February 2024 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 #179:

Federal Court Let Consumers Continue with Claims that Evian Water Was Misleadingly Marketed as “Carbon Neutral”

The federal district court for the Southern District of New York allowed consumer plaintiffs to proceed with claims based on their allegations that the defendant manufacturer made false and misleading claims that evian water is “carbon neutral.” The court concluded that it could not determine as a matter of law that the term “carbon neutral” did not have the capacity to mislead. The court found that the term was “a technical word not within an average consumer’s common parlance and carrying multiple meanings” and that it was plausible that the term could mislead a reasonable consumer. The court also found that “carbon neutral” was the type of the “general environmental benefit claim” that the Federal Trade Commission’s Green Guides warn against; that the plaintiffs’ allegations regarding consumer confusion were sufficient; and that the defendant “expects too much” from consumers when it directs them beyond the label to websites to learn what “carbon neutral” means. The court therefore declined to dismiss claims under the Massachusetts consumer protection statute and the California Consumers Legal Remedies Act. The court also found that the plaintiffs’ allegations that they paid a price premium based on the alleged misrepresentation was sufficient to allege an injury. In addition, the court allowed the plaintiffs to proceed with a fraud claim, and with breach of express warranty and unjust enrichment claims under California law. The court dismissed claims under Sections 349 and 350 of New York’s General Business Law without prejudice because the plaintiffs did not allege they were deceived in New York. The court also dismissed an implied warranty claim under California law and an express warranty claim under Massachusetts law without prejudice. Dorris v. Danone Waters of America, No. 22-cv-8717 (S.D.N.Y. Jan. 10, 2024)

DECISIONS AND SETTLEMENTS

Montana Supreme Court Declined to Stay Judgment for Youth Plaintiffs in Climate Case Against State of Montana

The Montana Supreme Court found that the trial court did not abuse its discretion when it denied the State of Montana and other State appellants’ (State’s) motion to stay the trial court’s judgment that youth plaintiffs’ rights under the Montana Constitution were violated by a provision of the Montana Environmental Policy Act (MEPA) that prohibited consideration of greenhouse gas emissions and climate change in environmental reviews. The Supreme Court found that the State did not meet its burden of demonstrating good cause for relief from the denial of the stay. Regarding the first factor for a stay—whether the stay applicant has made a strong showing that it is likely to succeed on the merits—the Supreme Court noted that the State had not made an argument to support its contention that the State “only needed to demonstrate that the case involves novel and unsettled legal questions.” Regarding the second factor concerning irreparable harm to the State, the Supreme Court found that the State did not explain “why it believes it would be exceedingly burdensome to reimplement methods for greenhouse gas and climate impacts analysis when it had previously done so” in MEPA reviews. The Supreme Court also found that the trial court did not abuse its discretion by failing to address whether enjoining a state from enacting legislation constitutes irreparable harm, an argument the State did not make before the trial court. Regarding the third factor, which concerns harms to other parties, the Supreme Court noted that the State did not address the trial court’s reasoning that loss of a constitutional right constitutes an irreparable injury and instead argued that the plaintiffs would not suffer harm because the State would continue to issue permits for fossil fuel projects regardless of whether a stay was in place. The Supreme Court said this failed to meet the State’s burden of showing abuse of discretion. With respect to the fourth factor—where the public interest lies—the Supreme Court found that where each side asserted “a valid public interest,” it could not conclude that the trial court abused its discretion. Two justices would have granted the motion for stay. The State appellants’ opening brief is due by February 13, 2024. Held v. State, No. DA 23-0575 (Mont. Jan. 16, 2024)

Ninth Circuit Denied Injunction on Willow Project; Briefing Completed on Expedited Appeal

On December 18, 2023, the Ninth Circuit Court of Appeals denied motions for injunctive relief pending the plaintiffs’ appeal of a District of Alaska decision rejecting their challenges to federal approvals of the Willow oil and gas project. The plaintiffs had asked the Ninth Circuit to enjoin approvals of the project to prevent construction and gravel mining activities from occurring. The denial of the motions was without prejudice to renewal of the motions before the merits panel. The Ninth Circuit also set an expedited briefing schedule, with initial briefs due on December 29. Both sets of plaintiffs filed new motions for injunctive relief pending appeal on that date, along with their opening briefs. Briefing was completed on January 22, 2024. The plaintiffs’ arguments on appeal include that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) by failing to consider a reasonable range of alternatives and failing to assess downstream emissions from reasonably foreseeable development. They also argue that the federal defendants violated the Endangered Species Act by failing to consult on the impacts that Willow’s greenhouse gas emissions would have on ringed and bearded seals and polar bears. Sovereign Iñupiat for a Living Arctic v. U.S. Bureau of Land Management, Nos. 23-3627, 23-3624 (9th Cir.)

Federal Government Dropped Appeal of District Court’s Rejection of Determination Not to Designate Critical Habitat for Endangered Bee

The D.C. Circuit Court of Appeals granted federal defendants’ motion for voluntary dismissal of their appeal of an August 2023 district court decision vacating the U.S. Fish and Wildlife Service (FWS) decision not to designate critical habitat for the rusty patched bumble bee. The district court found that FWS “did not set forth a reasoned basis for its decision not to designate critical habitat for the rusty patched bumble bee under the not-prudent standard set forth in the Endangered Species Act.” The federal government’s motion did not discuss reasons for the voluntary dismissal. The plaintiffs in the suit alleged that the endangered bee faced extinction due to threats that included habitat loss and destruction, pesticide use, and climate change. Natural Resources Defense Council, Inc. v. U.S. Fish & Wildlife Service, No. 23-5227 (D.C. Cir. Jan. 23, 2024)

D.C. Circuit Denied En Banc Rehearing in Utah Rail Line Case

The D.C. Circuit Court of Appeals denied defendant-intervenors’ petition for rehearing en banc of its August 2023 opinion finding that the Surface Transportation Board (STP) violated NEPA, the Endangered Species Act, and the Interstate Commerce Commission Termination (ICCT) Act when it reviewed a proposal for construction and operation of an 80-mile rail line in Utah for which the predominant purpose would be transporting waxy crude oil produced in the Uinta Basin. The defendant-intervenors had argued that the court’s opinion conflicted with 2022 and 2023 D.C. Circuit decisions that they argued would not require consideration of upstream and downstream indirect effects where information is not known about upstream wells and downstream end users. They also argued that the court failed to apply the ICCT Act’s presumption favoring rail construction when it found that STB failed to sufficiently weigh environmental effects. Eagle County v. Surface Transportation Board, Nos. 22-1019, 22-1020 (D.C. Cir. Dec. 4, 2023)

Plaintiffs Withdrew Lawsuit Challenging Logging Project After BLM Withdrew Finding of No Significant Impact

Environmental organizations that challenged the U.S. Bureau of Land Management’s (BLM’s) review of a project that allegedly involved logging on 4,600 acres in Oregon filed a notice of dismissal of their case without prejudice after BLM withdrew a finding of no significant impact (FONSI). The organizations had alleged, among other things, that BLM improperly excluded issues such as carbon sequestration and greenhouse gas emissions from its analysis. In its notice announcing withdrawal of the FONSI, BLM said it would “consider new information, conduct additional analysis, and solicit further input from members of the public” if it chose to develop a new environmental assessment for the project. BLM and the National Marine Fisheries Service also indicated to the plaintiffs that whether future timber management occurred would depend on future NEPA analysis and consultation under the Endangered Species Act. Willamette Riverkeeper v. Teitzel, No. 6:23-cv-01631 (D. Or. Jan. 12, 2024)

Federal Court Vacated National Park Service Agreement that Facilitated Development that Allegedly Would Threaten Pine Rocklands in Miami-Dade County

The federal district court for the Southern District of Florida vacated the National Park Service’s agreement with Miami-Dade County to release certain land-use restrictions to facilitate development of a waterpark, hotel, and retail complex. The federal defendants did not dispute that they violated NEPA and the Endangered Species Act by failing to undertake environmental review and consultation before entering into the agreement. Plaintiffs alleged that the project threatened the pine rocklands, which were threatened by factors that included climate change and sea level rise. The court found that the facts warranted vacatur of the agreement. Center for Biological Diversity v. Haaland, No. 1:23-cv-20495 (S.D. Fla. Dec. 18, 2023)

Colorado Federal Court Barred Enforcement of Vail Ban on Delivery Trucks in Pedestrian Mall Areas

The federal district court for the District of Colorado granted a preliminary injunction barring enforcement of the Town of Vail ordinance that restricted “high-volume commercial carrier” delivery trucks from entering pedestrian mall areas. The intent of the ordinance was to promote use of electric vehicles for “last-mile” deliveries to improve pedestrian safety and the “guest experience” and also to provide environmental benefits such as greenhouse gas emissions reductions. The court found that the plaintiff—an organization of licensed motor carrier companies—showed that the Federal Aviation Administration Authorization Act of 1994 and the Airline Deregulation Act of 1978 likely expressly preempted the ordinance and that the plaintiff showed it would suffer irreparable harm absent injunctive relief. Colorado Motor Carriers Association v. Town of Vail, No. 1:23-cv-02752 (D. Colo. Dec. 15, 2023)

Fishermen’s Federation Voluntarily Dismissed Climate Case Against Fossil Fuel Companies

On December 14, 2023, the Pacific Coast Federation of Fishermen’s Associations voluntarily dismissed without prejudice its climate change case against fossil fuel companies. The notice of voluntary dismissal was filed a month and a half after the federal district court for the Northern District of California concluded that the case could be removed to federal court under the Class Action Fairness Act and denied the Federation’s motion to remand. Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp., No. 3:18-cv-07477 (N.D. Cal. Dec. 14, 2023)

Iowa Federal Court Said Local Regulations of Carbon Dioxide Pipelines Were Preempted; New Lawsuit Filed Challenging Pipeline Regulation by Another Iowa County

On December 4, 2023, the federal district court for the Southern District of Iowa ruled that Iowa state law impliedly preempted certain provisions of Story County ordinances regulating hazardous liquid pipelines (such as pipelines for transporting carbon dioxide). The court also found that the federal Pipeline Safety Act preempted setback and emergency planning requirements in the ordinances. In a separate decision, the court ruled that Iowa state law and the Pipeline Safety Act preempted provisions of a Shelby County ordinance that imposed requirements on hazardous liquid pipelines. On January 19, the pipeline developer filed a new lawsuit challenging Palo Alto County’s zoning ordinance amendments regulating use of land for hazardous liquid pipelines. Summit Carbon Solutions, LLC v. Shelby County, No. 1:22-cv-00020 (S.D. Iowa Dec. 4, 2023); Couser v. Story County, No. 4:22-cv-00383 (S.D. Iowa Dec. 4, 2023); Summit Carbon Solutions, LLC v. Palo Alto County, No. 3:24-cv-3006 (N.D. Iowa, filed Jan. 19, 2024)

Court of International Trade Remanded Determination that Imposed Duties on South Korean Steel Producers Who Received Free Emission Credits

In cases brought by two South Korean steel producers, the U.S. Court of International Trade (CIT) remanded the U.S. Department of Commerce’s (Commerce’s) determination that the allocation of 100% of credits to the producers in South Korea’s cap-and-trade system for greenhouse gas emissions provided a “countervailable subsidy” to the steel producers that resulted in imposition of a countervailing duty order. The South Korean cap-and-trade system provides that certain business that meet “high international trade intensity” or “high production cost” criteria receive 100% of the “allowance units” assigned to the business, while other sectors that do not meet the criteria receive 97% of the assigned units. CIT found that substantial evidence supported Commerce’s determinations that the South Korean government had forgone revenue that it otherwise would have received and that provision of the free units conferred a benefit on the producers since their compliance burdens were reduced even if the overall cap-and-trade system imposed a burden on them. CIT further found, however, that Commerce did not adequately support its conclusion that the subsidy provided by the South Korean program was “specific” to a particular sector or industry, as required by the statutory definition of “countervailable subsidy.” Hyundai Steel Co. v. United States, Nos. 22-00029, 22-00032 (CIT Dec. 18, 2023)

Vermont Supreme Court Upheld Approval of Gas Company’s Contract to Purchase Renewable Natural Gas from New York Landfill

The Vermont Supreme Court affirmed the Vermont Public Utility Commission’s (Commission’s) approval of a natural gas company’s contract to purchase renewable natural gas (RNG) produced from a New York landfill. The court found that the record was “replete with evidence” that the RNG would reduce greenhouse gas emissions by replacing “geologic gas” consumed by the gas company’s customers and that the record supported the Commission’s conclusion that the contract was consistent with the 2022 Comprehensive Energy Plan that the State issued to implement the emission reduction requirements of the Vermont Global Warming Solutions Act of 2020 (GWSA) and other statewide policies. The court noted that the company had identified RNG as one component of its approach to meeting its GWSA obligations, with the contract facilitating emissions reductions for customers who could not immediately switch from natural gas. The court also rejected the argument that applicable least-cost planning principles required the company to consider alternatives to RNG such as weatherization, fuel-switching, and efficiency. The court said these alternatives were not relevant because the contract was part of the gas company’s strategy to provide lower-carbon energy sources and separate from other strategies that involved weatherization and efficiency. In addition, the court found that evidence in the record directly supported the Commission’s determination that a social-cost-of-carbon condition adopted by the Commission made the contract cost-effective for the purpose of least-cost planning. The condition required the gas company “to manage its resale options so that the total price paid for emission reductions from RNG delivered to its customers does not exceed the social cost of carbon,” which an expert said would require the company “to resell a portion of RNG into the renewable transportation fuel markets to keep the cost below the social cost of carbon.” In re Vermont Gas Systems, Inc., No. 23-AP-084 (Vt. Jan. 12, 2024)

Louisiana Appellate Court Reinstated Permits for Chemical Manufacturing Complex

Reversing a district court’s 2022 decision, the Louisiana Court of Appeal reinstated 15 permits for a chemical manufacturing complex in St. James Parish. The appellate court found that the Louisiana Department of Environmental Quality (DEQ) did not violate the Clean Air Act when it issued permits for the plant’s construction and that issuance of the permits did not violate Louisiana’s public trust doctrine. Regarding DEQ’s public trust doctrine analysis, the appellate court said it could not find that DEQ’s analysis of whether there were alternative sites or alternative projects that would be more protective of the environment was arbitrary and capricious. The appellate court also rejected the argument that DEQ violated the public trust doctrine and acted arbitrarily and capriciously because it failed to consider the impacts of pollutant emissions, including greenhouse gas emissions. Regarding greenhouse gas emissions, the court found that the record reflected that DEQ considered such emissions and their impact on the environment and minimized such emissions to the maximum extent practicable by requiring best available control technology and setting maximum allowable emission rates. The court also upheld DEQ’s conclusion that the project’s social and economic benefits outweighed its environmental impact costs, as well as DEQ’s environmental justice analysis, which determined that nearby communities would not bear a disproportionate share of negative environmental impacts. Rise St. James v. Louisiana Department of Environmental Quality, No. 2023 CA 0578 (La. Ct. App. Jan. 19, 2024)

California Appellate Court Said Port of Los Angeles Failed to Support Decisions Not to Incorporate Certain Emissions Mitigation Measures

The California Court of Appeal found that the record did not support Port of Los Angeles respondents’ decisions regarding two potential emission mitigation measures for continued operations of a shipping container terminal. The trial court had determined that a 2019 supplemental environmental impact report (SEIR) violated the California Environmental Quality Act (CEQA), including by failing to ensure that mitigation measures were enforceable, failing to adequately analyze the project’s emissions impacts, and improperly modifying or eliminating certain mitigation measures imposed in conjunction with a 2008 CEQA review. The appellate court found that the Port respondents also abused their discretion when they did not adopt as an enforceable mitigation measure a requirement that the terminal operator make annual contributions to a fund to pay for emissions reduction projects or to purchase offset credits. Instead, the respondents made the requirement a “mere lease measure.” The appellate court also found that substantial evidence did not support replacing a mitigation measure that required 100% compliance with a Vessel Speed Reduction Program with a requirement for 95% compliance. In addition, the appellate court agreed with the petitioners that the trial court’s remedy of setting aside the SEIR failed to redress the CEQA violations and allowed the terminal to continue operating illegally without enforceable mitigation measures in place. The appellate court directed the trial court to fashion a remedy to address the CEQA violations. The appellate court rejected petitioners’ contentions that the Port respondents also abused their discretion or acted unreasonably by failing to adopt other mitigation measures, including a demonstration project for zero- or near zero-emission cargo handling equipment, appointment of an independent monitor for mitigation measure compliance, and measures to address drayage truck emissions. Natural Resources Defense Council, Inc. v. City of Los Angeles, No. D080902 (Cal. Ct. App. Dec. 29, 2023 and Jan. 22, 2024)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Recent Developments in State and Local Government Climate Cases Against Fossil Fuel Industry

• On January 24, 2024 (15 days after the U.S. Supreme Court declined to review the Eighth Circuit’s affirmance of the remand order in Minnesota’s case), the federal district court for the District of Minnesota lifted the stay on the case and remanded it to state court. Minnesota v. American Petroleum Institute, No. 0:20-cv-01636 (D. Minn. Jan. 24, 2024)
• On January 19, 2024, the State of Delaware filed an application for certification of interlocutory appeal to the Delaware Supreme Court from the Superior Court’s dismissal and narrowing of the State’s claims. The application identified five issues that the State argued would warrant interlocutory review: (1) whether the Clean Air Act preempts claims seeking relief for harms involving out-of-state emissions; (2) whether Delaware Supreme Court precedent limits the State’s public nuisance claim to harms to State-owned lands; (3) whether the statute of limitations bars claims under the Delaware Consumer Fraud Act; (4) whether the particularity requirement of Delaware’s civil procedure rules requires dismissal of the State’s claims alleging misrepresentations; and (5) whether claims against one of the defendants should be dismissed for insufficient service of process. The State also argued that interlocutory review was warranted because the Superior Court’s decision resolved “several important questions of first impression,” including the preemptive scope of the Clean Air Act, and that the decision regarding the particularity requirement conflicted with case law. In addition, the State argued that interlocutory review would “serve ‘considerations of justice’ and advance judicial economy.” State v. BP America Inc., No. N20C-09-097 (Del. Super. Ct. Jan. 19, 2024)
• In December, the Municipality of San Juan, Puerto Rico filed a lawsuit against fossil fuel industry defendants in federal district court in Puerto Rico. The complaint, which was similar to the complaint filed by multiple Puerto Rico municipalities in 2022, alleged that the defendants’ “production, promotion, refining[,] marketing, and sale of fossil fuel-based consumer product” played a primary role in causing “losses, deaths and destruction of property result the catastrophic storms of September 2017 and their aftermath” and for other losses and economic damage resulting from climate change. The complaint asserted 14 causes of action, including common law consumer fraud, conspiracy to commit common law consumer fraud and deceptive business practices, violation of Puerto Rico’s statute prohibiting false or misleading advertisements and practices, violations of the federal Racketeer Influenced and Corrupt Organizations Act, violation of federal antitrust law, public and private nuisance, strict liability for failure to warn and design defect, negligent design defect, and restitution/unjust enrichment. San Juan seeks punitive and compensatory damages. Municipality of San Juan v. Exxon Mobil Corp., No. 3:23-cv-01608 (D.P.R., filed Dec. 13, 2023)

 

Federal Defendants Sought Stay in Juliana While They Ask Ninth Circuit to Order Dismissal of Case

After the federal district court for the District of Oregon allowed the youth plaintiffs in Juliana to proceed with some claims in their amended complaint, the federal defendants filed a motion to stay district court proceedings pending the Ninth Circuit’s review of a forthcoming petition for writ of mandamus asking the Ninth Circuit to enforce its mandate issued in March 2021 and to direct the district court to dismiss the case in its entirety. The Juliana plaintiffs filed their opposition to the stay motion on February 1. On February 2, the federal defendants filed the petition for writ of mandamus and motion for stay of proceedings, in which they argued that the plaintiffs violated the Ninth Circuit’s mandate, lacked standing, and failed to state either a due process or a public trust claim. Juliana v. United States, No. 6:15-cv-01517 (D. Or.)

Exxon Asked Texas Federal Court to Declare that Shareholders’ Climate Change Proposal Could Be Excluded from Proxy Statement

Exxon Mobil Corporation (Exxon) filed a complaint in the federal district court for the Northern District of Texas seeking a declaratory judgment that it may exclude a shareholder proposal supporting accelerated reduction of Exxon’s greenhouse gas emissions from the company’s proxy statement and not present the proposal for a shareholder vote. Exxon alleged that the “overarching objective” of the shareholders—which the complaint described as an “activist wealth management firm” and an organization that solicits funds to buy enough shares in energy companies to submit shareholder proposals—was “to force [Exxon] to change the nature of its ordinary business or to go out of business entirely.” Exxon alleged that almost 90% of voting shareholders rejected a similar proposal in 2023 and contended that the defendants “should not be permitted to continue to misuse the shareholder proposal rules.” The complaint alleged that the shareholder proposal and proxy voting process was “flawed” and that current guidance from Securities and Exchange Commission staff about how to apply Rule 14a-8, which governs shareholder proposals, was at odd with the rule. Exxon said the rule’s “plain language” supported exclusion of the proposal. On February 2, 2024, Reuters reported that the shareholders had withdrawn their proposal. Exxon then filed a status report stating that although the shareholders had said they would not file the proposal in future years, the withdrawal did not provide Exxon complete relief. Exxon said it would continue with the suit because a ruling from the court was needed on whether the SECs rules’ “ordinary business” or “resubmission” exclusions would allow Exxon to exclude the proposal from its proxy statement. Exxon Mobil Corp. v. Arjuna Capital, LLC, No. 4:24-cv-00069 (N.D. Tex., filed Jan. 21, 2024)

Developer and Environmental Groups Challenged FERC Authorization of Gas Compression Facilities

Two petitions for review were filed challenging the Federal Energy Regulatory Commission’s (FERC’s) authorization for natural gas compression facilities in Idaho, Washington, and Oregon to enable expansion of pipeline system transportation capacity. The project’s developer challenged the authorization (to the extent it was adverse to the developer) in the Fifth Circuit Court of Appeals. Environmental groups challenged the authorization in the D.C. Circuit. FERC submitted a notice of multicircuit petitions to the Judicial Panel on Multidistrict Litigation (JPML), and the JPML’s clerk selected the D.C. Circuit as the court in which to consolidate the petitions. The developer filed a motion to reconsider, arguing that the environmental groups’ petition did not meet requirements to trigger a multicircuit lottery. Gas Transmission Northwest, LLC v. Federal Energy Regulatory Commission, No. 24-60002 (5th Cir., filed Jan. 2, 2024); Columbia Riverkeeper v. Federal Energy Regulatory Commission, No. 24-1002 (D.C. Cir., filed Jan. 4, 2024)

Business Groups Challenged California’s 2023 Climate Disclosure Laws

The U.S. Chamber of Commerce and other business groups filed a lawsuit in the federal district court for the Central District of California challenging two laws enacted by California in 2023: (1) Senate Bill 253, which requires certain companies to estimate and publicly disclose their greenhouse gas emissions, and (2) Senate Bill 261, which requires certain companies to prepare reports on climate change risks. The plaintiffs characterized the laws as a plan “for compelling speech to combat climate change” and asserted that the laws violate the First Amendment, the Supremacy Clause, and constitutional limitations on extraterritorial regulation, including the dormant Commerce Clause. With respect to the First Amendment, the plaintiffs alleged that the laws “compel companies to publicly express a speculative, noncommercial, controversial, and politically-charged message that they otherwise would not express.” Regarding the Supremacy Clause, the complaint alleged that the laws require “sweeping reports” about companies’ emissions and risks, resulting in pressure on companies both in and outside California to reduce their emissions. The plaintiffs asserted that under the Clean Air Act and federalism principles, California lacks authority to regulate greenhouse gas emissions outside of its borders and that the disclosure laws therefore violate the Supremacy Clause. Regarding limits on extraterritorial regulation, the plaintiffs contended that the laws intrude on congressional authority to regulate interstate and foreign commerce and place burdens on interstate commerce that outweigh benefits to California. Chamber of Commerce of the United States of America v. California Air Resources Board, No. 2:24-cv-00801 (C.D. Cal., filed Jan. 30, 2024)

Federal Government Agreed to Delay Enforcement of Rule Requiring States to Establish Targets to Reduce On-Road Emissions

In cases brought by state plaintiffs in federal district courts in Kentucky and Texas to challenge a National Highway System regulation requiring states to establish declining targets for carbon dioxide emissions from on-road mobile sources, the plaintiffs agreed to withdraw their motions from preliminary injunction after the federal defendants agreed to extend the regulation’s February 1 deadline for states to submit initial targets and reports until March 29, 2024. The parties agreed to accelerated briefing schedules for cross-motions for summary judgment. Kentucky v. Federal Highway Administration, No. 5:23-cv-00162 (W.D. Ky. Jan. 30, 2024); Texas v. U.S. Department of Transportation, No. 5:23-cv-00304 (N.D. Tex. Jan. 30, 2024)

Lawsuit Challenged Expanded Aircraft Training over Owyhee Canyonlands

Environmental groups filed a lawsuit in the federal district court for the District of Oregon challenging the U.S. Air Force’s decision to expand military aircraft training over the Owyhee Canyonlands of Oregon, Idaho, and Nevada. They alleged that the Air Force violated NEPA and the Administrative Procedure by failing to take a hard look at adverse impacts (including how climate change would exacerbate impacts on resources) and mitigation measures, to consider a reasonable range of alternatives, and to provide adequate notice and public participation. Oregon Natural Desert Association v. U.S. Department of the Air Force, No. 2:24-cv-00145 (D. Or., filed Jan. 22, 2024)

Lawsuit Challenged Federal Approvals for Wind Projects Off Coast of Rhode Island

A lawsuit in the federal district court for the District of Columbia challenged the Bureau of Ocean Energy Management’s (BOEM’s) approvals of two wind energy projects off the coast of Rhode Island: (1) the South Fork Wind Project, approved in January 2022, and (2) the Revolution Wind Project, approved in August 2023. The plaintiffs asserted that the approvals violated the Administrative Procedure Act, NEPA, Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, Coastal Zone Management Act, and National Historic Preservation Act. Under NEPA, the plaintiffs alleged, among other things, that the environmental impact statements did not sufficiently evaluate the projects’ impacts on greenhouse gas emissions and climate change because they included only “limited qualitative descriptions of emissions generated from construction” and did not compare the projects’ climate benefits with the benefits of other alternative renewable energy sources or alternative project locations or designs. In addition, the plaintiffs alleged that BOEM failed to conduct “cumulative-level analysis of climate impacts (positive or negative) associated with the proposed scale of offshore wind development.” Green Oceans v. U.S. Department of the Interior, No. 1:24-cv-00141 (D.D.C., filed Jan. 16, 2024)

Plaintiffs Alleged that Approval for Climate Resiliency Project in Southern Louisiana Violated NEPA and Endangered Species Act

A lawsuit filed in federal district court in Louisiana challenged the U.S. Army Corps of Engineers authorization of the Mid-Barataria Sediment Diversion Project, “the single largest ecosystem restoration project in the history of the United States.” The plaintiffs—who described themselves as “a coalition of conservationists, commercial and recreational fishermen, and local residents”—alleged that the project would “divert immense volumes of sediment and freshwater from the Mississippi River to the Barataria Basin in southern Louisiana in an attempt to restore deltaic processes, rebuild freshwater wetlands, and support coastal resiliency to climate change and sea level rise” but that the project would have “serious, permanent, adverse impacts,” including impacts on water quality, bottlenose dolphin populations, commercially important fisheries, and human health. The complaint asserted that the Corps violated NEPA, the Administrative Procedure Act, and the Endangered Species Act. Jurisich Oysters, LLC v. U.S. Army Corps of Engineers, No. 2:24-cv-00106 (E.D. La., filed Jan. 11, 2024)

Plaintiffs Challenged New York City Law that Sets Carbon Dioxide Emission Limits for Appliances in New Construction

Trade associations and a union filed a lawsuit in the federal district court for the Southern District of New York challenging a New York City ordinance that prohibits combustion equipment with carbon dioxide emission levels over a certain threshold in new buildings. The plaintiffs asserted that the law effectively bans gas and oil appliances and that the federal Energy Policy and Conservation Act preempts the local law. Association of Contracting Plumbers of the City of New York v. City of New York, No. 1:23-cv-11292 (S.D.N.Y., filed Dec. 29, 2023)

Environmental Groups, Tribe, and Other Organizations Said CEQA Review for Delta Conveyance Project Failed to Consider Climate Change

On January 19, 2024, Sierra Club and other organizations filed a lawsuit in California Superior Court challenging the California Department of Water Resources (DWR) approval of the Delta Conveyance Project, which the petitioners alleged “would divert very large quantities of fresh water from the San Francisco Bay-Delta estuary for export south.” The project would include water intakes to divert water from the Sacramento River in the North Delta into a 45-mile-long tunnel to pumping plants in the South Delta. DWR’s objectives for the project included “[t]o help address anticipated rising sea levels and other reasonably foreseeable consequences of climate change and extreme weather events.” The organizations alleged that approval of the project violated the California Environmental Quality Act (CEQA), the Delta Reform Act, and Fish and Game Code § 3511, which prohibits taking or possession of “fully protected birds.” The organizations alleged that DWR violated CEQA by failing to consider feasible alternatives that would meet the requirements of the Delta Reform Act, climate change and adaptation laws, and the California Endangered Species Act. The organizations also alleged that the CEQA review did not adequately address “foreseeable cumulative impacts on the Bay Delta watershed in light of future climate change, particularly with regards to water supplies in the context of sea level rise, changes in storm patterns, and watershed run-off.” They contended that the environmental impact report (EIR) failed to disclose and evaluate “the effects that worsening climate change coupled with Project operations diverting water pose to surface water, water supply, listed fish species, water quality, and public health, including worsening harmful algal blooms.” Their other allegations included that the EIR did not adequately discuss climate change’s implications for future water deliveries for the project. Sierra Club v. California Department of Water Resources, No. __ (Cal. Super. Ct., filed Jan. 19, 2024)

In a second lawsuit brought by San Francisco Baykeeper, a Tribe and Tribal organization, and other organizations, the petitioners alleged the DWR’s EIR for the project was inadequate, including because it failed to address “the likely implications climate change will have on the efficacy and impacts associated with the Project.” The alleged shortcomings included that the EIR’s baseline excluded the effects of climate change and that the EIR did not consider long-term effects of the project in 2040 or 2070 that included the effects of climate change. The organizations contended that “[t]he billions to be spent on the Project could be used instead for more effective climate adaptation purposes like flood protection investments throughout the Delta.” San Francisco Baykeeper v. California Department of Water Resources, No. __ (Cal. Super. Ct., filed Jan. 22, 2024)

Trial Began in Climate Scientist’s Defamation Case Against Blog Post Authors

A trial began on January 16, 2024 in the climate scientist Michael Mann’s defamation case against two writers who authored blog posts characterizing Mann’s work as fraudulent and attributing misconduct to him. The trial has been covered in the Guardian, Inside Climate News, and other publications. Mann v. Simberg, No. 2012 CA 008263 (D.C. Super. Ct.)

 

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HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

Norway: Oslo District Court Ruled that Scope 3 Emissions Must Be Subject to an Impact Assessment

On June 29, 2023, two environmental NGOs, Greenpeace Nordic and Natural og Ungdom (Nature & Youth), challenged three administrative decisions whereby the Norwegian Energy Ministry approved the plan for the development and operation of the oil and gas fields of Breidablikk, Yggdrasil, and Tyrving in the North Sea. The three fields in question have been subject to impact assessments by the companies that are operators and licensees for the fields. However, these impact assessments do not include combustion (Scope 3) emissions from the oil and gas produced.

In the absence of administrative or specialized environmental courts in the Norwegian legal system, the lawsuit occurred in a civil court. The plaintiffs based their challenge on various legal grounds, including Section 4-2, second paragraph, of the Petroleum Act, alongside Section 22a of the Petroleum Regulations. The interpretation of these statutes was guided by Article 112 of the Norwegian Constitution, emphasizing the right to a healthy environment. Additionally, the challenge was grounded in compliance with the EU Directive on Environmental Impact Assessments (EIA Directive). The plaintiffs also invoked legal sources such as Articles 2 and 8 of the European Convention on Human Rights (ECHR), on the right to life and right to respect for private life and family life and home, respectively, both independently and in conjunction with Article 14 of the ECHR, prohibiting discrimination. Furthermore, the challenge drew support from Section 104, second paragraph, of the Norwegian Constitution, which focuses on the dignity rights of children and the obligation to incorporate their best interests, and Article 3 of the UN Convention on the Rights of the Child, on the best interests of the child. Further legal theories encompass Norway’s Nature Diversity Act and Public Administration Act.

Essentially, the plaintiffs argued that the assessment of Scope 3 emissions should have been conducted before issuing the three administrative decisions. In contrast, the Ministry of Petroleum and Energy, now the Ministry of Energy, asserted that a general-level assessment of Scope 3 emissions by the Ministry sufficed and that there was no explicit requirement for this assessment to be integrated into the specific impact assessments for the Breidablikk, Yggdrasil, and Tyrving fields.

On January 18, 2024, the Oslo District Court concluded that all three decisions were unlawful. There is a legal requirement that Scope 3 emissions must be subject to an impact assessment pursuant to Section 4-2 of the Petroleum Act and Section 22a of the Petroleum Regulations, interpreted in light of Article 112 of the Norwegian Constitution (on the right to a healthy environment). This also follows from Article 4 no. 1 of the EU EIA Directive, Article 3 no. 1. Conversely, for the three challenged administrative decisions, no impact assessment of Scope 3 emissions had been carried out, contrary to the Norwegian Supreme Court’s ruling in the first Norwegian Climate Case. By referring to the mentioned Supreme Court decision, the Oslo District Court asserted that the greater the consequences of a measure under review, the stricter the EIA requirements. Similarly, the greater the consequences of a measure, the more thorough the court’s procedural review must be. For petroleum activities, courts should not be reluctant to review cases on procedural grounds, in this case, the EIA (p. 27). Differently from the first Norwegian Case, where the challenged decision sprang from a Parliament resolution, the challenged decisions are of the Ministry’s competence, yielding to more judicial scrutiny. In connection to such scrutiny, the Court cited the IPCC AR6, comparative case law, and expert opinions heard during the case hearing.

Further, the Court concluded that there is no legal obligation to consider the best interests of children in connection with each individual decision on a plan for development and operation (PDO) of petroleum activities. The Court, therefore, concluded that the decisions are not contrary to section 104 of the Norwegian Constitution and Articles 3 and 12 of the UN Convention on the Rights of the Child. The Court concluded that the decisions are not contrary to Articles 2, 8, and 14 of the ECHR, pending a challenge to the mentioned Supreme Court’s decision before the European Court of Human Rights. Remarking on remedies, the application for a temporary injunction was granted in that the state is prohibited from adopting other decisions that require valid PDO approval for Breidablikk, Yggdrasil, and Tyrving until the validity of the decisions has been finally decided. The state, represented by the Ministry of Petroleum and Energy, was ordered to reimburse the plaintiffs’ legal costs in connection with the case (NOK 3 260 427, circa USD 309,833.49- incl. VAT in compensation for legal costs to the plaintiffs). In addition, the court’s fee will be included. The decision can be appealed. (Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case, Oslo District Court)

 

DECISIONS AND SETTLEMENTS

Brazil: Appellate Court Dismissed Appeal of Order Requiring Individuals to Vacate Illegally Occupied Park Areas

On October 27, 2020, the State of Rondônia and the Rondônia State Public Prosecutor’s Office (MPRO) filed a Public Civil Action (ACP), with a request for injunctive relief against several individuals who invaded the area of the Guajará-Mirim State Park and its buffer zone, a region called “Bico do Parque,” without authorization from the competent body. The news of the invasion of the areas by around 70 people was received by the State Secretariat for Environmental Development (SEDAM) and the military police in September 2020, and the suppression of native vegetation and the construction of buildings were found. After the intervention of the state authorities, the private individuals vacated the park area. Still, they continued in its buffer zone and more people joined the group of occupiers, threatening to invade the conservation unit again. As an injunction, the authors request: (i) to order the defendants to refrain from entering the state park and to withdraw from its buffer zone; (ii) for the bodies with police powers to notify the defendants and negotiate the non-occupation of the areas and their withdrawal, while maintaining surveillance at the site. On the merits, it is requested that the requests for urgent relief be confirmed and that the defendants be ordered not to occupy the areas in question, under penalty of a daily fine.

On November 5, 2020, the request for injunctive relief was granted and a judgment was handed down against the occupants of the areas, ordering them to vacate. The defendants filed an appeal. On November 21, 2023, a judgment was handed down ruling on the appeal and this is the procedural document that contains an express discussion directly related to climate change.

In discussing the merits of the case, the ruling emphasized the importance of the Guajará-Mirim State Park for preserving biodiversity in the state of Rondônia. It was emphasized that illegal possessions cannot be converted into legal ones in order to implement agricultural projects that disregard the importance of the Amazon biome. It was argued that climate change has led to a recommendation to create conservation units and that Brazil is the sixth country with the highest greenhouse gas (GHG) emissions, 60% of which come from land use, land use change, and the forestry sector. In addition, the ruling explains the impacts of deforestation on water security, climate, soil, air, biodiversity, health, the lives of future generations, and the economy. It highlighted Advisory Opinion 23/2017 of the Inter-American Court of Human Rights, which stated that the effects of climate change affect the realization of human rights. In addition, it argued that the Brazilian legal system, due to the socio-environmental function of property, does not support property that harms the rights of others. It concludes that the occupation of the areas that are the subject of the lawsuit is recent and that current legislation does not allow anthropization in these places. Therefore, the appeal was dismissed. (State of Rondônia and Public Prosecutor’s Office of the State of Rondônia vs. invaders of the Guajará-Mirim State Park and its Amortization Zone (illegal occupation of the Guajará-Mirim State Park), Rondonia State Court, Brazil)

Mexico: Collegiate Court Ruled Fines Against Auto Company for GHG Emissions Were Lawful

On January 18, 2022, Kia Motors México, S.A. de C.V. filed a lawsuit against the Procuraduría Federal de Protección al Ambiente (PROFEPA) before the Federal Tribunal of Administrative Justice, contesting a fine PROFEPA imposed on them for non-compliance with the NOM-163-SEMARNAT-ENER-SCFI-2013. In general terms, this norm establishes that, for certain car models, they must obtain a certificate of environmental compliance, and certify that their cars comply with certain carbon dioxide emissions parameters. One of the purposes of this Mexican Official Standard is to prevent atmospheric pollution and thus combat climate change.

Kia Motors was sanctioned with two different fines, for: 1) not having obtained the NOM Certificate of Environmental Compliance and, 2) not having accredited compliance with the criteria for the acceptance of carbon dioxide emissions, because the corporation failed to meet its environmental obligations to reduce CO2 emissions from their 2016 model year vehicles. However, PROFEPA imposed, for both sanctions, seven fines, one for each car model.

On August 11, 2022, regarding the first sanction, the Federal Tribunal of Administrative Justice decided that the fine, in relation to the Certificate of Environmental compliance was illegal. The Tribunal also decided that Kia could not be sanctioned for the same conduct seven times. Considering that it was a single infringing conduct, only one fine could be applied, not seven.

PROFEPA filed an appeal on November 17, 2022, arguing that Kia should be fined for the seven models of cars marketed, because each automotive line and model must comply with the carbon dioxide reduction, as each line and model has different specifications. By not complying with the NOM, none of the seven models complied with the CO2 emission limits. PROFEPA made the example in its appeal that sanctioning the company with a single fine would be equivalent to a person who deprives a hundred people of their lives, being sanctioned only once for the crime of deprivation of life.

The Collegiate Court that heard the appeal, on September 22, 2023, decided that (1) the two sanctions were legal and that (2) based on Article 4 of the Constitution, which protects the right to a healthy environment, the “polluter pays” principle, the principle of prevention, and the principle of in dubio pro natura, the company had to be fined for each model of automobiles. The above, first, because environmental administrative law must function as an effective instrument in the prevention of environmental damage and, with it, dissuade potential offenders from committing damage to the environment. Second, because this interpretation of the NOM allows the protection of the right to a healthy environment and the fight against climate change. In accordance with the decision of the Collegiate Court, the Federal Tribunal of Administrative Justice must issue a new decision with the new considerations issued by the Collegiate Court. This new decision is pending. (Kia México v. Procuraduría Federal de Protección al Ambiente (PROFEPA), Federal Tribunal of Administrative Justice, Mexico)

NEW CASES

New Zealand: NGOs Filed Greenwashing Complaint Against Petroleum Retailer

On November 2023, three NGOs—Consumer NZ, The Environmental Law Initiative, and Lawyers for Climate Action NZ Inc—filed a complaint against Z Energy Ltd, the largest petroleum retailer in New Zealand. The complaint is New Zealand’s first “greenwashing” case. The complaint details claims that Z Energy has made which give the impression that it is taking action to reduce its greenhouse gas emissions. Complainants argue that these statements do not align with Z Energy’s actual policies and actions. Accordingly, they argue that Z Energy has breached section 9 of New Zealand’s Fair Trading Act, which prohibits “misleading and deceptive conduct.” (Consumer NZ Inc v Z Energy Ltd, High Court of New Zealand, New Zealand)

United Kingdom: NGO Challenges UK’s Biomass Strategy

The environmental charity, the Lifescape Project, has launched a public law challenge to the Secretary of State’s Biomass Strategy. The strategy sets out government policy on the role of sustainable biomass in reaching net zero. The claimant relies on the UK Climate Change Act 2008, filing its challenge in November 2023.

The Biomass Strategy, which was published August 2023, describes Biomass Energy with Carbon Capture Storage (BECCS) as a “low carbon fuel source.” This is despite, says the claimant, experts doubting its ability to help meet climate targets and be considered as renewable energy. For instance, it is said the strategy does not consider the lifecycle emissions such as through manufacturing and combustion of the biomass.

BECCS involves the burning of biomass then the capturing the carbon emissions generated and storing them below ground. This process is sometimes described by its promoters as “carbon negative,” on the basis that the carbon released by burning wood is also absorbed by newly planted trees.

However, according to the claimant this method is expected to cost billions. It is said forest ecosystems will be threatened as the method is reliant on existing forests before sourcing from afforested areas can begin. There are argued to be other lower cost forms of renewable energy that can reliably deliver emission reductions. (R (the Lifescape Project) v Secretary of State for Energy Security and Net Zero (challenge to Biomass Strategy), High Court of Justice, United Kingdom)