January 2022 Update 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 #154.

Monthly Climate Litigation Update (January 13, 2022, Update # 154)

FEATURED CASE

Federal Court Said Delaware’s Climate Case Against Fossil Fuel Industry Belonged in State Court

The federal district court for the District of Delaware granted the State of Delaware’s motion to remand its climate change lawsuit against fossil fuel industry defendants to state court. The court characterized Delaware’s case as alleging that the defendants’ “disinformation campaign” about global warming’s existence, causes, and effects caused the State to suffer from the impacts of global warming. The district court found that Delaware’s complaint asserted only state law claims; that the defendants failed to show complete preemption (and had, in effect, waived the complete preemption argument); and that federal common law, even if implicated in Delaware’s claims, did not provide a basis for removal. The district court also found that the defendants failed to establish a basis for Grable jurisdiction because Delaware’s claims did not “necessarily raise” the federal issues identified by the defendants related to federal energy policy, federal foreign affairs power, and First Amendment rights. With respect to federal-officer removal jurisdiction, the court found that the plaintiffs had disclaimed certain claims upon which such jurisdiction might be based, that other activities cited by the defendants as the basis for such jurisdiction predated the alleged misconduct, and that defendants’ operations under the Outer Continental Shelf (OCS) lease program did not meet the requirement that the defendants were “acting under” federal officers. The court also found that the defendants did not establish that there was jurisdiction under the Outer Continental Shelf Lands Act in the absence of a showing that their OCS operations were a but-for cause of Delaware’s alleged injuries. The court found that the companies waived their removal arguments based on federal enclave jurisdiction and the Class Action Fairness Act (in addition to the complete preemption argument). On the same day that the court issued its decision, the defendants filed an emergency motion for a temporary stay of the remand order. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. Jan. 5, 2022)

DECISIONS AND SETTLEMENTS

New Jersey Federal Court Stayed Remand Order in Hoboken’s Climate Case Against Fossil Fuel Industry Defendants

On December 15, 2021, the federal district court for the District of New Jersey granted fossil fuel industry defendants’ motion to stay its order remanding the City of Hoboken’s climate change case to state court. Although the district court found that the defendants did not make a strong showing that they were likely to succeed on the merits of their appeal in the Third Circuit and therefore failed to establish that a stay pending appeal was warranted, the court concluded that factors such as consideration of judicial economy and conservation of resources favored granting a stay using the court’s inherent power to control its own docket. Also on December 15, Hoboken filed its brief in the Third Circuit arguing that the remand order should be affirmed. Later in the month, five briefs were filed by the following amici curiae in support of Hoboken: a group of federal courts and foreign relations scholars; Natural Resources Defense Council; 14 states and the District of Columbia; New York City; and the National League of Cities and U.S. Conference of Mayors. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J. Dec. 15, 2021), No. 21-2728 (3d Cir.)

Texas Federal Court Said Challenge to Revocation of Keystone XL Permit Was Moot

The federal district court for the Southern District of Texas dismissed a lawsuit brought by Texas and 22 other states to challenge President Biden’s January 2021 revocation of the presidential permit for the Keystone XL crude oil pipeline project. The permit allowed construction of a 1.2-mile segment of the pipeline that crossed the Canada-U.S. border. The project’s developers announced their termination of the project in June 2021. The court found that the case was moot since the project had been terminated, and that the exception to mootness for cases capable of repetition but evading review did not apply, both because the plaintiffs did not demonstrate that it would be “virtually impossible to litigate the validity” of Biden’s action because of the short duration of the process and also because any recurrence would require judicial intervention. Texas v. Biden, No. 3:21-cv-65 (S.D. Tex. Jan. 6, 2022)

Massachusetts Federal Court Declined to Revisit Standing in Adaptation Case, Directed Parties to Propose Discovery Schedule

On December 22, 2021, the federal district court for the District of Massachusetts issued an order concerning the next steps for Conservation Law Foundation’s (CLF’s) lawsuit alleging that ExxonMobil Corporation (Exxon) failed to prepare its Everett, Massachusetts terminal for the impacts of climate change. The First Circuit sent the case back to the district court in July 2021, finding that the district court erred in staying the case. In its December 2021 order, the district court concluded that a 2021 Supreme Court decision did not alter the standard the district court had used in denying a motion to dismiss claims for prospective injunctive relief for lack of standing. The district court also found that both the question of standing and the question of whether Exxon’s 2021 revisions to the Everett terminal’s stormwater pollution prevention plan (SWPPP) mooted CLF’s claims would benefit from factual development in discovery, as would certain other issues such as the impact of the U.S. Environmental Protection Agency’s 2021 issuance of a Multi-Sector General Permit. The court also did not require CLF to file a new complaint in light of the SWPPP revisions but warned that CLF could risk denial of a future motion to amend the complaint. The court also declined to bifurcate discovery concerning remedies and liability. The court directed the parties to propose a “more realistic” schedule for fact and expert discovery than the five months CLF proposed for fact discovery. Conservation Law Foundation v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass. Dec. 22, 2021)

Certiorari Denied in Case Alleging Failure to Comply with NEPA for Immigration Policies

The U.S. Supreme Court denied certiorari in a case in which the Ninth Circuit Court of Appeals rejected claims that the federal government failed to comply with the National Environmental Policy Act (NEPA) in connection with certain immigration programs and policies, including Deferred Action for Childhood Arrivals. The certiorari petition—which raised the questions of whether the Department of Homeland Security’s NEPA procedures constituted reviewable final agency action and whether the Ninth Circuit improperly denied standing to the petitioners based on an erroneous standard—asserted that “[i]mmigrants and their children almost universally are responsible for significantly more greenhouse gas emissions than they would have been if they never emigrated from their home countries,” and that the Biden administration’s “heightened focus on greatly augmenting the population through the expansion of the pathways of immigration to the U.S.” was “at cross purposes” with the administration’s greenhouse gas emissions reduction goals. Whitewater Draw Natural Resource Conservation District v. Mayorkas, No. 21-574 (U.S. Dec. 13, 2021)

Supreme Court Declined to Hear Case Concerning Decommissioning of California Nuclear Plant

The U.S. Supreme Court denied certiorari in a case in which a district court and the Ninth Circuit held that the district court did not have jurisdiction to consider claims challenging the decommissioning process for the San Onofre Nuclear Generating Station in California. The plaintiff’s allegations had included that projected sea level rise could have “catastrophic” results due to the planned storage of spent nuclear fuel in cannisters within 108 feet of the ocean. Public Watchdogs v. Southern California Edison Co., No. 20-1676 (U.S. Dec. 6, 2021)

D.C. Circuit Granted Voluntary Remand of EPA Determinations on Small Refinery Waivers

The D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motion for voluntary remand without vacatur of its August 2019 determination granting and denying 36 petitions for extensions of the small refinery exemption from the requirements of the Clean Air Act’s Renewable Fuel Standard annual volume obligations for compliance year 2018. The court ordered EPA to issue new decisions within 120 days. The court stated that vacatur was not warranted “because it would be unduly disruptive and EPA may be able to explain its rationale on remand.” Renewable Fuels Association v. EPA, No. 19-1220 (D.C. Cir. Dec. 8, 2021)

Federal Court Allowed Company to Intervene to Defend Approvals of Offshore Wind Project

The federal district court for the District of Massachusetts granted Vineyard Wind 1 LLC permission to intervene to defend federal authorizations of the Vineyard Wind offshore wind project against two lawsuits asserting violations of the National Environmental Policy Act, Endangered Species Act, and Administrative Procedure Act. The court concluded that at this juncture Vineyard Wind 1 LLC was not entitled to intervention as of right because even though the company had a protectible interest that could be impaired by the litigation, the company did not persuade the court that the “asymmetrical interests” of the company and the government defendants would prevent the government from adequately representing the company’s interests. The court found, however, that permissive intervention was appropriate. Allco Renewable Energy Ltd. v. Haaland, No. 1:21-cv-11171 (D. Mass. Jan. 7, 2022); ACK Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, No. 1:21-cv-11390 (D. Mass. Jan. 7, 2022)

Federal Court Upheld NEPA Review for Projects at Wisconsin Air National Guard Site

The federal district court for the Western District of Wisconsin rejected claims that the National Guard Bureau violated the National Environmental Policy Act when it evaluated 27 construction, demolition, and renovation projects at the 115th Fighter Wing installation of the Wisconsin Air National Guard at the Dane County Regional Airport in Madison. The court found that the plaintiff failed to demonstrate that an environmental impact statement or supplemental environmental assessment should have been prepared and also found that the environmental review had not been improperly segmented from the review of a decision to base F-35A aircraft at the airport—a decision that the plaintiff challenged in a separate action. In rejecting the improper segmentation claim, the court also rejected the argument that the National Guard Bureau failed to consider climate change—the court said the defendants were not obligated to consider the effects of the decision to “beddown” F-35A aircraft at the airport, and that the plaintiff could pursue this argument in the other action. The court also found that the defendants adequately considered cumulative effects and environmental justice and did not violate notice and public participation requirements. Safe Skies Clean Water Wisconsin, Inc. v. National Guard Bureau, No. 20-cv-1086 (W.D. Wis. Jan. 3, 2022)

D.C. Federal Court Allowed Trade Group to Intervene to Defend Offshore Oil and Gas Lease Sale

The federal district court for the District of Columbia found that American Petroleum Institute (API) met requirements to intervene as of right in a lawsuit challenging Offshore Oil and Gas Lease Sale 257 in the Gulf of Mexico. The court found that API’s members benefit financially from oil and gas leases, that the members’ economic and regulatory interests could be impaired by the outcome of the litigation, and that existing parties—including Louisiana, which had already been granted leave to intervene—would not adequately represent API’s interests. The court denied the plaintiffs’ requests that it impose limitations on API’s intervention. Friends of the Earth v. Haaland, No. 21-cv-2317 (D.D.C. Dec. 11, 2021)

Montana Federal Court Rejected Claims that NEPA Review for Forest Plan Did Not Adequately Consider “Albedo Effect”

The federal district court for the District of Montana rejected a pro se plaintiff’s claim that the U.S. Forest Service failed to properly consider the “albedo effect” in its environmental review of a management plan for Flathead National Forest. The court described the albedo effect as referring “to the dynamic process by which objects ‘reflect light back into space’” and said that “some argue efforts to ‘increase the albedo of the earth’s surface,’ by fostering landscapes that reflect light, rather than absorb it, will help alleviate the warming effects of climate change.” The court continued by noting that such efforts might include managed deforestation to increase “‘land cover such as fields or bare ground,’ which absorb much less sunlight than ‘tree leaves.’”  The court found that the U.S. had directly responded to the plaintiff’s comments on the albedo effect, had thoroughly considered the plan’s impacts on climate change, and (partially in response to the plaintiff’s concerns) had even generated alternatives that increased timber harvests. The court also denied the plaintiff’s motion to amend his complaint. O’Neil v. Steele, No. 9:19-cv-00140 (D. Mont. Dec. 6, 2021)

Fish and Wildlife Service Agreed to Make New Determination on Listing California Spotted Owl as Threatened or Endangered

The federal district court for the Northern District of California approved a settlement agreement between environmental groups and the U.S. Fish and Wildlife Service (FWS) to resolve a lawsuit challenging the 2019 determination that the California spotted owl did not warrant protection under the Endangered Species Act. The settlement provided that the FWS will prepare a new finding by February 15, 2023 regarding whether listing the species is warranted, not warranted, or warranted but precluded. In their complaint, the plaintiffs had alleged that “the Service’s own scientific experts … predicted there will be increasing threats from climate change and associated increases in drought, tree mortality, and high-severity fire,” among other serious threats. Sierra Forest Legacy v. U.S. Fish & Wildlife Service, No. 5:20-cv-05800 (N.D. Cal. Nov. 30, 2021)

California Appellate Court Rejected Arguments for New Consideration of Sea Level Rise in CEQA Review for Housing Development on San Francisco Bay

The California Court of Appeal affirmed a trial court decision finding that the City of Newark did not violate the California Environmental Quality Act (CEQA) when it approved a housing development of 469 units next to San Francisco Bay in reliance on an environmental impact report (EIR) previously prepared for a specific plan for the area that included up to 1,260 residential units, a golf course, and related facilities. Among the arguments rejected by the appellate court was a contention that new information about the amount and rate of sea level rise since preparation of the EIR should have required consideration of whether the project’s interactions with wetlands would exacerbate the effects of sea level rise. The court found that such dynamics were “not new in relation to this project” and that the new information showing an increased rate of  sea level rise “does not make the impacts of thwarted wetland migration substantially more severe in a way that would trigger” requirements for additional review. The court also rejected the argument that the City had improperly deferred consideration of mitigation measures to respond to sea level rise. The court said the CEQA review was not required to discuss effects of sea level rise on the project at all since sea level rise was not an environmental impact caused by the project. The court also concluded that potential responses to sea level rise decades in the future could not be considered part of the current project and therefore did not have to be addressed in the CEQA review. Citizens’ Committee to Complete the Refuge v. City of Newark, No. A162045 (Cal. Ct. App. Dec. 29, 2021)

California Court of Appeal Agreed that Greenhouse Gas Mitigation Measures for San Diego Housing Projects Were Inadequate

The California Court of Appeal affirmed a trial court judgment that San Diego County’s greenhouse gas mitigation measures for two housing developments were inadequate under CEQA. The appellate court found that the mitigation measures suffered from the same deficiencies that the court previously identified in 2020 in Golden Door Properties, LLC v. County of San Diego for mitigation measures included in EIR for the County’s Climate Action Plan: they lacked enforceable performance standards and they impermissibly delegated and deferred the determination of whether greenhouse gas offsets were real, permanent, verifiable, quantifiable, enforceable, and additional. The court did not weigh in on whether the mitigation measures were compliant with the County’s general plan update since the general plan’s greenhouse gas-related provisions remained in flux due to ongoing litigation and because the mitigation measures had already been deemed not to comply with CEQA. Sierra Club v. County of San Diego, Nos. D077548, D077972 (Cal. Ct. App. Dec. 21, 2021)

California Appellate Court Upheld CEQA Review for San Diego Roadway Project

The California Court of Appeal upheld the CEQA review for a roadway project in the City of San Diego. Climate change was not a high-profile issue in the case, but among the arguments rejected by the court was that the final EIR for the project failed to discuss the project’s purported inconsistencies with the City’s general plan. The court found that the City reasonably determined in the final EIR that the project furthered numerous policies in the general plan, including reduction of greenhouse gas emissions, and that the City had reasonably weighed and balanced the plan’s policies in approving the project. Save Civita Because Sudberry Won’t v. City of San Diego, No. D077591 (Cal. Ct. App. Dec. 16, 2021)

 

New York Appellate Court Said Resiliency Project Constituted “Park Purpose” and Did Not Require State Approval

The New York Appellate Division rejected a challenge to a project intended to protect East River Park and nearby neighborhoods from flood risk due to coastal storms and sea level rise. The project would require the “full reconstruction and reconfiguration of the Park,” raising its elevation by eight to nine feet and installing a below-grade flood protection structure. The court held that this project served a “park purpose” and therefore did not require alienation of parkland that would require approval of the New York State Legislature under the public trust doctrine. The court rejected the petitioners’ position that the project did not serve a park purpose because it would also provide benefits to surrounding communities. The court also found that the potential availability of “better, less intrusive” methods to provide flood protection did not implicate the public trust doctrine. In addition, the court rejected the contention that the “lengthy park closures” required for construction of the project would themselves constitute an alienation of parkland. East River Park Action v. City of New York, No. 2021-00421 (N.Y. App. Div. Nov. 30, 2021)

 

California Court Ordered Additional Study of Resort’s Impact on Wildfire Evacuation Routes,  Upheld Other Aspects of CEQA Review

A California Superior Court found that the County of Lake failed to support its findings regarding a proposed resort development’s impacts on community emergency evacuation routes during wildfires. The court therefore ordered that the County set aside its approval of the project. The court rejected other claims that the CEQA review was inadequate, including with respect to the project’s impact on wildfire risk, which was an issue identified by the People of the State of California when intervening as a petitioner to challenge the project. (The People had cited the area’s “high susceptibility” to wildfire risk and the increasing frequency, scale, and severity of wildfires exacerbated by climate change and development at the wildland-urban interface.) The court also found that a carbon credit program added in an errata to the final EIR was not a mitigation measure upon which the County relied to make any findings in the EIR; therefore, to the extent the carbon credit program did not comply with CEQA, the court found no prejudicial error. The court also was not persuaded by the People’s argument that the County should have considered alternative locations closer to a transit stop because such locations would have reduced greenhouse gas emissions. The court stated: “The Project consists of high-end residential, resort, and recreational facilities. It is speculative to conclude consumers of the project will travel from out of the area by public transit.” Center for Biological Diversity v. County of Lake, No. CV421152 (Cal. Super. Ct. Jan. 4, 2022)

 

Maine Court Declined to Stop Ban on New England Clean Energy Connection Line from Taking Effect

The Maine Business and Consumer Court denied a motion for preliminary injunction barring the ballot initiative that banned completion and operation of the New England Clean Energy Connection transmission line corridor from taking effect. The court found that allowing the initiative to take effect would not violate the developers’ constitutional rights or constitutional principles, and that they had not demonstrated a substantial possibility of success on the merits of their challenge. Although the court acknowledged that the applicable law was uncertain, the court found that other factors would nonetheless be determinative, including because the developers would not suffer irreparable injury if the initiative took effect during the litigation and because the “paramount” public interest in participatory democracy would be adversely affected by an injunction. The court found that the economic harm to the developers, while “substantial,” would not outweigh this harm. Regarding arguments that failure to grant an injunction would have a negative climate impact, the court stated: “The question now is not whether climate change or direct construction poses a greater environmental threat; nor is the question what impact the Initiative will have on future economic investment in Maine. The question is whether, during the likely short lived litigation period, the harm from entering or refusing to enter a preliminary injunction will be worse.” The court concluded the balance of harm favored the defendants. The case is now before the Maine Supreme Judicial Court, sitting as the Law Court, in which it decides appeals on questions of law that arise in cases in the lower courts. Initial briefs from the initiative’s opponents are due February 28, 2022. NECEC Transmission LLC v. Bureau of Parks & Lands, No. BCD-CIV-2021-00058 (Me. Bus. & Consumer Ct. Dec. 16, 2021)

 

Settlement Announced to Resolve CEQA Claims Regarding Los Angeles Area Development

On December 1, 2021, a Los Angeles-based nonprofit organization and the company developing the proposed Centennial at Tejon Ranch multi-use development in Los Angeles County announced a settlement pursuant to which the organization will drop its CEQA claims and the developer will implement climate change and wildfire resilience measures. The developer said it had committed to net-zero greenhouse gas emissions through a combination of on-site and off-site measures, and that it would install almost 30,000 electric vehicle chargers within and outside the community and provide incentives for purchase of 10,500 electric vehicles. The developer also committed to fund wildfire protection and prevention measures. A separate case brought by Center for Biological Diversity and California Native Plant Society remains pending. Climate Resolve v. County of Los Angeles, No. 19STCP01917 (Cal. Super. Ct. Dec. 1, 2021)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

 

Supreme Court Briefs Argued for Overturning D.C. Circuit Decision on Regulation of Carbon Emissions from Existing Power Plants

In mid-December 2021, briefs were filed in the U.S. Supreme Court urging the Court to reverse the D.C. Circuit’s January 2021 decision that vacated EPA’s repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. The Court set oral argument for Monday, February 28, 2022.

 

• Nineteen state petitioners led by West Virginia argued that Section 111 of the Clean Air Act does not clearly give EPA authority to exercise “transformative power” over the power industry and “to drive essential decisions” related to clean air and energy that traditionally are divided between the states and federal government. The states also argued that Section 111 requires that regulation be limited to “inside the fenceline” of a facility.  They argued that the D.C. Circuit’s interpretation raised serious constitutional concerns and that the Court should construe Section 111 to avoid non-delegation issues.
• Petitioner North Dakota argued that the D.C. Circuit improperly interpreted Section 111 to give EPA “almost limitless power to regulate existing sources,” thereby upending the cooperative federalism framework and depriving states “of their authority to set standards of performance that take into account source-specific factors.”
• Petitioner North American Coal Corporation argued that the D.C. Circuit’s interpretation of Section 111 ran afoul of the major questions doctrine because it “gives the EPA unfettered control over not only the nation’s power grid, but the entire economy,” where Congress had not “clearly conferred” such authority. North American Coal’s brief also argued that the test, structure, and history of the provision required an interpretation that required EPA standards to have a source-specific focus.
• Petitioner Westmoreland Mining Holdings LLC argued that the Clean Power Plan “implicated major questions by every possible measure” and that it was not clearly authorized by Congress. Westmoreland further argued that “[a]ccepting the Clean Power Plan’s interpretation of EPA’s authority would result in a forbidden delegation of legislative power.”

 

Several other briefs were filed by parties that intervened as respondents to defend the Trump administration’s rulemaking before the D.C. Circuit. In addition, 16 amicus briefs were filed in support of the petitioners, and one was filed in support of neither party by a group of “scholars of congressional accountability.” Amici included 91 members of Congress, who argued that the major questions doctrine “forecloses the EPA’s far-reaching assertion of agency power” and that Congress “knows how to address greenhouse gas emissions,” citing laws that provide “carrots,” not “sticks,” to achieve emissions reductions and the recent federal law regulating hydrofluorocarbons. West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (U.S.)

 

Supreme Court Review Sought of Remedy in Review of FERC Authorization for Gas Pipeline

A gas utility and natural gas pipeline company filed a petition for writ of certiorari seeking review of the D.C. Circuit’s order vacating the Federal Energy Regulatory Commission (FERC) authorization for a gas pipeline in the St. Louis region. The petition presented the question of “whether remand without vacatur is the appropriate remedy where the record indicates that an agency’s inadequately reasoned decision could be corrected on remand and vacatur of the decision could result in serious, and potentially life-threatening, disruptive consequences.” Spire Missouri Inc. v. Environmental Defense Fund, No. 21-848 (U.S.)

 

Rehearing Sought of Ninth Circuit Decision on NEPA Review for San Bernardino Air Cargo Facility

California and a group of petitioners led by Center for Community Action and Environmental Justice (CCAEJ) filed petitions requesting rehearing en banc of the Ninth Circuit’s decision upholding the NEPA review for construction and operation of an air cargo facility at the San Bernardino International Airport in southern California. California argued that the majority’s decision created a new burden of proof for NEPA challenges that was inconsistent with Ninth Circuit precedent and that the approval of environmental analysis that was incomplete and inaccurate where impacts were uncertain and controversial also was at odds with Ninth Circuit precedent. California said the questions raised were of exceptional importance because the Ninth Circuit’s decision created “gaping loopholes for federal agencies in future actions” to undermine NEPA’s procedures and purpose. The CCAEJ petitioners also argued that the case presented questions of exceptional importance because the decision would “bring lasting, lung-burning harm to hundreds of thousands of San Bernardino residents who already breathe some of the most polluted air in the nation,” and that the decision’s harms would extend to anyone near a federally-approved project in the Ninth Circuit, “but the worst of these harms will fall unequally on Black and brown communities.” The CCAEJ petitioners contended that the Ninth Circuit’s decision adopted “a virtually insurmountable standard” for establishing NEPA violations that contravened Ninth Circuit precedent and also failed to hold the Federal Aviation Administration to the cumulative impacts standard established by precedent. Center for Community Action & Environmental Justice v. Federal Aviation Administration, Nos. 20-70272 & 20-70464 (9th Cir. Jan. 3, 2022)  

 

January 25 Oral Argument Scheduled for Jurisdictional Issues in Baltimore Climate Case

The Fourth Circuit Court of Appeals scheduled oral argument for January 25, 2022 in fossil fuel companies’ appeal of the remand order in Baltimore’s climate change case. The Fourth Circuit will consider the companies’ arguments that Baltimore’s claims arise under federal law and that there is federal jurisdiction because the claims arise out of the defendants’ operations on the Outer Continental Shelf. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir.)

 

D.C. Circuit Lifted Abeyance in Challenge to 2016 Standards for Medium- and Heavy-Duty Engines and Vehicles

On December 6, 2021, the D.C. Circuit Court of Appeals granted petitioners’ motion to lift the abeyance in their case challenging the Obama administration’s 2016 standards for greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty engines and vehicles. The petitioners described their challenge as related to EPA’s “assertions in the Rule that individuals who modify certain vehicles and/or engines for off-road racing/competition purposes or that manufacturers of parts for these individuals and companies could be considered in violation of the Clean Air Act.” The petitioners asked that the abeyance be lifted and a briefing schedule set because there was no longer a reasonable prospect that they would settle the matter. EPA did not oppose the motion. The petitioners submitted their opening brief on December 23. Racing Enthusiasts & Suppliers Coalition v. EPA, No. 16-1447 (D.C. Cir.)

Challenges to Hydrofluorocarbon Phasedown Rule Filed in D.C. Circuit

Three trade associations; a manufacturer of pressure cylinders for refrigerant, propane, and industrial gases; and a producer of hydrofluorocarbon blends filed petitions for review in the D.C. Circuit Court of Appeals challenging EPA’s final rule on “Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program under the American Innovation and Manufacturing Act.” The trade associations asserted that the final rule exceeded EPA’s statutory authority, was contrary to the American Innovation and Manufacturing Act of 2020, and was arbitrary and capricious and otherwise contrary to law. In particular, the trade associations asked the court to set aside certain provisions of the final rule prohibiting the sale of regulated substances contained in disposable cylinders and mandating the tracking of the movement of cylinders containing regulated substances, including through the use of QR codes. The pressure cylinder manufacturer’s petition indicated that it would focus on EPA’s prohibition on the use of “disposable” (i.e., “non-refillable”) cylinders. The hydrofluorocarbon producer also challenged EPA’s “Notice of 2022 Allowance Allocations for Production and Consumption of Regulated Substances Under the American Innovation and Manufacturing Act of 2020.” Heating, Air-Conditioning, & Refrigeration Distributors International v. EPA, No. 21-1251 (D.C. Cir. Dec. 2, 2021); Worthington Industries Inc. v. EPA, No. 21-1252 (D.C. Cir., filed Dec. 3, 2021); RMS of Georgia, LLC d/b/a Choice Refrigerants v. EPA, No. 21-1253 (D.C. Cir., filed Dec. 3, 2021)

Lawsuit Challenging Forest Project Cited Climate Change Threats to Bull Trout

Idaho Conservation League filed a lawsuit in federal court in Idaho challenging federal approvals of the Sage Hen Integrated Restoration Project in the Boise National Forest. The plaintiff asserted that the approvals of the project—which it described as a “twenty-year, landscape-scale project that includes extensive logging, prescribed burns, and road construction on public lands”—violated NEPA, the National Forest Management Act, the Endangered Species Act, and the Administrative Procedure Act. The claims included allegations related to defects in the consideration of climate change in the biological opinion for bull trout. First, the complaint alleged that the U.S. Fish and Wildlife Service (FWS) “dismissed any synergistic effects the Project will have with climate change and other cumulative effects that are already harming bull trout” by assuming the project would last only 10 years (instead of the 20-year timeframe identified by the U.S. Forest Service). Second, the complaint alleged that the FWS ignored information regarding potential climate change and other cumulative effects even over the next 10 years. Idaho Conservation League v. U.S. Forest Service, No. 1:21-cv-504 (D. Idaho, filed Dec. 20, 2021)

In Adaptation Case, Conservation Law Foundation Asked Court to Reject Shell Efforts to Limit Document Production to Those Mentioning Rhode Island Facility

Conservation Law Foundation (CLF) filed a motion to compel production of documents in its lawsuit asserting that Shell Oil Products US and related entities (Shell) violated the Clean Water Act and Resource Conservation and Recovery Act (RCRA) by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. CLF described the parties’ primary dispute as related to the relevance of documents that do not expressly refer to the Providence facility, such as “corporate policies that set standards for the resilience of its infrastructure to severe weather risks and climate change, as well as analyses of pollution discharges from other Shell facilities during major storms.” CLF argued that such documents were relevant because Shell had represented to the public and to regulators that it had a “centralized approach and process” to evaluating and addressing physical risks at its facilities while arguing in this litigation that management at individual facilities conduct climate change and severe weather risk analyses. CLF said the documents sought were relevant to the issue of whether defendants satisfied their obligation to adequately prepare the facility for severe weather and also to other issues, including what actions are required under the “good engineering practices” standard in the facility’s permit. The motion also addressed other disputes, including a disagreement over a time period limitation. Conservation Law Foundation, Inc. v. Shell Oil Products US, No. 1:17-cv-00396 (D.R.I. Jan. 4, 2022)

Puget Sound TMDL Lawsuit Included Allegations of Climate Change’s Contribution to Deteriorating Conditions

Northwest Environmental Advocates filed a Clean Water Act suit in the federal district court for the Western District of Washington asserting that EPA had violated its duty to develop total maximum daily loads (TMDLs) for the Puget Sound and that EPA’s approval of the Washington Department of Ecology’s “TMDL Alternative” was arbitrary, capricious, and contrary to law. The plaintiff alleged that projected increases in nitrogen pollution, combined with climate change, were expected to worsen dissolved oxygen levels in the Sound and that Washington had failed to submit any TMDLs for nitrogen and dissolved oxygen depletion despite evidence of worsening problems. The complaint asserted that EPA’s failure to act on Washington’s constructive submission of no TMDLs was a violation of the Clean Water Act and that approval of the TMDL Alternative was “inconsistent with the [Clean Water Act] mandate to establish TMDLs for waters that violate water quality standards.” Northwest Environmental Advocates v. EPA, No. 21CV01637 (W.D. Wash., filed Dec. 7, 2021)

Tribe Sought Review of Approvals for Liquefied Natural Gas Facility in Washington

The Puyallup Tribe of Indians filed a petition for review of Washington Pollution Control Hearings Board decisions affirming approvals for a liquefied natural gas facility. The Tribe’s petition raises climate change-related issues, including whether the supplemental environmental impact statement (SEIS) erroneously deemed status quo greenhouse gas emissions to be “insignificant” and whether the SEIS’s reliance on a comparison to a “speculative ‘no action’ scenario” to determine the project’s “net” emissions was arbitrary. Advocates for a Cleaner Tacoma v. Puget Sound Clean Air Agency, No. 21-2-08733-9 (Wash. Super. Ct., filed Dec. 16, 2021)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

New South African Case Opposed New Coal-Fired Power Plant

On November 10, 2021, three civil society organizations, the African Climate Alliance (ACA), Vukani Environmental Justice Movement in Action (VEM), and groundWork (gW) launched a youth-led constitutional challenge against South Africa’s Minister of Mineral Resources and Energy and the National Energy Regulator of South Africa (NERSA) concerning the government’s plans to procure 1500 MW of new coal-fired power electricity capacity (#CancelCoal case). According to plaintiffs, the procurement of 1500 MW of new coal-fired power represents a severe threat to the constitutional rights of the people of South Africa, especially their environmental rights, the best interests of the child, and the rights to life, dignity and equality, among others. On December 8, 2021, the first respondent, the Minister of Mineral Resources and Energy, gave notice that he will oppose the application. The plaintiffs have agreed to grant the first respondent an extension to January 20, 2022 to file the record of decision and reasons. After that, the plaintiffs will have an opportunity to supplement their papers. The President has given notice that he will not oppose the case, and will abide by the decision of the court. Africa Climate Alliance et. al., v. Minister of Mineral Resources & Energy et. al. (#CancelCoal case) (South Africa, High Court)

DECISIONS & SETTLEMENTS 

Decision on Jurisdiction Confirmed by Brazilian Appellate Court

On October 8, 2020, the Institute of Amazonian Studies (IEA) filed a class action against the Federal Government of Brazil, seeking recognition of a fundamental right to a stable climate for present and future generations under the Brazilian Constitution, and an order to compel the federal government to comply with national climate law. Plaintiffs allege that the federal government has failed to comply with its own action plans to prevent deforestation and mitigate and adapt to climate change, violating national law and fundamental rights. On August 20, 2021, the federal appellate court (TRF4) (through a decision from the reporting judge) suspended the lower court decision to transfer the case to a court in Amazonas and returned the case to the Federal District Court of Curitiba. The lower court had transferred the case on account of a connection with another pending case in Amazonas (the ecological hotspots case). However, the TRF4 found that the cases presented different typologies and structure, causes of action, and demands. The TRF4 found that this case has as its central objective to put pressure on the legislative and executive branches to ensure a stable climate. The ecological hotspots case, on the other hand, addresses matters related to environmental law, and does not have a central theme linked to Brazilian climate legislation. The decision also includes a lengthy discussion of the unique nature and importance of climate litigation. On December 7, 2021, the third chamber of the appellate court confirmed the decision. Institute of Amazonian Studies v. Brazil (Brazil, TRF4)

Plan B’s Case in the UK Failed to Move Forward

On May 1, 2021, Plan B Earth (an environmental charity) and four British citizens filed a petition for judicial review alleging that the UK government violated human rights by failing to implement effective measures to uphold its Paris Agreement commitments. The case was refused permission to proceed on the papers. On November 25, 2021, the case went to a renewal hearing for permission in the High Court. The court handed down its judgment on December 21, 2021, and permission to proceed was refused again. Plan B Earth and Others v. Prime Minister (UK, High Court of Justice)

Activist’s Appeal Denied by the UK Supreme Court

On May 10, 2021, Tim Crosland, unregistered barrister and director of the legal charity Plan B, was convicted of criminal contempt of court by a three-judge panel of the UK Supreme Court. He was ordered to pay a fine of £5000 as well as the costs of the Office of the Attorney General of the UK. At an appeal hearing on October 18, 2021, Tim Crosland argued that the Supreme Court judges had disregarded his justifications for breaching an embargo on the court’s judgment, put in doubt their independence and impartiality, and qualified the fine as “arbitrary and unjust.” On December 20, 2021, the Supreme Court rejected Crosland’s appeal and concluded he could have expressed his views after the judgment was made public. The justices noted that they saw no persuasive evidence that Crosland would not have been able to get his message across if he had complied with the embargo and refrained from discussing the outcome of the Heathrow appeal and his criticisms of the judgment until after it had been handed down. In a separate ruling, Lady Arden highlighted that Crosland’s conduct was “aggravated” by the fact that he is a qualified barrister and therefore would have been “particularly aware of the seriousness of not complying with the court’s directions.” She added: “A barrister plays an essential role in the administration of justice. He owes duties to the court.” Attorney General v. Crosland (UK, Supreme Court)

NEW CASES, MOTIONS, AND OTHER FILINGS

New Case Brought by Greenpeace on Disclosures of Partnerships Between the Louvre and TotalEnergies

On December 7, 2021, Greenpeace France brought an action before the Paris Administrative Court seeking disclosure of the partnership between the Louvre Museum and the TotalEnergies Foundation as well as the list of members of the Louvre Business Circle. The responsibility of public institutions that accept donations from large oil and gas companies is at stake. TotalEnergies has regularly funded exhibitions at the Louvre Museum for more than 20 years. This request comes five months after Greenpeace requested relevant documents from the Louvre Museum and Quai Branly Museum, which are both public institutions under the supervision of the Ministry of Culture. Under French administrative law, any person or legal entity has a right to access administrative documents and may, without having to justify their request, access documents held by the administration within the framework of its public service mission. This right is crucial to understand the decision-making processes and justifications of public policy decisions. While Quai Branly Museum has responded favorably and communicated all the requested partnership agreements signed since January 2015, the Louvre Museum has remained silent. Greenpeace filed a petition for abuse of power against the Louvre Museum for its implicit refusal to disclose administrative documents. Greenpeace France v. France (France, Paris Administrative Court)

European Court of Human Rights Communicated Case Against Norway

On June 15, 2021, the plaintiffs in Greenpeace Nordic Association v. Ministry of Petroleum and Energy appealed the decision of the Norwegian Supreme Court upholding licenses for deep-sea extraction to the European Court of Human Rights. The plaintiffs argue that the Norwegian government, in issuing the licenses for oil and gas exploration that will lead to emissions in 2035 and beyond, violated plaintiffs’ rights under Articles 2 (right to life) and 8 (right to privacy) of the European Convention on Human Rights. In addition, they argue that the Norwegian courts failed to adequately assess their claims and thus failed to provide plaintiffs access to an effective domestic remedy under Article 13. On December 16, 2021, the Court characterized the case as a potential “impact case” and communicated it to the Norwegian State. On January 10, 2022, the Court published a list of questions to the parties. Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (European Court of Human Rights)

Hearing Held in Italian Climate Case

On June 5, 2021, environmental justice NGO A Sud and more than 200 plaintiffs filed suit alleging that the Italian government, by failing to take actions necessary to meet Paris Agreement temperature targets, is violating fundamental rights, including the right to a stable and safe climate. The action, part of a campaign called Giudizio Universale (The Last Judgment), seeks a declaration that the government’s inaction is contributing to the climate emergency and a court order to reduce emissions 92% by 2030 compared to 1990 levels. On December 14, 2021, the first hearing was held before the Civil Court of Rome in the form of written notes (due to Covid-19 emergency). In its reply, the Presidency of the Council of Ministers requested the Court to declare the complaint inadmissible and, in any case, to dismiss the applicants’ claims on the merits. On the matter of fact, the reply describes in depth the State’s policies and endeavors on climate change. On the matter of law, the reply deals with: (i) the absence of jurisdiction of the civil judge over activities pertaining to the legislative and executive powers of the State; (ii) the lack of standing rights of the applicants; (iii) the impossibility of placing an individual responsibility on the Italian State for climate change and its impact. The applicants have until January 14, 2022, to submit their reply. A Sud et al. v. Italy (Italy, Civil Court of Rome)