January 2023 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 #166:

FEATURED CASE

Louisiana Federal Court Enjoined Enforcement of Moratorium on Carbon Sequestration Project Work

The federal district court for the Middle District of Louisiana enjoined the Livingston Parish Government and related parties from enforcing a moratorium on construction and drilling of Class V wells, seismic surveys, and other activities. The plaintiff had entered into a Carbon Dioxide Storage Agreement with the State of Louisiana and intended to build a carbon sequestration facility. The court rejected the Parish defendants’ arguments that the plaintiff lacked standing to challenge the moratorium and that the claims were unripe. The court further found that the plaintiff had shown a likelihood of success on the merits because the moratorium was preempted due to its encroachment on the field of underground injection control, an area in which the Louisiana Legislature granted the State pervasive authority to regulate. The court also found that the plaintiff faced irreparable harm and concluded that because State law preempted the moratorium, a preliminary injunction to enjoin the moratorium’s enforcement would serve the public interest and would not cause harm. Air Products Blue Energy, LLC v. Livingston Parish Government, No. 3:22-cv-00809 (M.D. La. Dec. 26, 2022)

 

DECISIONS AND SETTLEMENTS

Fourth Circuit Affirmed Dismissal of Environmental Groups’ Challenge to Trump Administration NEPA Regulations

The Fourth Circuit Court of Appeals affirmed the dismissal of environmental groups’ lawsuit challenging the 2020 amendments to the Council on Environmental Quality’s (CEQ’s) National Environmental Policy Act (NEPA) regulations. The Fourth Circuit found that challenges regarding direct, indirect, and cumulative effects, and reasonable alternatives to the extent they were required to prioritize applicants’ goals were moot due to CEQ’s adoption in 2022 of a rule that returned the regulatory language related to these issues to essentially what was in place prior to the 2020 rule. The Fourth Circuit further concluded that the plaintiffs lacked standing to assert claims related to the 2020 rule’s requirements for public comments and that the plaintiffs’ remaining claims were not ripe. Wild Virginia v. Council on Environmental Quality, No. 21-1839 (4th Cir. Dec. 22, 2022)

Ninth Circuit Denied Rehearing in NEPA Challenge to Southern California Air Cargo Facility

The Ninth Circuit Court of Appeals denied petitions for rehearing en banc of its decision rejecting NEPA challenges to an air cargo facility at the San Bernardino International Airport in southern California. The lawsuits were brought by the State of California and by the Center for Community Action and Environmental Justice, Sierra Club, Teamsters Local 1932, and two individuals. The petitioners’ claims included challenges to the Federal Aviation Administration’s conclusion that the project would not have a significant impact on greenhouse gas emissions. Center for Community Action & Environmental Justice v. Federal Aviation Administration, No. 20-70272 (9th Cir. Dec. 20, 2022)

D.C. Circuit Said FERC License for Maryland Dam Violated Clean Water Act

The D.C. Circuit Court of Appeals vacated the Federal Energy Regulatory Commission (FERC) license for the Conowingo Dam on the Susquehanna River in Maryland, finding that FERC had exceeded its authority under section 401(a)(1) of the Clean Water Act, which permits FERC to issue a license only if the state certifies that the dam will comply with water quality standards or waives its authority to make this certification. Maryland initially granted a certification but then attempted to withdraw it and waive its authority. The court did not address arguments under NEPA that FERC was required to supplement its environmental analysis to consider new information on dredging and climate change. The petitioners had contended that the new information received after FERC issued its environmental impact statement (EIS) in 2015 showed that sediment pollution would be far worse than acknowledged in the EIS. Waterkeepers Chesapeake v. Federal Energy Regulatory Commission, No. 21-1139 (D.C. Cir. Dec. 20, 2022)

Pennsylvania Federal Court Rejected Climate Change Arguments in Unsuccessful Challenge to Categorical Exclusion for Roadway Project

The federal district court for the Western District of Pennsylvania upheld the Federal Highway Administration’s (FHWA’s) approval of a NEPA categorical exclusion for a roadway project in the City of Erie. The court rejected the plaintiffs’ arguments that the FHWA had failed to examine significant impacts to and from climate change. First, the court said the argument that NEPA’s regulations required consideration of foreseeable indirect impacts, including greenhouse gas emissions from an increased number of vehicles on the road, was “misplaced” because the regulations applied only where an EIS was required. The court also agreed with the Pennsylvania Department of Transportation (PennDOT) that no regulation or federal standard established that the lack of a greenhouse gas emissions analysis under NEPA rendered an agency decision arbitrary and capricious. Second, the court found that based on PennDOT’s determination that the project was located entirely outside the 100-year floodplain, “it was reasonable to conclude that increased flooding resulting from climate change will not pose a significant risk.” National Association for the Advancement of Colored People Erie Unit 2262 v. Federal Highway Administration, No. 1:20-cv-00362 (W.D. Pa. Dec. 29, 2022)

Federal District Court Declined to Stay Remand Order in D.C.’s Climate Case Against Fossil Fuel Companies; D.C. Circuit Granted Administrative Stay

On December 20, 2022, the federal district court for the District of Columbia denied fossil fuel companies’ motion to stay execution of the court’s order remanding the District of Columbia’s lawsuit alleging that the companies violated D.C.’s consumer protection law by knowingly misrepresenting the effects of the companies’ products. On December 23, the D.C. Circuit granted the companies’ request for an administrative stay of the remand order pending the D.C. Circuit’s consideration of the companies’ emergency motion for a stay pending appeal. The district court found that the companies did not establish irreparable harm with their arguments regarding the potential litigation burden and the risk that a final judgment by the D.C. Superior Court could render their “right to appeal hollow.” Briefing on the emergency motion in the D.C. Circuit was scheduled to be completed by January 20. District of Columbia v. Exxon Mobil Corp., No. 1:20-cv-01932 (D.D.C. Dec. 20, 2022)

Oregon Federal Court Rejected Industry Groups’ Challenge to Worker Protection Rules for Heat and Wildfire Smoke

The federal district court for the District of Oregon dismissed manufacturing, commerce, logging, and forestry organizations’ lawsuit challenging State of Oregon rules that sought to protect workers from wildfire smoke and excessive heat. The plaintiffs alleged that the regulations violated their due process rights because the rules were too vague to provide fair notice to employers, and that the rules exceeded the agencies’ authority. The court held that sovereign immunity barred the claims against the State agencies as well as state law claims against individual State officials. The court further found that the complaint failed to state due process claims against the individual defendants because the rules were not vague in all circumstances. Oregon Manufacturers & Commerce v. Oregon Occupational Safety & Health Division, No. 1:22-cv-00875 (D. Or. Dec. 20, 2022)

Environmental Groups and Federal Defendants Settled 2020 Lawsuit Challenging Oil and Gas Lease in Wilderness Area

Environmental groups, federal defendants, and intervenor-defendants stipulated to the dismissal of the environmental groups’ challenge to an oil and gas lease encompassing public lands within the Labyrinth Canyon Wilderness in southeastern Utah. The plaintiffs’ allegations included that the U.S. Bureau of Land Management failed to adequately analyze the direct, indirect, and cumulative climate change impacts of greenhouse gas emissions associated with the lease. The plaintiffs and defendants reached a settlement in December 2022. One of the intervenor-defendants that stipulated to dismissal of the case noted that it had been left out of the settlement discussions. Southern Utah Wilderness Alliance v. Haaland, No. 1:20-cv-03654 (D.D.C. Dec. 13, 2022)

Corps of Engineers Said It Would Prepare Supplemental EIS for Ship Channel Expansion Project in Texas

On December 13, 2022, the U.S. Army Corps of Engineers notified the federal district court for the District of Columbia of its withdrawal of the record of decision for the Matagorda Ship Channel Improvement Project Feasibility Report and Environmental Impact Statement. Five environmental groups had challenged the Corps’ authorizations for the channel deepening and expansion project that was the subject of the record of decision, including for failing to disclose the climate impacts of a major new crude export site facilitated by the project. The Corps announced on December 5 that it would prepare a supplemental EIS due to a discrepancy between the quantity of dredged material evaluated in a 2019 EIS for the project and the quantity calculated more recently during the pre-construction, engineering, and design phase. San Antonio Bay Estuarine Waterkeeper v. Connor, No. 1:22-cv-01470 (D.D.C. Dec. 13, 2022)

Oregon Federal Court Said BLM Unreasonably Delayed Closure of Lands to Grazing

The federal district court for the District of Oregon found that the U.S. Bureau of Land Management (BLM) violated the Federal Land Policy and Management Act and the Administrative Procedure Act by failing to timely close research natural areas (RNAs) to livestock grazing in conformance with a 2015 land use plan intended to protect the greater sage-grouse. The court found that the 2015 land use plan was controlling, that closure of the RNAs was a discrete and legally required agency action, and that BLM had unreasonably delayed the closure. The court barred BLM from further authorizing grazing on the RNAs. The motions before the court did not address the plaintiffs’ NEPA claims, including their argument that BLM failed to consider the relationship of abandonment of the closures to global climate change. Oregon Natural Desert Association v. Bushue, No. 3:19-cv-1550 (D. Or. Dec. 7, 2022)

BLM to Prepare Supplemental EIS for California Central Coast Resource Management Plan

To resolve environmental groups’ lawsuit challenging a 2019 resource management plan that made 725,500 acres in BLM’s Central Coast Field Office planning area available for oil and gas leasing, the federal defendants agreed to prepare a supplemental EIS that would consider six alternatives analyzed in the 2019 EIS. The defendants also agreed that BLM would solicit and consider additional alternatives, coordinate with local governments and cooperate with them to the maximum extent consistent with federal law, and defer any oil or gas lease sales pending the issuance of a new decision document. Allegations in the complaint included that BLM failed to adequately analyze the plan’s impacts on greenhouse gas emissions and climate. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 3:19-cv-07155 (N.D. Cal. Dec. 5, 2022)

Federal Court Rejected Challenge to Long Island Municipalities’ Coastal Conservation District Zoning for Former Golf Course

Rejecting in part a magistrate judge’s recommendations, a federal court in New York dismissed claims brought by the owners of a former private golf club on Long Island to challenge zoning changes that applied a “Coastal Conservation District” (CCD) to the property. The defendant municipalities stated that a joint purpose of the CCD zoning was to manage climate change risks such as sea level rise, storm surge, and flooding. The court concluded that the owners’ takings and equal protection claims—including an exactions takings claim in which the plaintiffs asserted that the zoning required them to install flood mitigation improvements solely for the benefit of nearby residents—were not ripe because a final decision had not been made on the owners’ subdivision application. The court alternatively found that the plaintiffs failed to state an equal protection claim because they did not allege differential treatment from “similarly situated” parties. Although the court found that the owners’ procedural and substantive due process claims were ripe for adjudication, the court concluded that the plaintiffs failed to state a claim because they did not demonstrate their entitlement to approval of their subdivision application pursuant to the zoning rules that preceded the CCD zoning. The court dismissed state constitutional claims as either barred by the availability of a federal remedy or subject to the same legal standards that warranted dismissal of the federal constitutional claims. The court also found no clear error to the magistrate judge’s conclusion that adoption of the zoning laws violated the State Environmental Quality Review Act. The court declined to exercise supplemental jurisdiction over claims that the defendants exceeded their statutory authority and acted unlawfully. WG Woodmere LLC v. Town of Hempstead, No. 20-cv-03903 (E.D.N.Y. Dec. 1, 2022)

New Mexico Court Said Legislature and State Engineer Should Have Opportunity to Provide Guidance on Considering Climate Change in Water Appropriation Applications

The New Mexico Court of Appeals upheld a district court’s denial of an application to appropriate water from the Sandia Underground Water Basin for a multiple use development that included residential, commercial, resort, golf course, and open space uses. The appellate court upheld the district court’s determination that the application was not consistent with conservation. Although the appellate court found that substantial evidence supported the conclusion that the applicant did not consider the impacts of climate change in its analysis of water demand and hydrology, the appellate court did not rely on this finding as a basis for affirming the conservation determination, writing that it would instead provide “the State Engineer and the Legislature the opportunity to provide guidance regarding climate change and conservation before it is judicially imposed.” The appellate court also found that substantial evidence supported the district court’s determination that the application would impair as many as 100 wells. The appellate court rejected the argument that the district court had improperly required the applicant to show it had land use authorization for the entire project. Aquifer Science, LLC v. Verhines, No. A-1-CA-39080 (N.M. Ct. App. Dec. 15, 2022)

Washington Appellate Court Rejected Claims that Shoreline Master Plan Unlawfully Failed to Consider Sea Level Rise

The Washington Court of Appeals affirmed the Shorelines Hearing Board’s approval of the Grays Harbor County Shoreline Master Program (SMP) update. The court ruled that the Shoreline Management Act of 1971 and administrative rules governing SMPs did not require SMPs to address sea level rise beyond flood hazard regulations. The court also rejected arguments that the Grays Harbor County SMP provided inadequate protection against flooding in violation of statutory and regulatory requirements because it relied only on past data and not projections for future rising sea levels. In addition, the court found that the Board did not err when it concluded that the SMP was required to prevent no let loss of ecological functions from development, not from sea level rise itself. Similarly, the court found that the law did not require the Cumulative Impacts Analysis to evaluate and consider sea level rise. The court also rejected contentions that the SMP ignored evidence in the County’s Shoreline Analysis Report of sea level rise and its impacts and that Department of Ecology guidance mandated that SMPs address sea level rise. Friends of Grays Harbor v. State, No. 84019-3-I (Wash. Ct. App. Dec. 12, 2022)

Maryland Court Upheld Public Service Commission Approval of Solar Energy Facility

The Maryland Court of Special Appeals rejected Frederick County’s challenge to a Certificate of Public Convenience and Necessity granted by the Maryland Public Service Commission for a 20 megawatt solar energy generating system. The court disagreed with the County’s contention that the Commission did not give “due consideration” to the project’s consistency with the County’s comprehensive plan and zoning, as required by Maryland’s Public Utilities Article. The court noted that the Commission concluded that the four goals in the comprehensive plan regarding air quality, clean energy, greenhouse gas neutrality, and energy independence were consistent with the solar facility’s development in the County. The court also concluded that the Commission had preemptive authority and did not abuse its discretion in exercising that authority. In re Frederick County, No. 37 (Md. Ct. Spec. App. Dec. 8, 2022)

New York Court Allowed Green Amendment Claim to Proceed Against State and DEC Concerning Landfill

A New York Supreme Court allowed a plaintiff to proceed with a claim against the New York State Department of Environmental Conservation (DEC) and the State of New York under the year-old Green Amendment to the New York Constitution, which provides that “[e]ach person shall have a right to clean air and water, and a healthful environment.” The group alleged that DEC and the State violated their constitutionally protected rights by authorizing and permitting activities at a landfill that result in odors and fugitive emissions, including greenhouse gas emissions, and by failing to adequately use the State’s enforcement powers to control odors and fugitive emissions. The court dismissed the Green Amendment claim against the landfill’s operator, concluding that the Green Amendment did not authorize claims against private entities. The court also dismissed the Green Amendment claim against New York City, whose waste allegedly represents 90% of the waste disposed at the landfill. The court found that the City was “merely a customer” of the landfill whose garbage would be replaced by the garbage of another customer. The court also found that the City had no duty under the Green Amendment to police the landfill’s compliance with permits or to abate operational problems. Fresh Air for the Eastside, Inc. v. State, No. E2022000699 (N.Y. Sup. Ct. Dec. 7, 2022)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Updates for State and Local Government Climate Change Cases Against Fossil Fuel Companies

• Two amicus briefs were filed in support of fossil fuel companies’ petition for writ of certiorari seeking review of the remand order in Rhode Island’s climate case. Energy Policy Advocates contended that records it had obtained under the Rhode Island Access to Public Records Act showed that the lawsuit was an improper attempt to make climate change policy through the courts. A National Association of Manufacturers (NAM) amicus brief argued that climate change litigation must be heard in federal courts. NAM also filed similar amicus briefs in support of petitions for writ of certiorari in the County of San Mateo and City of Honolulu cases. In the City of Honolulu case, the U.S. Chamber of Commerce filed an amicus brief arguing that the Ninth Circuit misapplied the federal-officer removal statute. Shell Oil Products Co. v. State of Rhode Island, No. 22-524 (U.S.); Chevron Corp. v. County of San Mateo, No. 22-495 (U.S.); Sunoco LP v. City of Honolulu, No. 22-523 (U.S.)
• Justice Sotomayor granted fossil fuel companies’ application to extend their time for filing a petition for writ of certiorari seeking review of the Third Circuit Court of Appeals’ affirmance of remand orders in climate cases brought by the City of Hoboken and the State of Delaware. The new deadline is February 27, 2023. Delaware opposed the application, arguing that the extension would delay and prejudice the State. Chevron Corp. v. City of Hoboken, No. 22A528 (U.S. Dec. 16, 2022)
• Briefing on fossil fuel companies’ petition for writ of certiorari in Baltimore’s climate change case against the companies was completed on January 3, 2023. Mayor & City Council of Baltimore v. BP p.l.c., No. 22-361 (U.S.)
• In the federal district court for the District of South Carolina, two defendants asked for leave to file a sur-reply in opposition to the City of Charleston’s motion to remand its case to state court. The two companies argued that the City had raised a new argument in its supplemental reply that they could be liable under a failure to warn theory even if they did not participate in any alleged disinformation campaign. City of Charleston v. Brabham Oil Co., No. 2:20-cv-03579 (Dec. 30, 2022)

 

Rehearing Sought on Dismissal of Challenge to Biden Administration’s Social Cost of Greenhouse Gases

Missouri and 12 other states petitioned the Eight Circuit Court of Appeals for rehearing en banc of its decision affirming the dismissal of a challenge to the Biden administration’s social cost of greenhouse gas estimates. The states argued that the dismissal on standing grounds was inconsistent with Eighth Circuit precedent on standing for procedural challenges to substantive rules made without notice and comment. The states also contended that the panel’s decision raised “exceptionally important questions” regarding executive authority to exercise legislative rulemaking power. Missouri v. Biden, No. 21-3013 (8th Cir. Dec. 5, 2022)

FOIA Lawsuit Sought FEMA Records on Funding for Fossil Fuel as Opposed to Renewable Energy Projects

Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia asking the court to require the Federal Emergency Management Agency (FEMA) to respond to requests for records regarding FEMA funding of fossil fuel-related and renewable energy or energy efficiency projects as part of FEMA’s spending on disaster recovery and mitigation projects. CBD alleged that this funding often supported “status quo, fossil fuel-related infrastructure” such as diesel generators and rebuilding of power generation and transmission systems, “thereby exacerbating, rather than alleviating,” the environmental and public health harms faced by communities. CBD submitted its FOIA request to FEMA in December 2021 seeking records addressing a transition to renewable energy sources in FEMA assistance programs as well as information about FEMA funding of fossil fuel infrastructure, renewable energy resources, utilities, energy efficiency, and utility bill assistance for fiscal years 2018 to 2021. CBD alleged that FEMA had not produced any records or provided a timetable for doing so. Center for Biological Diversity v. Federal Energy Management Agency, No. 1:23-cv-00011 (D.D.C., filed Jan. 4, 2023)

Environmental Groups Challenged Offshore Oil and Gas Lease Sale in Alaska

A lawsuit filed by environmental groups in the federal district court for the District of Alaska challenged the Bureau of Ocean Energy Management’s (BOEM’s) final EIS and record of decision for an oil and gas sale in federal waters of Cook Inlet, Alaska. The Inflation Reduction Act of 2022 required that the sale be conducted by the end of 2022. The final EIS’s alleged shortcomings included that the greenhouse gas emissions analysis “was based on flawed modeling and failed to provide a meaningful assessment of the significance of the emissions in the context of the global climate crisis.” Among other things, the final EIS “failed to meaningfully assess how the projected greenhouse gas emissions … affect the ability to limit global warming to 1.5℃.” The complaint also alleged that BOEM failed to consider a reasonable range of alternatives, including an alternative that would offer less area for sale or reduce the level of oil and gas activities. Cook Inletkeeper v. U.S. Department of the Interior, No. 3:22-cv-00279 (D. Alaska, filed Dec. 21, 2022)

Trade Groups Alleged that Biden Administration Violated Law by Failing to Hold Lease Sales

Two oil and gas trade groups filed a lawsuit asking a federal court in Wyoming to direct federal defendants to adopt an oil and gas lease sale schedule in compliance with the Mineral Leasing Act’s requirement that sales be held “for each State where eligible lands are available at least quarterly.” The petition for review alleged that the U.S. Bureau of Land Management (BLM) had not conducted an onshore oil and gas lease sale since June 2022 and that no lease sales were planned for the first quarter of 2023. The petition asserted that the failure to conduct lease sales during the third quarter of 2022 violated the Mineral Leasing Act’s express terms and that the failure to explain why no sales were conducted was arbitrary and capricious. The petitioners alleged that BLM’s scheduling and administering of the leasing program was inconsistent with and exceeded its statutory obligations and did not comply with required procedures. Western Energy Alliance v. Haaland, No. 1:22-cv-00252 (D. Wyo., filed Dec. 5, 2022)

Youth Plaintiffs Appealed Dismissal of Climate Case Against State of Utah

On January 3, 2023, youth plaintiffs filed a notice of appeal of a Utah court’s dismissal of their lawsuit asserting that the State of Utah’s energy policies violated their rights under the Utah constitution. Natalie R. v. State, No. 220901658 (Utah Dist. Ct. Jan. 3, 2023)

Environmental Groups Challenged Maryland Industrial Stormwater Permit, Including for Failure to Consider Climate Change

Environmental groups filed three lawsuits in Maryland Circuit Court challenging the Maryland Department of the Environment’s final Industrial Stormwater General Permit. The groups cited “major flaws” in the permit, including failure to consider the impact of climate change and reliance on outdated precipitation data to inform storm design standards. Lawsuits Challenging Maryland Industrial Stormwater General Permit (Md. Cir. Ct., filed Dec. 16, 2022)

Lawsuit Challenged Approval of New Warehouse and Distribution Center in Southern California

A lawsuit filed in California Superior Court challenged San Bernardino County’s approval of a plan for a major warehouse and distribution center in the Bloomington community. The petition asserted violations of the California Environmental Quality Act (CEQA), including failure to adequately disclose, analyze, and mitigate the project’s greenhouse gas emissions. The petition alleged that the environmental review used improper values and assumptions in its analysis of greenhouse gas emissions, or failed to disclose values and assumptions such as emissions factors for methane and nitrous oxide emissions. In addition, the petition alleged reliance on improper assumptions regarding traffic as well as reliance on ineffective mitigation measures. The petition also asserted that the County violated its duty to affirmatively further fair housing, the Fair Employment and Housing Act, and the Housing Crisis Act of 2019. People’s Collective for Environmental Justice v. County of San Bernardino, No. __ (Cal. Super. Ct., filed Dec. 14, 2022)

Lawsuit Challenged Lower Manhattan Resiliency Project that Would Demolish and Rebuild Park

A neighborhood group and individual resident of Battery Park City in lower Manhattan filed a lawsuit in New York Supreme Court challenging the Battery Park City Authority’s (BPCA’s) approval of a plan that would, as part of a climate resiliency project, demolish an existing park at the southern tip of Manhattan and construct a buried floodwall and reconstruct an elevated park. The petitioners alleged that BPCA based its rejection of an alternative resiliency plan based on unreasonable and incorrect assumptions about storm surge, sea level rise, and wave action. They asserted that BPCA had violated the State Environmental Quality Review Act. They sought a preliminary injunction, arguing that the community would suffer irreparable harm from the existing park’s closure and demolition. Battery Park City Neighborhood Association v. Battery Park City Authority, No. 160624/2022 (N.Y. Sup. Ct., filed Dec. 14, 2022)

Center for Biological Diversity Challenged California Agency’s Reliance on 1990s CEQA Documents for Oil Well Approvals

Center for Biological Diversity (CBD) filed a lawsuit challenging the California Department of Conservation Geologic Energy Management Division’s (CalGEM’s) approval of 17 oil and gas wells in Los Angeles and Kern Counties. CBD contended that CalGEM violated the California Environmental Quality Act (CEQA) by approving the well permits without adequate environmental review. The petition alleged that CalGEM relied on “antiquated, inapplicable, and inadequate environmental reviews of other agencies” that were conducted in the 1990s. The petition alleged that the CEQA documents were inadequate, including because they did not consider or disclose new information that had emerged since they were prepared about oil drilling’s significant impacts. The petition alleged that the CEQA documents did not mention greenhouse gases. Center for Biological Diversity v. California Geologic Energy Management Division, No. __ (Cal. Super. Ct., filed Dec. 1, 2022)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASES

Commission of Small Island States on Climate Change and International Law Filed Request for Advisory Opinion from ITLOS

On December 12, 2022, the Co-Chairs of the Commission of Small Island States on Climate Change and International Law (the Commission), representing the Commission pursuant to Article 3(3) of the Agreement for the Establishment of the Commission, submitted a request for an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS or the Tribunal) on the legal questions set out below. The Commission referred the following legal questions to the Tribunal for an advisory opinion:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea, including under Part XII:
(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification? Request for advisory opinion from ITLOS (ITLOS)

Australian Court Recommended Rejection of Mining Lease Based on Potential Climate-Related Human Rights

On May 13, 2020, the environmental group Youth Verdict lodged an objection to the proposed Galilee Coal Project in the Queensland Land Court on human rights grounds. The plaintiffs allege that by contributing to climate change, the mine will infringe on their right to life, the protection of children, and the right to culture as protected by the Queensland Human Rights Act. Thus, approval of the mine would be unlawful. The Galilee Coal Project had received federal approval but needed a recommendation that it be approved by the Queensland Land Court before the environmental authority and mining lease could be granted by the Queensland Department of Environment and Science and Minister for Resources, respectively. The recommendations are not finally determinative but must be considered by the Minister for Natural Resources Mines and Energy and by the Chief Executive of the Department of Environment and Science when making a final decision on the mining lease. On August 28, 2020, the court denied the defendant’s motion to dismiss the case. On November 25, 2022, the Queensland Land Court recommended that the Mining Lease and Environmental Authority respectively be rejected. In reaching this decision the Court considered factors including climate change, the economic and social benefits and costs, and the limitation of human rights associated with the Project. The court found that the development of the Project would unjustifiably limit the right to life, the protection of children, the right to culture of First Nations People, the right to property, the right of certain groups to enjoy human rights without discrimination, and the right to privacy and home. Youth Verdict v. Waratah Coal (Australia, Queensland Land Court)

 

DECISIONS & SETTLEMENTS 

EU Court of Justice Expanded Rights of Environmental NGOs to Bring Actions Under Aarhus Convention

Volkswagen AG, a German company, used a technology on some of its cars to control and reduce nitrogen oxide (NOx) emissions. The software operating the exhaust gas recirculation (EGR) system was programmed in such a way that, under normal conditions of use, the EGR rate was reduced. In its European Commission (EC) type-approval procedure, the Kraftfahrt-Bundesamt (the German Federal Motor Transport Authority, the “KBA”) found that the software constituted a defeat device prohibited by Regulation No 715/2007. Volkswagen updated the software by setting the EGR valve so exhaust gas purification was fully effective only when the outside temperature was greater than 15°C. The KBA approved that temperature window in its decision of June 20, 2016. Deutsche Umwelthilfe, an environmental and consumer protection group, started a legal proceeding against Germany challenging the software’s authorization before the Administrative Court in Schleswig-Holstein, contending that the approved temperature window constituted a defeat device prohibited by the law of the European Union (EU law). The administrative court decided that Deutsche Umwelthilfe lacked standing to bring the challenge under German law. The court asked the Court of Justice of the EU (ECJ) in a preliminary reference whether the environmental organization might have standing based directly on EU law, in particular the Aarhus Convention on access to information, public participation in decision-making, and access to justice in environmental matters, read in conjunction with the Charter of Fundamental Rights of the European Union. The administrative court also ruled that the temperature window constitutes a defeat device but asked the ECJ whether the window can be justified under the exception in Regulation No 715/2007 that “the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle.” On November 8, 2022, the ECJ answered that an administrative decision relating to EC type-approval, which may be contrary to EU law, falls within the material scope of Article 9(3) of the Aarhus Convention, since it constitutes an act of a public authority that is alleged to contravene the national environmental provisions. An environmental association has standing under Article 9(3) of the Aarhus Convention if it meets the conditions under national law to bring legal proceedings. The ECJ also noted that member states must comply with the right to an effective remedy, enshrined in Article 47 of the Charter, when establishing the applicable procedural rules. Member states cannot impose criteria so strict that it would be impossible for environmental associations to challenge the acts or omissions that are the subject of the Aarhus Convention. The ECJ concluded that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, precludes a situation where such an association is unable to challenge a decision granting or amending EC type-approval which may be contrary to EU law. A defeat device can be justified by a need to protect the engine against damage or accident and for the safe operation of the vehicle. The ECJ held that such a justification only exists if the device strictly meets the need to avoid immediate risks of damage or accident to the engine of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. The need for such a defeat device exists only if no other technical solution makes it possible to avoid the above-mentioned risks. The opposite conclusion could result in the exception being applied more frequently than the prohibition and would result in a disproportionate infringement of the principle of limiting NOx emissions. Deutsche Umwelthilfe v. Germany (EU, European Court of Justice)

Australian Court Found that Approval of Barossa Offshore Gas Field Failed to Meet Consultation Requirements of Tiwi Islanders

The applicant, Munupi Senior Lawman and Tiwi Traditional Owner Dennis Tipakalippa, is from the Tiwi islands, a biodiversity haven approximately 80 kilometers north of the Australian city of Darwin. The applicant sued the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), the Australian Government’s offshore energy regulator, and an oil and gas company, Santos Limited, over the approval of plans to drill the Barossa gas field in waters off Northern Australia. The applicant claimed that NOPSEMA did not have jurisdiction because the requisite consultations with the applicant were not carried out.

Proceedings regarding an application for an interlocutory injunction restraining Santos from commencing or continuing offshore drilling until the expedited final hearing, which was scheduled for six weeks after the proceedings for interlocutory relief, commenced on July 13, 2022. After accepting that the applicant had demonstrated a prima facie case, the injunction was denied on the basis that drilling would not have gotten underway to a significant extent by the time the hearing came about and based on earlier representations made by the applicant indicating he was prepared to accept harm occasioned by the drilling of one well over a short period in order to be availed of the opportunity to stop the vast majority of the approved drilling at an expedited hearing. In a decision issued on September 21, 2022, the Federal Court of Australia found that NOPSEMA was not lawfully satisfied that consultation had occurred. An order was made to set aside the decision approving Santos Limited’s drilling plans. Work has been paused on the project, and Santos Limited will be unable to continue the project without the approval. The decision was appealed to the Full Court, which dismissed the appeal on December 2, 2022. Dennis Murphy Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority & Anor (Australia, Federal Court of Australia)

South African Court Set Aside Shell’s Exploration Right to Conduct Seismic Surveys Off South Africa’s Coastline

On November 29, 2021, four environmental and human rights organizations (Sustaining the Wild Coast NPC, Mashona Dlamini, Dwesa-Cwebe Communal Property Association, and four others) filed an application in the High Court of South Africa (Eastern Cape Division, Grahamstown) against respondents Minister of Mineral Resources and Energy; Minister of Environment, Forestry and Fisheries; Shell; and Impact Africa. The application sought an interdict prohibiting the respondents from proceeding with seismic surveys off the eastern coast of South Africa in 2021-2022. On December 17, 2021, the South African High Court held a hearing on Part A (an application for an interdict where the applicants sought an order interdicting the respondents from proceeding with a seismic survey pending the finalization of the relief). The Court delivered the judgement on December 28, 2021. The Court found that these requirements for an interdict were satisfactorily met by the applicants. It ruled that the exploration right which was awarded without regard to the applicants’ right to meaningful consultation constituted a prima facie violation of their right which deserves to be protected by way of an interim interdict. A hearing regarding Part B of the case was held on May 30-31, 2022. The High Court of South Africa (Eastern Cape Division, Makhanda) delivered a judgment regarding Part B on September 1, 2022. The principal question was whether the grant of an exploration right for oil and gas, resulting in the need to conduct a seismic survey along the South Coast of South Africa was lawful. The court was satisfied that the grounds for review in terms of the Promotion of Administrative Justice Act 3 of 2000 with regards to the granting of the exploration right were met, and it was thus set aside, together with the right to renew. The judgment had the effect of setting aside an exploration right that would have enabled Shell to conduct seismic surveys off South Africa’s coastline in its search for oil and gas reserves. In regard to the climate change impacts of the proposed seismic surveys, the Court referred to the applicants’ submissions regarding observed climate change impacts—including more unpredictable weather patterns and more extreme weather events—as well as expert testimony relating to unburnable fossil fuel reserves (i.e., most fossil fuel reserves should remain unextracted in order to limit the global temperature increase to 1.5℃) and the inconsistency of further oil and gas exploitation with South Africa’s international climate change commitments. The Court also found that the decision-maker had failed to take into account the considerations referred to in the Integrated Coastal Management Act 24 of 2008, which obliges the State, as the public trustee of coastal public property, to ensure that coastal public property is managed and conserved on behalf of all South Africans, including future generations. Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others (South Africa, High Court)

New Zealand Court Dismissed Challenges to the Climate Change Response Act

New Zealand’s Climate Change Response Act 2002 (as amended 2019) sets a goal of net-zero emissions by 2050 and creates a Climate Change Commission (Commission) to provide periodic advice to the government in meeting that goal. On July 1, 2021, a group of New Zealand lawyers sued the Commission and the Minister for Climate Change arguing that several pieces of advice provided by the Commission had violated New Zealand administrative law because (i) the Commission’s advice was based on a faulty methodology and impermissibly inconsistent with the Intergovernmental Panel on Climate Change’s (IPCC’s) approach on net emissions, (ii) the Commission’s advice on the emissions budget for the 2050 goal disregarded the 1.5℃ limit, (iii) the Commission’s accounting to budgets and targets on forestry stocks and emissions disregarded the United Nations Framework Convention on Climate Change’s approach, and (iv) the Commission’s budget advice would allow for emissions to increase over the 2010-2030 period. On November 3, 2021, the applicants filed an amended statement of claim to also challenge New Zealand’s updated first nationally determined contribution (NDC) under the Paris Agreement to the extent that it relies on the Commission’s NDC advice. On November 23, 2022, the High Court rejected all four claims. First, it found that though the Commission’s advice departed from IPCC modeling techniques and that this “had the potential to mislead,” this departure was permissible because the Commission did “not intend to make a direct mathematical comparison,” and instead used the IPCC modeling “only as an indirect comparator.” The Commission was entitled to adopt the gross-net accounting methodology to avoid New Zealand being penalized for its historically high rate of reforestation. The Court found that the Minister was aware of the potential to be misled, and had understood that the emissions cuts recommended by the Commission were not necessarily in line with the IPCC global pathway. Instead, it represented a value judgment that New Zealand should not be disadvantaged relative to other wealthy countries because of its historical forestry position. Second, the Court found that the Commission had correctly understood its role as being to provide budgeting advice on achieving both the 2050 net-zero target, while keeping in mind a broad commitment to contributing to the global 1.5℃ effort. Importantly, the Court found that the 1.5℃ target—which was included only in the purposive section of the domestic legislation—was “an aspiration rather than an obligation” for the purposes of domestic law. The CC Commission was required only to consider statutory factors related to the 2050 net-zero target, while keeping the 1.5℃ target in mind. The Commission’s budget advice had satisfied these obligations. Third, the Court found that the Commission was entitled to recommend the MAB accounting method, as the legislation did not mandate the use of any particular accounting methodology. Instead, it found that the Climate Change Response Act permitted the Commission “to advise the Minister to decide on the methodology by which progress against our emission budgets are to be measured.” Finally, the Court found that the Commission’s advice was not ultimately irrational or unreasonable, and instead “reflected New Zealand’s particular circumstances as a developed country, but with significant commercial forestry with cyclical swings.” Even though the Commission’s advice would fail to reduce net emissions by 2030, the legislation did not require emissions reductions by that date, and instead was only required to meet the net-zero 2050 target. It was open to Parliament to decide to make “less of a contribution to that [net-zero] goal up to 2030 … but a contribution that was better than the IPCC global pathways in a short time thereafter.” Lawyers for Climate Action NZ Incorporated v. The Climate Change Commission (New Zealand, High Court)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Case Challenges Finland’s Lack of Implementation of Climate Norms for Failing to Protect Carbon Sinks

Finland’s Climate Act (423/2022) was amended to include new provisions on the climate plans of municipalities and appeals concerning decisions made under the Climate Act. According to section 16 of the Finnish Climate Act, “[t]he Government shall monitor the implementation of the climate policy plans […] adequately to determine whether the targets concerning climate change mitigation and adaptation set out in the plans and the objectives referred to […] will be achieved. On the basis of the monitoring, the Government shall, if necessary, decide on the additional measures required to achieve the targets.” The Climate Act sets a binding target of reaching carbon neutrality by 2035 as recommended by Finland’s Climate Council. However, the collapse of Finland’s carbon sinks in 2021 has created a situation where the government’s climate policy plans are insufficient for meeting the Climate Act’s targets. The reason is due to the intensive forest logging and the slowing down of forest growth that has become a source of greenhouse emissions.

The Finnish Association for Nature Conservation (FANC) and Greenpeace filed an appeal at the Supreme Administrative Court in Finland alleging a breach of the Finnish Climate Act, essentially claiming that the Finnish Government has neglected its duty to properly assess and decide on the need for additional measures pertaining to climate change mitigation when it decided to provide the Finnish Parliament with the Annual Climate Report. The environmental groups argued that the government had ignored its own laws by failing to protect the Nordic nation’s carbon sinks which have fallen below the climate plans so that the plans fail to comply with the Climate Act. The environmental groups demanded that the Finnish Government’s decision with respect to the Annual Climate Report 2022 be revoked and redrafted. The environmental organizations specifically refer to the obligations under the Paris Agreement, arguing that “Greenpeace and the Finnish Nature Conservation Union believe it is important to seek guidance from the court on whether the monitoring and updating of the progress of climate action works as it should according to the law and the parliament intention to act in the light of the statements. At the same time, it is the first time that more effective implementation of climate measures is demanded in Finland through legal channels.” The next step is for the Supreme Administrative Court to assess the procedural requirements and decide whether it will consider the organizations’ claim. Finnish Association for Nature Conservation and Greenpeace v. Finland (Finland, Supreme Administrative Court)

Carbon Market Watch Brought Greenwashing Complaint Against FIFA

In December 2022, Carbon Market Watch, a not-for-profit association, launched a complaint against the international governing body of association football, beach football, and futsal (FIFA) before the Belgian advertisement ethics panel. Similar claims have simultaneously been launched in France, the Netherlands, the United Kingdom, and Switzerland. Carbon Market Watch alleges that FIFA’s advertising of the 2022 World Cup in Qatar as “carbon neutral” is misleading and false, and violates the rules of codes of the Belgian advertisement ethics panel. In particular, they argue that the “carbon neutral” nature of this World Cup has not been certified or validated by any independent body, that the methodology used by FIFA to measure its “carbon neutrality” was erroneous and resulted in a significant underestimation, and that FIFA also failed to meet its obligations in terms of offsetting to support its carbon neutrality communication. The relevant authorities in Belgium, France, the Netherlands, the United Kingdom, and Switzerland announced that all five complaints would be examined jointly by the Swiss authorities. Carbon Market Watch v. FIFA (Belgium, Belgian advertisement ethics panel)

Notre Affaire à Tous Brought Greenwashing Complaint Against FIFA

In November 2022, Notre Affaire à Tous, a not-for-profit association, filed a complaint with the Jury de Déontologie Publicitaire (French advertisement ethics self-regulatory organization) against the International Association Football Federation (FIFA) for misleading advertising (greenwashing). Similar complaints for misleading advertising have been filed in the United Kingdom, Switzerland, Belgium, and the Netherlands to challenge the carbon neutrality claims of the Qatar World Cup. These complaints allege that FIFA has made a commitment to consumers and spectators to organize a carbon neutral tournament by reducing and offsetting greenhouse gas (GHG) emissions. Specifically, Notre Affaire à Tous claims that there is a lack of clarity of statements regarding environmental and climate performance of the 2022 World Cup. FIFA presented short and punchy messages, using superlatives on several occasions by calling the World Cup “the most compact” and “the most carbon-neutral in history.” The complaint contends that to be accurate, such messages must be supported in a way that is understandable and comprehensible for the public to which they are addressed (section 4 of the ARPP’s (the French advertising self-regulatory organization’s) Recommendation on sustainable development), especially in complex systems such as those presented here (section 9 of the Recommendation on sustainable development). According to the complainant, such statements are false as shown in a report by the NGO Carbon Market Watch, which found that the carbon neutrality claims made by the FIFA were based on a considerable underestimation of the GHG emissions generated by the organization of the World Cup. FIFA’s claims on its website that the World Cup in Qatar will be “the most compact in history” or “the most compact edition of the competition since 1930” are based on the reduced distance between the stadiums, which will “significantly reduce carbon emissions caused by transportation, teams, officials and fans,” and result in “the elimination of domestic flights during the competition.” Notre Affaires à Tous claims that these allegations are false in light of the promotion of “shuttle flights” by several airlines in the Gulf region, which shuttled fans residing in Dubai, United Arab Emirates, or Muscat, Oman. FIFA has chosen to “green” the carbon footprint of the 2022 World Cup by using “carbon offsetting” mechanisms that are not in line with international standards. Notre Affaire à Tous explains that offsetting should normally be a last resort, if emissions cannot be reduced. Notre Affaire à Tous therefore considers that these carbon neutrality claims are likely to mislead soccer fans, partners, consumers, and spectators watching on television. The relevant authorities in Belgium, France, the Netherlands, the United Kingdom, and Switzerland announced that all five complaints would be examined jointly by the Swiss authorities. Notre Affaire à Tous v. FIFA (France, Jury de Déontologie Publicitaire)