court. The court reaffirmed the right to live in a good environment in the constitution and the 2022 UNGA resolution and recognized the right to meaningful participation in the community. Residents of Omkoi v. Expert Committee on EIA Consideration and the Office of Natural Resources and Environmental Policy and Planning (Chiang Mai administrative court, Thailand)
NEW CASES, MOTIONS, AND OTHER FILINGS
Kenyan NGOs and Citizens Allege Violation of Constitutional Rights in Connection with Recent Flooding of Lake Baringo
Members of Ilchamus and Tugen communities living on the shores of Lake Baringo in Kenya, together with Kituo cha Sheria (a Kenyan Human Rights NGO), have filed a climate change petition before the Environment and Land Court (ELC) in Iten. The petitioners allege a violation of several rights under the Constitution of the Republic of Kenya 2010 and seek to compel public officials to fulfill their duties under the Climate Change Act No. 11 of 2016 Laws of Kenya and other related constitutional rights under the Constitution of the Republic of Kenya 2010.
The petitioners assert that they are victims of climate change-related flooding which has caused massive displacement and loss of life and property. The petitioners contend that the flooding has been caused by hydrometeorological variables due to climate change. The petitioners seek 12 substantive orders, including a declaration that relevant government officials failed, refused, or neglected to take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse impacts; a declaration that relevant government officials failed, refused, or neglected to avert, minimize, and address effects of climate change suffered by petitioners; an order to compel relevant government officials to rehabilitate, relocate, and restore damaged infrastructure; an order for compensation for climate change damage; and an order for resettlement of flood victims. Iten ELC Petition No. 007 of 2022 - Legal Advice Centre T/A Kituo cha Sheria & Anor v. Attorney General and 7 Others (Environment Court, Kenya)
Greenpeace Filed Lawsuit Against North Sea Transition Authority’s Approval of Jackdaw Gas Field Development Project
In July 2022, Greenpeace filed a legal challenge against the North Sea Transition Authority’s (NTSA’s) approval of the Jackdaw gas field development project. The Jackdaw field is located in the North Sea, off the east coast of Scotland, and is owned by BG International, an affiliate of Shell UK Limited. Plans for the project were previously rejected on the grounds of potential environmental harm but were resubmitted by Shell this year. After the Offshore Petroleum Regulatory for Environment and Decommissioning (OPRED), the UK’s oil and gas regulatory agency, reviewed Jackdaw’s environmental statement and found that the project would not have a significant impact on the environment, NTSA approved the project. Greenpeace argues that the government failed to consider environmental impacts of Shell’s Jackdaw project by refusing to consider the damage caused by burning the gas extracted. Greenpeace claims that OPRED did not factor in the carbon dioxide emissions that would be produced by burning the gas extracted from Jackdaw in its impact assessment of the project, and therefore its approval should be revoked. According to media reports, the Department for Business, Energy and Industrial Strategy has stated that Jackdaw “will boost domestic gas supply in the years to come.” In these same reports, Greenpeace has countered that there is “no guarantee” that the gas produced from Jackdaw will be consumed in the UK and contribute to alleviating the UK’s current energy crisis, given that Shell is under no obligation to supply the UK with gas produced from the project. Further judicial proceedings are currently pending. Greenpeace v. North Sea Transition Authority (United Kingdom)