February 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 #155:

FEATURED CASE

D.C. Federal Court Vacated Gulf of Mexico Oil and Gas Lease Sale Due to Arbitrary and Capricious NEPA Analysis

On January 27, 2022, the federal district court for the District of Columbia vacated a lease sale for oil and gas production and development on 80.8 million acres in the Gulf of Mexico. After first rejecting arguments that the case was not ripe for judicial review, the court found that the Bureau of Ocean Energy Management (BOEM) had arbitrarily decided not to consider foreign oil consumption in its evaluation of greenhouse gas emissions of a no action alternative pursuant to the National Environmental Policy Act (NEPA). The district court noted that both the Ninth Circuit and the federal district court for the District of Alaska had previously found that the same analysis—which reached the “counterintuitive conclusion” that total greenhouse gas emissions would be higher if no lease sales took place even though the model predicted a decrease in foreign oil consumption in the absence of the lease sales—was arbitrary and capricious. In this case, the district court found that BOEM was required either to provide a quantitative estimate of downstream greenhouse gas emissions resulting from the reduced foreign consumption or to provide a more specific explanation of why it could not do so. The court also said BOEM’s argument that it could not have calculated the emissions was undercut by the inclusion of such an estimate in a draft environmental impact statement (EIS) for another lease sale a few weeks after releasing the record of decision for this lease sale. In addition, the court noted that a reasoned explanation was “especially crucial where, as here, the agency has varied so dramatically in its approach over the past year”—the Trump administration announced the lease sale in January 2021, the Biden administration rescinded it after President Biden took office, and then the Biden administration issued a new Determination of NEPA Adequacy based on the same NEPA analysis and reinstated the lease sale in August 2021 (after a federal court in Louisiana enjoined the Biden administration from implementing a “pause” on new oil and gas leasing in offshore waters). The court also found that the Determination of NEPA Adequacy was procedurally defective because BOEM could not rely on it “to cure the errors in the underlying EISs” identified by the Ninth Circuit and District of Alaska unless it circulated a draft for public comment. The court rejected the plaintiff’s contentions that certain new information required preparation of a supplemental EIS, including scientific studies regarding the need to keep global temperatures from rising more than 1.5 degrees Celsius and “the counterproductive role of oil and gas leasing to reaching that goal,” and evidence regarding potential conflicts between the lease sale and efforts to develop offshore wind. The court found that vacatur was the appropriate remedy because “the disruptive consequences of vacatur do not outweigh the seriousness of the NEPA error in this case and the need for the agency to get it right.”

Earlier in January, the court denied Chevron U.S.A., Inc.’s motion to intervene in the suit. Chevron was “the apparent high bidder on 34 tracts” in the lease sale. The court found that American Petroleum Institute adequately represented Chevron’s asserted interests and that the timing of Chevron’s intervention would be prejudicial to the existing parties. The court instead permitted Chevron to file its proposed motion for summary judgment as an amicus brief. The court also denied intervenor-defendant Louisiana’s motion to transfer the case to the Western District of Louisiana. The court found that the action could not have been brought in the Western District of Louisiana in the first instance. Friends of the Earth v. Haaland, No. 1:21-cv-02317 (D.D.C.)

DECISIONS AND SETTLEMENTS

Alaska Supreme Court Affirmed Dismissal of Young People’s Climate Case

In a split decision, the Alaska Supreme Court affirmed the dismissal of a lawsuit brought by young Alaskans alleging that the State of Alaska’s development of its natural resources contributed to climate change and violated the Alaska Constitution’s natural resources provisions as well as their individual constitutional rights. The Supreme Court held that the plaintiffs’ claims for injunctive relief—requests that the State stop implementing its statutory energy policy, prepare and complete and accurate accounting of Alaska’s carbon emissions, and develop an enforceable “climate recovery plan”—presented non-justiciable political questions. The Supreme Court found that the Superior Court had not erred by considering the requested relief as part of its political question analysis. The Supreme Court then followed its “sound precedent” in Kanuk—an earlier case brought by young people to compel climate action—to conclude that it could not make “the legislative policy judgments necessary to grant the requested injunctive relief.” The court further concluded that the plaintiffs’ declaratory relief claims did not necessarily present non-justiciable political questions but that the Superior Court had properly dismissed them on “prudential grounds” because they did not present an “actual controversy” that was “appropriate for judicial determination.” The Supreme Court again cited Kanuk. Although noting differences in this case, in which the plaintiffs asserted constitutional rights beyond the public trust doctrine and challenged past actions, as opposed to inaction, the Supreme Court concluded that neither distinction meant that declaratory relief “would settle the parties’ legal relations more fully than it would have in Kanuk.” The Supreme Court also upheld the Department of Environmental Conservation’s denial of the plaintiffs’ rulemaking petition, finding that the Department reasonably could conclude that the regulation sought “was inconsistent with the legislature’s statutory policies and thus outside its delegated authority.” Justice Maassen dissented, joined by Justice Carney, from the court’s “rejection of declaratory relief as serving no useful purpose.” The dissent stated the view that “a balanced consideration of prudential doctrines requires that we explicitly recognize a constitutional right to a livable climate.” Although the dissent agreed that the majority’s decision was consistent with Kanuk, Justice Maassen wrote that he was “no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the State’s corresponding duties in the context of climate change.” Justice Maassen would have found that the public trust doctrine in the Alaska Constitution provided a right to a livable climate. Sagoonick v. Alaska, No. S-17297 (Alaska Jan. 28, 2022)

D.C. Circuit Dismissed Challenges to Defunct Jordan Cove LNG Terminal Project

The D.C. Circuit Court of Appeals granted the Federal Energy Regulatory Commission’s (FERC’s) unopposed motion to dismiss proceedings challenging the Jordan Cove LNG Terminal and Pacific Connector Pipeline in Oregon and remand the record to FERC. As requested by FERC, the court ordered FERC to vacate authorizations for the project, consistent with FERC’s December 16, 2021 order, which vacated the authorizations subject to leave of the D.C. Circuit after the project’s developers informed FERC that they had decided not to move forward with the project because they had been unable to obtain necessary state authorizations. Evans v. Federal Energy Regulatory Commission, No. 20-1161 (D.C. Cir. Jan. 25, 2022)

Second Circuit Denied Tesla’s Request that It Activate Challenges to Penalty Increase Delay for CAFE Standards

On January 13, 2022, the Second Circuit Court of Appeals denied a motion by Tesla, Inc. to lift the abeyance and grant summary vacatur in proceedings challenging a January 2021 interim final rule that delayed an inflation adjustment to the civil penalty for violations of the Corporate Average Fuel Economy (CAFE) standards. Tesla filed the motion in August 2021, contending that removal of the cases from abeyance was warranted because the federal government had made “no tangible progress” in its review of the rule, which the government initially estimated would take six months. Tesla argued that the delays “significantly diminished” the value of credits “earned by over-performing companies like Tesla” and also affected the CAFE program’s stability, undermining “the public’s interest in cleaner air, climate protection, and energy conservation.” In its most recent status report to the court earlier in January 2022, the National Highway Traffic Safety Administration reported that it had submitted a draft final rule to the Office of Information and Regulatory Affairs for regulatory review. Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, Nos. 21-139, 21-339, 21-593 (2d Cir. Jan. 13, 2022)

North Carolina Federal Court Upheld Environmental Review for Toll Bridge, Rejecting Plaintiffs’ Sea Level Rise Arguments

The federal district court for the Eastern District of North Carolina found that the North Carolina Department of Transportation and the Federal Highway Administration (FHWA) complied with NEPA in connection with FHWA’s approval of a $600 million toll bridge across the Currituck Sound near North Carolina’s Outer Banks. Among the arguments rejected by the court was that the defendants “unfairly skewed” the comparison of the financial feasibility of the preferred alternative with an alternative that improved existing roads, including because the financial feasibility analysis unreasonably ignored the impact that sea level rise would have on future toll revenue. The court stated, moreover, that “[t]he equal impact of this environmental phenomena” on each of the alternatives “does not serve as a differentiator among the alternatives.” The court also rejected the plaintiffs’ contention that new information on rising sea level’s increased impact on the project’s viability over the next half-century required preparation of a supplemental EIS. The court found that this was “not a new circumstance that presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.” North Carolina Wildlife Federation v. North Carolina Department of Transportation, No. 2:19-cv-14 (E.D.N.C. Dec. 13, 2021)

Illinois Federal Court Dismissed Challenge to 75-Year Agreement for Chicago Metered Parking Operations

The federal district court for the Northern District of Illinois dismissed a lawsuit challenging an agreement in which the City of Chicago granted the defendant the exclusive right to operate and collect revenue from the City’s metered parking spaces for a 75-year period. The plaintiffs—who asserted federal antitrust claims and a claim under the Illinois Consumer Fraud Act—alleged, among other things, that the agreement was made “without regard for changes in transportation resulting from climate change and the imperative need to reduce greenhouse gas emissions.” The court found that the plaintiffs had standing based on alleged injuries from increased parking fees but that the state action immunity doctrine shielded the agreement from federal antitrust liability. The court declined to exercise supplemental jurisdiction over the state law claim. Uetricht v. Chicago Parking Meters, LLC, No. 1:21-cv-03364 (N.D. Ill. Jan. 24, 2022)

Illinois Federal Court Said Corps of Engineers Complied with NEPA and Other Federal Laws for Middle Mississippi River Project

The federal district court for the Southern District of Illinois rejected claims by National Wildlife Federation and other environmental groups that the U.S. Army Corps of Engineers failed to comply with NEPA and other statutes when the Corps approved the 2017 Regulating Works Project, which involves activities to maintain a navigation channel in the Middle Mississippi River. The court’s decision did not mention the plaintiffs’ climate change-specific arguments, which included that the final supplemental EIS failed to evaluate the project’s impacts in conjunction with climate change on the Middle Mississippi River’s “vital side channels.” The court concluded, however, that the Corps took a hard look at the science of whether the project would cause increased flooding and that the plaintiffs’ allegations concerning this issue and NEPA violations were “unpersuasive.” The court also found that the Corps did not violate the Water Resources Development Act, the Fish & Wildlife Coordination Act, or the 1927 Rivers & Harbors Act. National Wildlife Federation v. U.S. Army Corps of Engineers, No. 20-cv-00443 (S.D. Ill. Jan. 22, 2022)

Colorado Federal Court Approved Consent Decree in Clean Air Act Citizen Suit Against Coal Mine Operators

The federal district court for the District of Colorado approved and entered a consent decree resolving a citizen suit brought by environmental groups against the operators of the West Elk coal mine in Colorado for alleged violations of the Clean Air Act. The consent decree requires the defendants to continue to pursue a Title V operating permit for the mine and requires 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. Once the permit is issued, the consent decree requires the defendants to comply with the permit’s provisions for two years and to provide the plaintiffs with notice of any deviation from the permit’s requirements within 30 days of commencement of the deviation. The defendants also must 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-01342 (D. Colo. Jan. 18, 2022)

North Dakota Federal Court Declined to Order Biden Administration to Hold Lease Sales

In a lawsuit challenging the Biden administration’s pause on oil and gas leasing, the federal district court for the District of North Dakota denied without prejudice North Dakota’s requests that the court order the federal defendants to hold lease sales in 2021. The court agreed with the federal defendants that it could not enforce the nationwide preliminary injunction granted by the federal district court for the Western District of Louisiana barring implementation of a “pause” on federal oil and gas leasing. The North Dakota court also found that “the circumstances of this case are not so extraordinary as to require the extraordinary relief afforded by a writ of mandamus at this time.” The court said “a fully developed factual record” was necessary to resolve disagreements over whether the pause on oil and gas lease sales was necessary to overhaul the NEPA analysis in response to court decisions by the district court in the District of Columbia. The court found that the request that the defendants hold all past and future sales was premature and also noted that the defendants had provided assurances that the process to start oil and gas leasing sales in North Dakota was imminent. North Dakota v. U.S. Department of the Interior, No. 1:21-cv-00148 (D.N.D. Jan. 14, 2022)

Wisconsin Federal Court Said Authorizations for Transmission Line Violated NEPA and Refuge Act

The federal district court for the Western District of Wisconsin ruled that federal defendants acted arbitrarily and capriciously when they approved a right of way or land transfer through the Upper Mississippi River National Wildlife and Fish Refuge to allow construction of a transmission line. The court said the transmission line could not be deemed compatible with the refuge under the National Wildlife Refuge System Improvement Act of 1997. The court also found that the federal defendants failed to comply with NEPA because the stated purpose for the project had been stated too narrowly so that it eliminated, for example, non-wire alternatives such as regional and local renewable electricity generation, energy storage, and energy efficiency. The court’s decision did not discuss the plaintiffs’ allegations that the federal defendants failed to adequately consider the project’s greenhouse gas emissions and potential climate impacts. National Wildlife Refuge Association v. Rural Utilities Service, No. 3:21-cv-00306 (W.D. Wis. Jan. 14, 2022)

Federal Court Vacated Denial of Petition to List Yellowstone Bison as Endangered or Threatened

The federal district court for the District of Columbia vacated and remanded the U.S. Fish and Wildlife Service’s (FWS’s) 2019 denial of a petition to list the Yellowstone bison as endangered or threatened under the Endangered Species Act. In 2018, the court remanded the denial of earlier petitions to list the Yellowstone bison, finding that the FWS “applied an inappropriately heightened standard to the evaluation” of whether to initiate a listing proceeding “[b]y picking between two opposing views in an ongoing scientific dispute.” In its review of the 2019 denial, the court similarly concluded that the FWS’s 90-day finding rejecting the listing petition “fails to comport with the governing evidentiary standard at the 90-day stage and disregards an important aspect of the issue that was before it” because the finding again failed to credit a peer-reviewed study submitted by the petitioners and did not offer a “reasoned explanation” for its choice. The court noted that the plaintiffs raised “an array of challenges” to the FWS’s decision on remand—including an alleged failure to adequately analyze the foreseeable risk of climate change to the Yellowstone bison—but that most of the challenges related to the application of the incorrect evidentiary standard. Buffalo Field Campaign v. Williams, No. 1:20-cv-00798 (D.D.C. Jan. 12, 2022)

Illinois Appellate Court Vacated Approval of New Pipeline Pumping Stations but Rejected Climate Change Arguments

The Illinois Appellate Court vacated the Illinois Commerce Commission’s approval of the addition of three pumping stations on the Dakota Access Pipeline to increase the pipeline’s throughput from 570,000 barrels per day to 1.1 million barrels per day. The court, however, rejected a number of the arguments raised by environmental groups challenging the approval, including their contentions that the Commission failed to discuss the Illinois governor’s 2019 executive order on climate change or a brief submitted by Illinois and other states in a federal challenge to the pipeline that cited the “devastating effects of a changing climate.” The groups also said the Commission had entirely ignored the testimony of the climatologist James Hansen, in which he warned of the proposed pumping stations’ climate impacts. The court noted that its standard of review was deferential and that the Commission had not made conclusions “against the manifest weight of the evidence” when it determined that the additional crude oil would reach a destination and be consumed “one way or another” and that transporting oil by pipeline was better for the climate than transporting by locomotive. Save Our Illinois Land v. Illinois Commerce Commission, No. 4-21-0008 (Ill. App. Ct. Jan. 12, 2022)

Colorado Court Ordered Agencies to Act on Permit Renewals for Refinery

In a suit to compel Colorado agencies to act on Title V permit renewal applications for a refinery that is allegedly the largest non-coal source of greenhouse gas emissions in Colorado, a Colorado District Court granted in part WildEarth Guardians’ request for partial summary judgment and ordered the agencies to take action on the permit renewal applications “without further delay.” WildEarth Guardians v. Colorado Department of Public Health & Environment, No. 2021CV30213 (Colo. Dist. Ct. Jan. 10, 2022)

California Court Issued Mixed Ruling on Whether Law Professors Could Withhold Email Correspondence Under Public Records Act

In a lawsuit brought to compel disclosure under the California Public Records Act of certain correspondence of two UCLA environmental law professors, a California Superior Court ruled that the respondent was not required to disclose correspondence related to pre-publication academic research but found that the respondent had not met its burden to prove that it properly withheld other records. The party that sought the correspondence alleged that the records sought were related to recent climate litigation by municipalities and state attorneys general against energy companies and that the correspondence had been requested “for the purpose of understanding how state institutions are involved, if at all, in the larger effort feeding this litigation industry.” The court found the record to be inadequate to establish that the following categories of correspondence were properly withheld: pre-decisional internal discussions regarding how to raise funds from private sources; correspondence that contained “purely personal conversation,” including with a major donor; correspondence in the professors’ capacities as board members of unaffiliated environmental organizations. The court found that there was at least some reasonable probability that the respondent could meet its burden through submittal of more specific supplemental declarations regarding the withheld documents. Government Accountability & Oversight, P.C. v. Regents of the University of California, No. 20STCP01226 (Cal. Super. Ct. Jan. 20, 2022)

California Court Allowed Environmental Group to Proceed with Claims that CalGEM Evaded CEQA When Approving Oil and Gas Permits

A California Superior Court denied motions by the California Geological Energy Management Division (CalGEM) and the oil and gas industry groups for judgment on the pleadings in a case brought by Center for Biological Diversity (CBD) alleging that CalGEM engaged in a pattern and practice of approving oil and gas permits without reviewing their impacts under the California Environmental Quality Act (CEQA). The court said CBD could pursue relief in an action for declaratory relief, that the complaint adequately alleged that CalGEM “has a consistent pattern or practice that might be unlawful,” and that the complaint would not circumvent CEQA requirements. Center for Biological Diversity v. California Geologic Energy Management Division, No. RG21090952 (Cal. Super. Ct. Dec. 22, 2021)

NEW CASES, MOTIONS, AND OTHER FILINGS

Respondents Urged Supreme Court to Affirm D.C. Circuit’s Decision Vacating the Affordable Clean Energy Rule

Respondent briefs and supporting amici briefs were filed in the U.S. Supreme Court to urge the Court to affirm the D.C. Circuit’s January 2021 decision that vacated the U.S. Environmental Protection Agency’s (EPA’s) Affordable Clean Energy Rule (ACE Rule) for greenhouse gas emissions from existing power plants. The D.C. Circuit held that the ACE Rule—which repealed the Obama administration’s Clean Power Plan and adopted a replacement rule that relied only on heat-rate improvements at individual plants—rested on an erroneous interpretation of the Clean Air Act that barred EPA from considering measures beyond those that apply “at and to” an individual source. Oral argument in the cases has been set for Monday, February 28, 2022.

• EPA argued that the petitioners lacked standing to invoke the Court’s jurisdiction because the D.C. Circuit’s vacatur of the ACE Rule “and the consequent absence of any currently application … regulation of greenhouse-gas emissions from existing power plants” did not harm petitioners. EPA contended that the petitioners sought an advisory opinion regarding what measures a future rule could contain. EPA further argued that the ACE Rule’s reading of the Clean Air Act was erroneous. In addition, EPA argued that there was no merit to the petitioners’ argument that the issue of determining what measures EPA may consider in determining the Best System of Emission Reduction (BSER) involved a major question and that “outside-the-fenceline” measures required specific congressional authorization.
• State and municipal respondents’ brief focused on the ACE Rule’s “overly restrictive reading” of the BSER and also argued that the case “does not resemble those in which this Court has found that an agency exceeded its core regulatory mission and decided major questions that Congress did not intend it to address.” They also contended that “without any extant rule that concretely affects petitioners,” concern regarding the EPA taking action that raised a major question outside its authority was “purely speculative.”
• Non-governmental organization and trade association respondents argued that the cases were not justiciable because the petitioners did not establish standing since they were not subject to any obligations under the Clean Power Plan or other regulation, and also because any future regulation EPA might adopt could not be reviewed until after its final promulgation. In addition, they argued that the Clean Air Act did not contain the ACE Rule’s restriction on the BSER, and that reliance on major questions principles was “misplaced” and, moreover, would not change the outcome because the Court held in American Electric Power Co. v. Connecticut that Section 111 of the Clean Air Act “speaks directly” to power plant emissions of carbon dioxide and assigns EPA to decide whether and how to regulate them. They also argued that North Dakota’s arguments that EPA lacked authority to set binding emission guidelines were not properly before the Court and were meritless.
• Power company respondents argued against the application of the major questions doctrine and also argued that the Clean Air Act did not limit EPA to considering only measures applied “at and to” an individual plant in determining the BSER. In addition, the power company respondents rebutted arguments that it was necessary to interpret Section 111 narrowly to avoid violation of the nondelegation doctrine.

Fifteen amici briefs were submitted by (1) a group of climate scientists; (2) Thomas C. Jorling, who worked on the drafting of the Clean Air Act; (3) four senators, led by Sheldon Whitehouse; (4) a bipartisan group of eight former commissioners of the Federal Energy Regulatory Commission; (5) a group of former power industry executives; (6) Edison Electric Institute and National Association of Clean Water Agencies; (7) a constitutional history scholar from the University of Michigan Law School; (8) 16 companies, including Apple Inc., Amazon.com Inc., and Siemens Corporation; (9) four “engineers with expertise in the operation, structure, economics, and reliability of the U.S. power system”; (10) a professor of environmental and administrative law at New York University School of Law; (11) 192 members of Congress; (12) National Parks Conservation Association; (13) Public Citizen; (14) National League of Cities and the U.S. Conference of Mayors; and (15) “leading physician-member public health organizations, as well as deans, directors, and chairs of public health schools across the country.” The State of Virginia submitted a letter to the Court to explain that it had not joined in the state and municipal respondents’ brief because following the change in administration in January 2022, the new attorney general had reconsidered Virginia’s position in the case and was “no longer of the view that EPA’s repeal of the [Clean Power Plan] was unlawful.” Virginia said it now supported the petitioners’ arguments. West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, and 20-1780 (U.S.)

Ninth Circuit to Hear Oral Argument on Remand Orders in Honolulu and Maui Cases; Third Circuit Appeals Proceeded in Hoboken and Delaware Cases

• Oral argument was set for February 17 in appeals of the remand orders in the Honolulu and Maui cases. City & County of Honolulu v. Sunoco LP, 21-15313 (9th Cir.)
• On January 14, 2022, briefing was completed in fossil fuel industry defendants’ Third Circuit appeal of the remand order in the City of Hoboken’s case. City of Hoboken v. Exxon Mobil Corp., No. 21-2728 (3d Cir. Jan. 14, 2022)
• Fossil fuel industry defendants appealed the remand order in Delaware’s case to the Third Circuit and also filed a motion in the district court to stay execution of the remand order pending appeal. In an oral order on January 21, the district court ordered that the defendants’ emergency motion to stay the remand order was moot since the Clerk of Court had not remanded the case to Delaware Superior Court and the defendants had filed their motion to stay. Delaware filed its opposition to the stay motion on January 25, arguing that the defendants’ chance of success on appeal was “negligible at best” and that the defendants did not face irreparable harm in the absence of a stay, while potential harm to Delaware and the public interest weighed “decisively” in favor of denying a stay. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. Jan. 21, 2022), No. 22-1096 (3d Cir.)

Fishing Industry Group Challenged Vineyard Wind Project

A nonprofit corporation with members from major fishing associations, dealers, seafood processors, affiliated businesses, and fishing vessels filed a lawsuit in the federal district court for the District of Columbia challenging Bureau of Ocean Energy Management approvals for the Vineyard Wind offshore wind project off the coasts of Massachusetts and Rhode Island. The plaintiffs asserted that the federal defendants failed to comply with the Outer Continental Shelf Lands Act, Clean Water Act, Endangered Species Act, NEPA, Marine Mammal Protection Act, Merchant Marine Act of 1920, and Administrative Procedure Act. The complaint’s climate change-related allegations included that the EIS for the project did not sufficiently evaluate the project’s impacts on greenhouse gas emissions and climate change, including because it quantified only emissions offsets from the project and included limited information about construction emissions and no information about supply chain emissions. The complaint also alleged a failure to compare the project’s climate benefits with alternative renewable energy sources or alternative locations or designs, and that there was no “cumulative-level analysis of climate impacts (positive or negative) associated with the proposed scale of offshore wind development.” Regarding its Outer Continental Shelf Lands Act claim, the complaint alleged a violation of the “protection of the environment requirement,” including because more frequent and intense tropical storms due to climate change could lead to “catastrophic release” of oil and other contaminants from the wind turbine generators. Responsible Offshore Development Alliance v. U.S. Department of the Interior, No. 1:22-cv-00237 (D.D.C., filed Jan. 31, 2022)

Gas Plant Operator Said New York Unlawfully Denied Permit for New Plant

The operator of a natural gas-fired power plant in New York filed a lawsuit challenging the New York State Department of Environmental Conservation’s (DEC’s) denial of its application to modify a Title V air permit to construct and operate a new, more efficient electricity generating plant. The operator contended that DEC unlawfully based the denial on “general provisions” of the Climate Leadership and Community Protection Act (CLCPA), which was enacted in 2019. The operator asserted that DEC’s interpretation of the CLCPA as barring a new plant on the site of an existing plant because it would result in greenhouse gas emissions that do not currently exist would effectively impose a ban on issuance of all Title V permits for new or repowered greenhouse gas-emitting electricity generation sources. The operator argued that the CLCPA did not authorize such a ban and that, even if it did, DEC had established and applied a de facto new rule without complying with requirements of the New York State Constitution and the State Administrative Procedure Act. In addition, the operator claimed that denial of the permit violated its due process rights and was arbitrary and capricious. Danskammer Energy, LLC v. New York State Department of Environmental Conservation, No. 8396/2021 (N.Y. Sup. Ct., filed Dec. 23, 2021)

Lawsuit Alleged that New Information on Oil Drilling’s Exacerbation of Climate Change Triggered Duty to Reinitiate Endangered Species Act Consultation

In a lawsuit filed in the federal district court for the Central District of California, Center for Biological Diversity challenged the alleged failure of federal agencies to comply with the Endangered Species Act (ESA) and Administrative Procedure Act (APA) in connection with the authorization and management of offshore oil and gas activities in federal waters off California. CBD claimed that a 2017 determination that the activities were not likely to adversely affect certain endangered and threatened whales, turtles, fish, and other species or their critical habitat was arbitrary, capricious, an abuse of discretion, and not in accordance with the ESA and its procedures. CBD also claimed that the agencies violated the ESA and APA by failing to reinitiate and complete consultation despite “new evidence of impacts from [offshore oil and gas production and development activities] in a manner or to an extent not previously considered.” As one type of new information that allegedly triggered the duty to reinitiate consultation, the complaint cited new studies regarding the impact of oil and gas drilling on climate change, “which is already threatening many species with extinction.” The complaint cited a study that estimated that “every barrel of federal oil left undeveloped would result in nearly half a barrel reduction in net oil consumption, with associated reductions in greenhouse gas emissions” and a second study that confirmed the first study’s findings for California. Center for Biological Diversity v. Haaland, No. 2:22-cv-00555 (C.D. Cal., filed Jan. 26, 2022)

Radio Host Sought to Compel Release of Congressional Records on Alleged Consultant Staffing for Investigation of Fossil Fuel Companies

A radio host filed a lawsuit in federal district court in the District of Columbia against House Speaker Nancy Pelosi and the Clerk and Chief Administrative Office of the U.S. House of Representatives alleging that they violated his common law right of access to public records by failing to release records related to the House Oversight and Reform Committee’s investigation of what the Committee referred to as the “reported role of the fossil fuel industry in a long-running, industry-wide campaign to spread disinformation about the role of fossil fuels in causing global warming.” The plaintiff alleged that media reports said the investigation work was being conducted by consultants paid by private donors in violation of statute and House Rules. He alleged that he had requested records related to individuals who allegedly had been identified as providing assistance to the investigation. The plaintiff alleged that the defendants had not produced requested records or acknowledged his requests and sought both declaratory and mandamus or injunctive relief. Schilling v. Pelosi, No. 1:22-cv-00162 (D.D.C., filed Jan. 24, 2022)

Organizations Cited Failure to Consider Climate Impacts in Challenge to Expansion of Ranching in Point Reyes National Seashore and Golden Gate National Recreation Area

Three organizations filed a lawsuit in the federal district court for the Northern District of California challenging the National Park Service’s adoption of a General Management Plan amendment that expanded lands open to beef and dairy ranching within Point Reyes National Seashore and Golden Gate National Recreation Area. The complaint asserted violations of the Point Reyes Act, the National Park Service’s Organic Act, NEPA, the Clean Water Act, and the Administrative Procedure Act. In support of the NEPA claim, the plaintiffs alleged that the EIS “provided little information about the expected impacts of climate change and largely ignored how ranching will exacerbate these effects,” including expected exacerbation of water quality and water quantity problems. Resource Renewal Institute v. National Park Service, No. 4:22-cv-00145 (N.D. Cal., filed Jan. 10, 2022)

Group Said Landfill’s Operations Violated New York’s New Environmental Rights Amendment

A local environmental group filed a lawsuit alleging that the operation of the High Acres Landfill in the Towns of Perinton and Macedon violated the group’s members’ rights to clean air and a healthy environment under the New York Constitution’s new “Green Amendment” or “Environmental Rights Amendment,” which states that “[e]ach person shall have a right to clean air and water, and a healthful environment.” The defendants are New York State, DEC, New York City (which sends waste to the landfill), and Waste Management of New York, L.L.C. The plaintiff’s cause of action was grounded in part in allegations regarding the landfill’s greenhouse gas emissions and impacts on climate change. The complaint alleged that methane emitted from the landfill was estimated to be “the equivalent to the GHG emissions from 3,267,425,411 miles driven by an average passenger vehicle, or 146,293,092 gallons of gasoline consumed, or 1,436,986,484 pounds of coal burned.” The complaint also alleged that many methane leaks were not being identified or repaired and that “numerous undocumented GHGs are being emitted to the atmosphere and contribute to the Member’s and Community’s unclean air and unhealthful environment.” The plaintiff asked the New York Supreme Court to issue an injunction directing the immediate closure of the landfill or, alternatively, to order the defendants to immediately abate the odors and fugitive emissions in the committee through installation of a permanent cover and daily monitoring. The plaintiff also contended that the landfill current operation “runs counter to the GHG emission reduction goals in the CLCPA.” Fresh Air for the Eastside, Inc. v. New York, No. E2022000699 (N.Y. Sup. Ct., filed Jan. 28, 2022)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

European Court of Justice Ruled on EU Framework for Motor Vehicles

In 2007, the European Union (EU) legislature established a harmonized framework (Directive 2007/46) for the approval of motor vehicles to facilitate their registration, sale, and entry into service in the EU. The European Commission adopted Regulation 2016/646, which sets up a procedure for testing the real driving emissions of certain motor vehicles to better reflect the emissions measured on the road and which is supplemented by Commission Regulation 2016/646, which establishes limits for emissions not to be exceeded during tests. In June 2016, the City of Paris, the City of Brussels, and the Municipality of Madrid brought an action before the General Court to annul Regulation 2016/646. The cities argued that the regulation would prevent them from imposing restrictions on the circulation of passenger vehicles in relation to their air pollutant emissions. In 2018, the General Court partially upheld the actions and considered the regulation a regulatory act which does not entail implementing measures and which directly affects the cities’ powers to regulate the circulation of motor vehicles. In February 2019, the Commission appealed to the European Court of Justice (ECJ).

On January 13, 2022, the ECJ set aside the judgement of the General Court. The ECJ clarified that for the applicants to be directly concerned by the regulation two conditions must be met: (i) the contested measure must directly affect the legal situation of the applicant, and (ii) it must leave no discretion to the entity entrusted with the implementation. The ECJ held that the General Court erred when it stated that the cities were prevented from exercising their powers to regulate the circulation of passenger vehicles to reduce pollution. The ECJ also mentioned that the obligations Directive 2007/46 imposes on Member States only concern placing motor vehicles on the market and not their subsequent use. Moreover, the cities are not liable to infringe on Directive 2007/46 (read together with Commission Regulation 2016/646) solely by adopting environmental protection legislation to limit the local circulation of certain vehicles. Through its judgment, the ECJ clarified that local governments do not violate the EU framework for testing real driving emissions when they adopt low-emission zones. Federal Republic of Germany and Others v. Ville de Paris and Others (European Court of Justice)

DECISIONS & SETTLEMENTS 

UK High Court Found Government’s Oil and Gas Strategy to Support Exploitation of North Sea Reserves to Be Permissible

On May 12, 2021, three climate activists, Jeremy Cox, Mikaela Loach, and Karin Van Sweeden (the Claimants) brought a legal challenge in relation to the adoption of the UK Government’s new Oil and Gas Strategy (the Strategy). The strategy sets out plans to support ongoing efforts to exploit North Sea oil and gas reserves. Under the Petroleum Act 1998, the Strategy needs to ensure the maximization of the “economic recovery of UK petroleum.” On January 18, 2022, the High Court gave judgment, rejecting the Claimants’ two grounds of challenge and dismissing their claim.

The first of the two grounds alleged error of law and/or frustration of statutory purpose. The Claimants argued that by ignoring the effect of government-backed financial support, the Strategy has stretched the definition of “economically recoverable” too wide, endangering the UK’s ability to meet its net zero target. The main issue was therefore whether the Oil and Gas Authority’s (OGA’s) definition of “economically recoverable” in its Strategy was consistent with the statutory term “maximizing the economic recovery of UK petroleum” or whether it frustrates the statutory purpose. The High Court concluded that the court will afford “considerable deference” to the OGA’s expert view as regulator, and that Parliament, when enacting the legislation, did not intend for the court (rather than the expert regulator) to determine the best method of economic assessment. The second ground alleged the OGA’s approach was irrational given the UK Government’s net zero target and statements made by the OGA in relation to that target. The High Court rejected the Claimants’ arguments and found the OGA’s approach permissible. R (oao Cox & Others) v Oil and Gas Authority & Others (“Paid to Pollute case”) (UK, High Court of Justice, Queen’s Bench Division)

UK Court of Appeal Gave Extinction Rebellion Protester a Four-Month Sentence

On October 10, 2019, a group of at least 10 Extinction Rebellion protesters launched a protest at London City Airport. Their purpose was to cause disruption in order to draw attention to the contribution of air travel to climate change. The group included James Hugh Brown, a former Paralympic champion, who glued himself to the top of a commercial passenger aircraft. For this, he was convicted by the Crown Court for public nuisance and imprisoned for 12 months. He appealed both conviction and sentence. On January 14, 2022, the Court of Appeal gave judgment, dismissing the appeal against conviction but allowing the appeal against sentence and substituting a four-month term of imprisonment. Rejecting Mr. Brown’s arguments that the conviction was a breach of his human rights, the Court held that the concept of abuse of process in a criminal case is the creature of domestic law and does not turn on any issue under the European Convention on Human Rights or the Human Rights Act 1998. The Court considered jurisprudence from the European Court of Human Rights on when a custodial sentence might be appropriate in the context of peaceful protest amounting to public nuisance. It agreed with the court below that Mr. Brown’s offending passed the custody threshold. However, taking into account his conduct (including that this was a peaceful protest), his previous convictions, and his disability, it held the 12-month sentence was manifestly excessive, and substituted a four-month sentence. R. v Brown (Extinction Rebellion protest, London City Airport) (UK, Appellate Court (Criminal Division)

French Court of Cassation Confirmed Jurisdiction of Nanterre Judicial Court to Hear Case Against Total

Six nongovernmental organizations have sued energy company Total over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project’s threats to human rights and the environment. These organizations claimed that Total did not take into account the social and environmental impacts of the oil project located on the shores of Lake Albert, in western Uganda, and the 1,445 km pipeline that will export fossil fuel by crossing part of the country and then Tanzania to reach the port of Tanga, on the Indian Ocean. The plaintiffs also argue that Total’s vigilance plan does not properly account for the project’s potential life cycle greenhouse gas emissions. Total rejected the allegations and argued that the court in which the case was filed was not competent. In 2020, the Nanterre Judicial Court ruled that it was not competent to hear the case—per Total’s argument—and that it must be brought before a commercial court. The judgement was confirmed by the Court of Appeal of Versailles in December 2020. On December 15, 2021, the Court of Cassation overturned the judgment of the Versailles Court of Appeal and recognized the competence of the Nanterre Judicial Court. The Court of Cassation recalled that (i) companies’ duty of vigilance does not constitute a commercial act and (ii) a natural person plaintiff can bring a claim against a legal entity before the judicial court or the commercial court. Friends of the Earth et al. v. Total (France, Versailles Court of Appeal and Court of Cassation)

French Climate Activists Acquitted as Measures Were Justified as a “State of Necessity”

On October 3, 2020, hundreds of environmental activists gathered in front of Paris Charles de Gaulle airport to protest the construction of a new terminal. Eighty-four of them illegally entered the tarmac and stood in front of a plane on the ground, in a parking area. The ADP Group (Paris Airports) filed a claim against the activists for disturbing the operation of airport facilities. The prosecutor requested sentences of one to three months suspended jail term (i.e., the sentence will be part of their criminal record, but they will not serve any jail term unless they do a similar act within that period). On November 12, 2021, the court acquitted the activists. The court found that the activists acted to raise awareness about the adverse effects of climate change. As such, the measures were justified as a “state of necessity.” Climate activists v. Paris Airports (France, Tribunal Correctionnel)

Hearing Held on UK Case for Financing of LNG Project in Mozambique

In September 2020, Friends of the Earth England Wales and Northern Ireland (FoE EWNI) brought a legal challenge against UK Export Finance’s decision to provide over $1 billion of UK taxpayers’ money to help finance a liquefied natural gas (LNG) project off the coast of Mozambique. Through the project, the energy company Total (an interested party) aims to extract 43 million tonnes of LNG per year for 32 years. This will result in total combustion emissions of 4.3 billion tonnes of CO2e, more than the total annual emissions for all 27 countries within the EU.

The claim was heard in December 2021, with judgment reserved. At the hearing FoE EWNI argued the Decision was unlawful because (i) it was not consistent with a pathway to low greenhouse gas emissions and climate resilient development; (ii) undermines Mozambique in achieving its nationally determined contribution; (iii) fails to take into account several relevant considerations, including failure to quantify scope 3 emissions and failure to assess climate impacts, among others. FoE EWNI sought a declaration that the Decision was reached on the basis of an erroneous understanding that the Project and its financing were compatible with the UK’s obligation under the Paris Agreement and an order quashing the Decision. The High Court’s judgment is expected in early 2022.

NEW CASES, MOTIONS, AND OTHER FILINGS

Three New Cases Brought in Argentina Questioning an Offshore Fossil Fuel Exploration Project

On December 30, 2021, Argentina’s Ministry of Environment and Sustainable Development published Resolution 436/2021 approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. Three of these lawsuits are partially grounded on climate concerns.

On January 7, 2022, the NGO Organización de Ambientalistas Organizados sued the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. Initially, the claim was framed as a habeas corpus claim for the protection of the Southern Right Whale and its habitats. However, after the dismissal of the claim by the Federal Court, the Court of Appeal admitted it and asked for its conversion into a constitutional collective action (amparo ambiental colectivo). The main focus of the new claim remained the protection of the Southern Right Whale, but also introduced concerns regarding the climate impacts of the project. On January 14, 2022, the claim was combined by the Federal Court of Mar del Plata N. 2 with another lawsuit (Godoy, Ruben v. Estado Nacional) not grounded on climate concerns. Organización de Ambientalistas Organizados v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata No. 2)

On January 13, 2022, the Mayor of the City of Mar del Plata filed a constitutional collective action against the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. Among other concerns regarding access to environmental information and participation in the decision-making process, the claim mentions that the project undermines Argentina’s international climate commitments and that there is regulatory incoherence between the project and the climate pledges at the national and international level. Guillermo Tristan Montenegro v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata No. 2)

On January 13, 2022, a group of NGOs filed a constitutional collective action (amparo colectivo ambiental) against the Argentinian National State and the Ministry of Environment and Sustainable Development for its approval of the offshore exploration activities. This case presents the climate impacts of the projects as the main grounds for its claims. Among other arguments, plaintiffs state that the project breaches national and international climate commitments and affects intergenerational equity, that the Nationally Determined Contribution to the Paris Agreement is insufficient, and that the State is responsible not only for emissions within its territory but also for emissions arising from future fossil fuels exports. The plaintiffs argue that the Environmental Impact Assessment is flawed because it did not consider climate impacts. Greenpeace Argentina et. al., v. Argentina et. al. (Argentina, Federal Court of Mar del Plata No. 2)

New Climate-Washing Case Brought in Denmark

At the end of May 2021, three Danish NGOs filed a suit against Danish Crown, the EU’s largest pork producer, claiming that the company is misleading consumers through its campaign that claims its pork production is “climate controlled” and that the pork is “more climate friendly than you would think.” The claimants allege that Danish Crown is misrepresenting its climate footprint and is in violation of the Marketing Act. In January 2022, the court proceedings began in the Western High Court. The court has found that the case is “of a principle nature and has a general signification for the application of and development of the law.” Danish Crown had argued to have the case heard in the Maritime and Commercial Court, which the court has denied. Vegetarian Society et al. of Denmark v Danish Crown (Denmark, Western High Court)