July 2022 Updates to the Climate Case Charts

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #160:

FEATURED CASE

Supreme Court Said Obama Administration Regulation of Power Plant Carbon Emissions Exceeded EPA’s Authority

In a 6-3 decision, the U.S. Supreme Court applied the “major questions doctrine” and held that Section 111(d) of the Clean Air Act did not give the U.S. Environmental Protection Agency (EPA) the authority to use “generation-shifting” measures to set carbon dioxide emission limits for power plants. In doing so, the Court reversed the D.C. Circuit’s January 2021 decision that found that the Trump administration’s repeal and replacement of the Obama administration’s Clean Power Plan was based on a too-narrow construal of EPA’s authority under Section 111(d). The Clean Power Plan used generation-shifting measures as two of the three “building blocks” for the “best system of emission reduction” for power plants under Section 111(d). One building block shifted electricity production from coal-fired to natural gas-fired units, and another shifted generation to low- or zero-carbon sources such as wind and solar. 

In the majority opinion by Chief Justice Roberts, the Court first determined that state petitioners, led by West Virginia, had standing because the D.C. Circuit’s judgment “purports to bring the Clean Power Plan back into legal effect,” which would require the states to “more stringently regulate power plant emissions within their borders.” The Court said the government’s arguments on standing—i.e., that EPA did not intend to enforce the Clean Power Plan but instead to develop a new Section 111(d) rule and that the D.C. Circuit had stayed the portion of its judgment that vacated the Clean Power Plan’s repeal—implicated mootness, not standing. The Court further concluded that EPA’s “voluntary cessation” of enforcement of the Clean Power Plan did not meet the heavy burden of establishing that the case was moot. 

On the merits, the Court determined that this was “a major questions case” under Court precedents dictating that “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” The Court described “extraordinary cases” as ones “in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” In such cases, the Court wrote, there must be “something more than a merely plausible textual basis for the agency action,” and so an agency “must point to ‘clear congressional authorization’ for the power it claims.” The Court identified factors that made this case a major questions case: EPA argued that Section 111(d) “empowers it to substantially restructure the American energy market” based on “an unheralded power” discovered “in a long-extant statute”; this asserted power was found in the “vague” language of an “ancillary” provision of the statute (i.e., Section 111(d), which the Court also referred to as a “previously little-used backwater”); and EPA’s interpretation “allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.” The Court said that prior to the Clean Power Plan, EPA had always set Section 111 emission limits based on measures that would cause the regulated source to operate more cleanly, and that the Clean Power Plan’s generation-shifting plan therefore was “unprecedented” and “effected a ‘fundamental revision’” of the Clean Air Act’s regulatory scheme. Having found that its precedent “counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach,” the Court then determined that Section 111(d)’s “vague statutory grant” of authority to EPA to establish emission limits at a level reflecting “the application of the best system of emission reduction … adequately demonstrated” was “not close to the sort of clear authorization required by our precedents.” The Court also found that examples of other Clean Air Act provisions that describe cap-and-trade or sector-wide mechanisms for reducing pollution as systems did not support the argument that such a mechanism would be a “system of emission reduction” under Section 111(d). The Court noted, however, that it was not addressing whether “system of emission reduction” must exclusively refer “to measures that improve the pollution performance of individual sources” (sometimes referred to as inside-the-fenceline measures). 

Justice Gorsuch wrote a concurring opinion, joined by Justice Alito, that offered “additional observations” on the major questions doctrine and when it applies. This concurrence spoke favorably of the nondelegation doctrine. Justice Kagan wrote the dissent, joined by Justices Breyer and Sotomayor. The dissent described the majority’s decision as “really an advisory opinion on the proper scope of the new [Section 111(d)] rule EPA is considering” since no party was currently subject to the Clean Power Plan’s terms. The dissent stated that “[t]he limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote,” which in the dissent’s view “broadly authorized” EPA to set the “best system of emission reduction.” The dissent said that a “key reason” for Congress to make broad delegations like the one in Section 111(d) is so that “expert” agencies “can respond, appropriately and commensurately, to new and big problems.” West Virginia v. EPA, No. 20-1530 (U.S. June 30, 2022)

 

DECISIONS AND SETTLEMENTS

Ninth Circuit Affirmed Remand Orders in Honolulu and Maui Cases

Noting that it was not writing on a “blank slate” and citing its earlier decision in County of San Mateo v. Chevron Corp. as well as decisions of the First, Fourth, and Tenth Circuits, the Ninth Circuit Court of Appeals found that fossil fuel company defendants could not show federal jurisdiction in climate change lawsuits brought by the City and County of Honolulu and the County of Maui. The Ninth Circuit therefore affirmed the remand of the cases to state court. At issue in these appeals were jurisdiction under the federal-officer removal statute, federal enclave jurisdiction, and jurisdiction under the Outer Continental Shelf Lands Act (OCSLA). Regarding federal-officer removal jurisdiction, the Ninth Circuit rejected arguments that the defendants acted under federal officers in connection with production of oil and gas under the Defense Production Act, when they repaid offshore oil leases in kind and contracted with the government to operate the Strategic Petroleum Reserve, when they conducted offshore oil operations, or when they operated the Elk Hills oil reserve. The Ninth Circuit further found that even if the defendants did operate under a federal officer, they failed to cite federal defenses that stemmed from official duties and were colorable. Regarding federal enclave jurisdiction, the Ninth Circuit said the defendants’ oil and gas operations on federal enclaves were too remote from the plaintiffs’ asserted injuries (i.e., climate change harms arising from the defendants’ allegedly deceptive conduct). Regarding OCSLA jurisdiction, the Ninth Circuit found that the companies’ exploration, development, and production on the Outer Continental Shelf was “too attenuated and remote” from the plaintiffs’ alleged injuries. The court said ruling for the defendants would “dramatically expand” OCSLA’s scope and lead to “unstable” results. City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir. July 7, 2022)

First Circuit Denied Rehearing on Affirmance of Remand Order in Rhode Island Climate Case

On July 7, 2022, the First Circuit Court of Appeals denied fossil fuel companies’ petition for rehearing and rehearing en banc of the First Circuit’s affirmance of the district court’s remand of Rhode Island’s climate case to state court. The companies first argued that the First Circuit was at odds with “a mostly unbroken string of cases” applying federal law to interstate air pollution disputes. The companies also argued that the First Circuit panel had confused the effect of the Clean Air Act’s displacement of federal common law of interstate pollution. The defendants contended that the displacement was of any remedy under federal common law, not displacement of the “exclusively federal source of law.” They further argued that the First Circuit’s consideration of this issue was at odds with First Circuit precedent, other circuits’ decisions, the position of the United States, and Supreme Court decisions. Sixteen states, led by Indiana, filed an amicus brief in support of the rehearing petition. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir. July 7, 2022)

Ninth Circuit Denied Rehearing on Remand of California Local Government Climate Cases 

On June 27, 2022, the Ninth Circuit Court of Appeals denied fossil fuel companies’ petition for rehearing en banc of the court’s decision affirming the remand to state court of climate change cases brought by six local governments in California. The panel voted unanimously to deny the petition, and no Ninth Circuit judge requested a vote on whether to rehear the matter en banc. On June 30, the court granted the companies motion to stay issuance of the mandate pending the filing and disposition of a petition for writ of certiorari in the Supreme Court. In the motion to stay the mandate, the companies argued that the Ninth Circuit’s decision had “deepened an entrenched circuit split and is in significant tension with longstanding Supreme Court precedent” related to “whether nominally state-law claims that, because of our constitutional structure, are necessarily and exclusively governed by federal law alone, are removable to federal court.” The companies further argued that the potential harm posed by remand of the six cases to four different state courts justified stay of the mandate. County of San Mateo v. Chevron Corp., No. 18-25499 (9th Cir. June 27, 2022)

D.C. Circuit Upheld FERC Approvals for Extension of Mountain Valley Pipeline

The D.C. Circuit Court of Appeals denied a petition for review challenging Federal Energy Regulatory Commission approvals of a new natural gas pipeline project extending the Mountain Valley Mainline System Project from its terminus in Virginia to facilities in North Carolina. The court found that FERC’s National Environmental Policy Act (NEPA) review was adequate and also found that FERC acted reasonably in approving the developer’s initial rate of return on equity. The petitioners’ NEPA claim focused on sedimentation and erosion impacts. Their arguments included that FERC relied on mitigation measures that had proven to be ineffective on the Mainline Project. The petitioners said FERC had ascribed the Mainline Project’s failures to “record-breaking precipitation” in 2018 and had failed to address that climate change would be expected to result in more severe storms in the future. The D.C. Circuit did not directly address the climate change point, but noted that FERC did not expect the 2018 precipitation level to repeat and that measures had been proposed to avoid erosion and sediment control issues. The court also said that “[o]n the whole, Petitioners’ criticisms miss the point of the mitigation measure discussion as an ‘information-forcing’ exercise” since NEPA does not mandate a mitigation plan. Sierra Club v. Federal Energy Regulatory Commission, No. 20-1427 (D.C. Cir. June 28, 2022) 

D.C. Circuit Declined to Vacate Conservation Standards for Commercial Packaged Boilers

On June 1, 2022, the D.C. Circuit Court of Appeals denied a motion to vacate a 2020 U.S. Department of Energy (DOE) rule that set energy conservation standards for commercial packaged boilers that were more stringent than the standards of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). The court had found in January 2022 that DOE did not provide the requisite justification for promulgating the more stringent standards and gave DOE 90 days to address why the rule satisfied the standard requiring “clear and convincing evidence” that the more stringent standards were economically justified. DOE issued an additional explanation in April 2022 (which noted that numerous factors such as reduced cumulative carbon dioxide emissions were considered in addition to consumer savings), but the petitioners argued that the 2020 rule should be vacated because the explanation was inadequate and was issued without notice or opportunity for comment. The D.C. Circuit denied the motion to vacate in a one-sentence order. American Public Gas Association v. U.S. Department of Energy, No. 20-1068 (D.C. Cir. June 1, 2022)

Magistrate Recommended that Rhode Island Federal Court Allow Climate Preparedness Suit to Proceed Against Non-Owner/Operator Defendants

A magistrate judge in the federal district court for the District of Rhode Island recommended that the district court deny a motion for judgment on the pleadings dismissing claims against non-owner/operator defendants in Conservation Law Foundation’s lawsuit alleging that Shell Oil Products US and related companies violated environmental laws by failing to prepare a bulk storage and fuel terminal in Providence, Rhode Island, for climate change impacts. The magistrate found granting the motion would requiring contradicting an earlier ruling on a motion to dismiss, which was the law of the case. The magistrate further found that the plaintiff stated plausible claims that the non-owner/operator defendants were directly liable under the Clean Water Act and the Resource Conservation and Recovery Act. Conservation Law Foundation, Inc. v. Shell Oil Products US, No. 17-cv-00396 (D.R.I. June 30, 2022)

D.C. Federal Court Transferred Vineyard Wind Challenges to Massachusetts

The federal district court for the District of Columbia granted federal defendants’ motion to transfer lawsuits challenging the Vineyard Wind offshore wind-turbine project to the District of Massachusetts. The court found that the lawsuit could properly have been brought in the District of Massachusetts because much of the federal agency work at issue occurred in regional offices in Massachusetts and because more than 60 of the vessels and businesses that were members of a plaintiff organization that opposed transfer appeared to be located in Massachusetts. The court further found that two of the public interest factors—the interest in having local controversies decided locally and judicial economy—favored transfer due to parallel litigation already pending in the District of Massachusetts and the local impacts of the project. In addition, the court found that two private interest factors (where the case arose and the defendants’ forum choice) weighed in favor of transfer, while the plaintiffs’ forum choice weighed weakly against transfer and other private interest factors were neutral. Responsible Offshore Development Alliance v. U.S. Department of the Interior, No. 22-cv-237 (D.D.C. June 27, 2022)

D.C. Federal Court Allowed Utah to Intervene to Defend Oil and Gas Leases

The federal district court for the District of Columbia concluded that the State of Utah could intervene in a case challenging federal approval of 32 oil and gas leases in southeastern Utah. The complaint’s allegations included that federal defendants failed to consider cumulative impacts of climate change on cultural resources. The court found that Utah met all four elements for intervention as of right because the State sought to intervene prior to deadline for serving the administrative record, the State had legally protected economic and regulatory interests that were at stake, and the federal defendants’ representation of those interests might be inadequate. Friends of Cedar Mesa v. Department of the Interior, No. 1:21-cv-00971 (D.D.C. June 27, 2022)

Citing Inadequate Analysis of Old Growth Forests, Idaho Federal Court Blocked Timber Harvests in National Forest

The federal district court for the District of Idaho enjoined two “forest health projects” that would involve “extensive timber harvest” in the Nez Pearce-Clearwater National Forests. The court found that the U.S. Forest Service violated the National Forest Management Act by failing to establish that the projects were consistent with Nez Pearce Forest Plan criteria defining old growth stands. The court also found that the environmental review for one of the projects did not adequately consider the two projects’ cumulative environmental impact in relation to old growth. The court rejected other arguments, including that the Forest Service failed to adequately address contrary scientific views on the efficacy of forest thinning to reduce wildfire risk and insect outbreaks. The plaintiff’s allegations included that old growth forests “fight climate change by sequestering carbon[] and are refugia for species facing a changing climate.” Friends of the Clearwater v. Probert, No. 21-cv-189 (D. Idaho June 24, 2022)

Consent Decree Resolved Refrigerant Management Enforcement Action Against Scrap Recycler

The federal district court for the District of Massachusetts entered a consent decree that resolved a federal enforcement action against a company that owns and operates 40 scrap metal recycling facilities in the United States and Puerto Rico. The United States alleged that the company failed to comply with Clean Air Act requirements requiring final processors of small appliances to recover any remaining refrigerants—which deplete the ozone layer and are potent greenhouse gases—from appliances and verify that all remaining refrigerant has been recovered. The United States alleged that the company, by failing to comply with these requirements, failed to protect stratospheric ozone and reduce the risks of climate change. The consent decree requires the company to pay a $1,550,000 penalty and to develop and implement a refrigerant recovery management program at all its facilities. The company also must implement a mitigation project that involves complete destruction of all “R-12” refrigerant recovered at the company’s facilities for five years after entry of the consent decree. The United States said R-12 contains dichlorodifluoromethane, “which has one of the highest global warming potentials of any refrigerant, over 10,000 times that of CO₂.” United States v. Schnitzer Steel Industries, Inc., No. 1:22-cv-10604 (D. Mass. June 23, 2022)

Alaska Federal Court Denied Reconsideration of Remand Without Vacatur in Challenge to Mining Access Road

The federal district court for the District of Alaska declined to reconsider its order remanding without vacatur challenges to a mining access road project in the Brooks Range in Alaska. The court did, however, order federal defendants to provide notice of applications and authorizations for activities on federal lands and notice in advance of any ground-disturbing activities. Northern Alaska Environmental Center v. Haaland, No. 3:20-cv-00187 (D. Alaska June 14, 2022)

Greenpeace Agreed to Dismissal Without Prejudice of Lawsuit Alleging Walmart Misleadingly Marketed Plastic Products as Recyclable

Greenpeace and Walmart stipulated to the dismissal without prejudice of Greenpeace’s lawsuit alleging that Walmart’s marketing of plastic and plastic-packaged products as recyclable violated California’s Environmental Marketing Claims Act and constituted an unlawful and unfair business practices under the State’s Unfair Competition Law. Greenpeace alleged that it had been “working to prevent the proliferation of plastic pollution for nearly four decades,” including by seeking to reduce or eliminate single-use plastic packaging because of its environmental impacts, including impacts on climate. The joint stipulation for dismissal was filed several weeks after the federal district court for the Northern District of California ruled that Greenpeace’s allegations in its third amended complaint were insufficient to establish standing. Greenpeace Inc. v. Walmart Inc., No. 3:21-cv-00754 (N.D. Cal. June 3, 2022)

Louisiana Federal Court Affirmed Denial of Groups’ Request to Intervene in Defense of Oil and Gas Moratorium

The federal district court for the Western District of Louisiana affirmed a magistrate judge’s denial of conservation groups’ motion to intervene in trade groups’ lawsuit challenging the Biden administration’s moratorium on onshore and offshore oil and gas leasing. The magistrate had concluded that the government defendants adequately represented the groups’ interests in maintaining the moratorium. The district court found that the magistrate’s order was neither clearly erroneous nor contrary to law, and that the court would reach the same decision even if it applied a de novo review standard. American Petroleum Institute v. U.S. Department of the Interior, No. 2:21-cv-02506 (W.D. La. June 2, 2022)

Fish and Wildlife Service to Propose Revision to Manatee Critical Habitat by September 2024

Three conservation groups and the U.S. Fish and Wildlife Service (FWS) reached an agreement under which the FWS will submit a proposal for revision of critical habitat for the Florida manatee for publication in the Federal Register by September 12, 2024. The conservation groups filed their lawsuit to compel revision of critical habitat in February 2022, alleging that the manatee faces “dire and imminent threats” that are compounded by climate change. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:22-cv-00246 (D.D.C. June 1, 2022)

After Settlement Reached, Federal Court Granted Conservation Groups’ Requests for Dismissal of Challenges to Oil and Gas Leases in Western States

In three lawsuits brought by conservation groups to challenge oil and gas leases on federal land in Colorado, Montana, New Mexico, Utah, and Wyoming, the federal district court for the District of Columbia granted the conservation groups’ motions for voluntary dismissal with prejudice after the groups and the federal defendants reached agreements to settle the three cases. Under the agreements, the U.S. Bureau of Land Management (BLM) will conduct additional National Environmental Policy Act analysis, consistent with the court’s earlier decisions that found flaws in BLM’s analysis of the leases’ impacts on climate change. In its decision granting voluntary dismissal, the court found that the plaintiffs sought voluntary dismissal in good faith and that industry defendant-intervenors did not establish that voluntary dismissal would result in clear legal prejudice to them (or undue prejudice, if reviewed under the standard for voluntary remand, as the intervenors argued). Having granted voluntary dismissal, the court denied as moot federal defendants’ motions to dismiss for lack of subject matter jurisdiction, federal defendants’ motions to remand, and intervenors’ motions to dismiss on statute of limitations grounds. WildEarth Guardians v. Haaland, No. 1:16-cv-01724 (D.D.C. June 1, 2022); WildEarth Guardians v. Haaland, No. 20-cv-56 (D.D.C. June 1, 2022); WildEarth Guardians v. Haaland, No. 1:21-cv-00175 (D.D.C. June 1, 2022) 

Arizona Federal Court Rejected Claims of Inadequate Climate Change Analysis in Challenge to Biological Opinion for Fort’s Groundwater Pumping 

The federal district court for the District of Arizona ordered the U.S. Fish and Wildlife Service and Fort Huachuca to reinitiate formal consultation under Section 7(a)(2) of the Endangered Species Act regarding the effects of groundwater pumping but rejected conservation groups’ contention that a 2014 biological opinion failed to consider the cumulative effects of the Fort’s groundwater pumping and climate change. The court found that after evaluating “all the evidence … and not[ing] how climate change would affect the listed species and critical habitat,” the FWS “concluded that the impact of climate change was difficult to quantify because of the various complicated factors at play.” The court found that the FWS “did not merely abdicate responsibility by claiming ‘scientific uncertainty,’” stating that while the defendants “were required to consider the effects of climate change,” they did not have “to quantify the combined decreased baseflow from the Fort’s action and decreased precipitation due to climate change.” The court further found that the agencies did not have to look beyond 2030 and that the agencies “formed a rational connection between the data available and the choices made.” Center for Biological Diversity v. Bernhardt, No. 4:20-cv-00106 (D. Ariz. Mar. 31, 2022)

Massachusetts High Court Said Zoning Code Restriction on Solar Energy Violated State Law

The Massachusetts Supreme Judicial Court affirmed a Land Court determination that a local prohibition on solar energy systems, including access roads for such systems, in a residential zone was improper because Massachusetts law “protects solar energy systems from local regulation that is not ‘necessary to protect the public health, safety or welfare.’” The court noted that the Town of Waltham’s zoning code prohibited large-scale solar systems—which are “key to promoting solar energy in the Commonwealth” and to achieving net zero greenhouse gas emissions by 2050—in at most one to two percent of its land area. The Supreme Judicial Court said the record did not suggest that this “stringent limitation” was necessary to protect public health, safety, or welfare. Therefore, the zoning code violated the solar energy provision in Massachusetts law. Tracer Lane II Realty, LLC v. City of Waltham, No. SJC-13195 (Mass. June 2, 2022)

Electricity Supplier Paid $1.65 Million to Resolve Alleged Violations of Massachusetts Renewable Energy Obligations

A retail electricity supplier that sold electricity to Massachusetts customers paid more than $1.65 million to resolve an action brought by the Commonwealth of Massachusetts alleging that the company did not provide the minimum amount of renewable and clean energy required by state law or make alternative compliance payments to Massachusetts programs designed to reduce fossil fuels’ environmental impacts. The Commonwealth alleged that in 2018 and 2019 the company knowingly failed to comply with these requirements to provide renewable and clean energy despite marketing itself as a supplier of “green” and “renewable” energy. Massachusetts alleged that the company then left the Massachusetts electricity market in 2019 without paying amounts owed to the Commonwealth, allowing the company to gain “a financial windfall” and resulting in Massachusetts environmental programs losing “hundreds of thousands of dollars in revenue.” The complaint asserted claims of violation of the Renewable Energy Portfolio Standard, the Alternative Renewable Energy Portfolio Standard, the Massachusetts Clean Air Act, the Massachusetts Consumer Protection Act, and the Massachusetts False Claims Act. The Commonwealth also asserted a claim of unjust enrichment. Approximately $825,000 of the settlement amount constituted restitution that was designated for the Massachusetts Clean Energy Center to fund clean energy programs and for the Massachusetts Department of Environmental Protection to use for initiatives to mitigate climate change. In addition to the settlement payment, the defendant was enjoined from engaging in business in Massachusetts for five years. Commonwealth v. Utility Expense Reduction, LLC, No. 2284CV01479 (Mass. Super. Ct. June 30, 2022)

New York Court Said State Climate Law Gave Agency Authority to Deny Power Plant Permit

In a lawsuit challenging the denial of a Title V air permit for construction and operation of an expanded and repowered natural gas-fired power plant, a New York Supreme Court held that New York’s Climate Leadership and Community Protection Act (CLCPA) granted the New York State Department of Environmental Conservation (NYSDEC) authority to deny the permit application based on a provision requiring state agencies to consider whether decisions “are inconsistent with or will interfere with the attainment of the statewide greenhouse gas limits” established under the CLCPA. If decisions are deemed inconsistent, agencies must provide a detailed statement of justification as to why limits cannot be met and identify alternatives or greenhouse gas mitigation measures. The court found that the provision’s plain language granted NYSDEC authority to deny a permit, rejecting the owner’s interpretation that the provision required review consistency with CLCPA goals but did not authorize denial of a permit. The court said such a review would serve “no practical or meaningful purpose” and would render the legislature’s mandate to reduce emissions “completely toothless for years to come.” The court also rejected the owner’s contentions that NYSDEC “usurped a legislative function in denying the permit” and that NYSDEC violated the owner’s due process rights under the New York Constitution and the State Administrative Procedure Act “by promulgating a de facto ‘rule’ prohibiting all gas-fired power plants in New York.” Although the court concluded that it could consider the foregoing claims that NYSDEC exceeded its authority and acted unconstitutionally, the court did not decide “significant, fact driven substantive issues” arising from the determination that the project would be inconsistent with CLCPA goals and was not otherwise justified. The court said the owner had failed to exhaust its administrative remedies concerning these issues, which would be addressed in a pending administrative appeal. The owner has appealed the decision. Danskammer Energy, LLC v. New York State Department of Environmental Conservation, No. EF008396-2021 (N.Y. Sup. Ct. June 8, 2022)

Minnesota Court Rejected Climate Change Arguments in Decision Affirming Environmental Review for Residential Development

The Minnesota Court of Appeals affirmed Rochester Township’s negative declaration on the need for an environmental impact statement under the Minnesota Environmental Policy Act for a 10-lot residential development. Among the arguments rejected by the court was a contention that the Township failed to address climate change and greenhouse gas emissions. The court said the Township’s determination “could have more explicitly and thoroughly set forth its findings as to greenhouse-gas emissions” but concluded that the determination was “thoroughly supported.” In support of this conclusion, the court noted that the environmental assessment worksheet (EAW) stated that emissions from residential heating units would be comparable to “suburban homes of similar size.” The EAW also cited other greenhouse gas or climate change factors such as reduced forest clearing, high-efficiency furnaces, well-insulated buildings, and proximity to the City of Rochester. In re Determination of Need for Environmental Impact Statement for Pavilion Estates Subdivision, No. A21-1276 (Minn. Ct. App. June 6, 2022)

Rhode Island Court Declined to Disqualify Board Member for Ex Parte Climate Research

A Rhode Island Superior Court declined to disqualify the Cranston City Plan Commission Chair’s vote to approve an application for a solar farm based on statements he made indicating that climate change was the “basic premise underlying” his vote to approve an application for a solar farm. The court found that evidence did not suggest that the chair disregarded other evidence at informational meetings and therefore declined to find bias that warranted disqualification. The court said, however, that the chair had “violated his role to carry out a quasi-judicial function” by conducting outside research on climate change and reading an article about the project. The court cautioned the chair to avoid ex parte contacts in the future. Zevon v. Rossi, No. PC-2019-6129 (R.I. Super. Ct. May 27, 2022)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Fossil Fuel Companies Asked Supreme Court to Review Remand Order in Colorado Localities’ Climate Case

On June 8, 2022, fossil fuel companies filed a petition for writ of certiorari seeking the U.S. Supreme Court’s review of the Tenth Circuit’s decision affirming the remand to state court of climate change cases brought against the companies by Colorado local governments. The petition presented two questions: (1) Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate; and (2) Whether a federal district court has jurisdiction under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under state law. The response to the petition is due on August 10. Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S. June 8, 2022)

Parties to Proceed with Briefing of Remand Motions in Annapolis and Anne Arundel County Climate Cases

The federal district court for the District of Maryland said it would reserve ruling on fossil fuel companies’ motions to stay proceedings in climate change cases brought by the City of Annapolis and Anne Arundel County until briefing on the plaintiffs’ motions to remand was complete. The companies had asked the court to stay proceedings pending their petition for writ of certiorari in the Baltimore case and any subsequent merits review by the Supreme Court. The district court in the Anne Arundel County and Annapolis cases reopened the cases on April 27, 2022 after the Fourth Circuit affirmed the remand order in Baltimore’s case. In its letter order reserving its ruling on the motions to stay, the district court acknowledged the “potential expenditure of unnecessary time and resources associated with” briefing the remand motions, given uncertainty about the certiorari petitions, but expressed a desire “to be well positioned to advance the cases expeditiously if certiorari is denied.” City of Annapolis v. BP p.l.c., 1:21-cv-00772 (D. Md.); Anne Arundel County v. BP p.l.c., No. 1:21-cv-01323 (D. Md.)

Oral Argument Held in Appeals of Delaware and Hoboken Remand Orders

On June 21, 2022, the Third Circuit Court of Appeals heard oral arguments in the appeals of remand orders in climate change lawsuits brought against fossil fuel industry defendants by the State of Delaware and City of Hoboken. City of Hoboken v. Exxon Mobil Corp., No. 21-2728 (3d Cir. June 21, 2022); Delaware v. BP America Inc., No. 22-1096 (3d Cir. June 21, 2022)

Courts Holding Challenges to Trump-Era Vehicle Standards and Policies in Abeyance While Challenges to Biden Reversals Proceed

In June, the D.C. Circuit Court of Appeals issued orders that will continue to hold in abeyance cases filed in 2019 and 2020 that challenge the Trump administration’s greenhouse gas emission and fuel economy standards for model year 2021-2026 light-duty vehicles, the 2019 National Highway Traffic Safety Administration rule preempting state limits on tailpipe greenhouse gas emissions and zero-emission vehicles mandates, and EPA’s withdrawal of California’s waiver for such regulations. The D.C. Circuit will hold these cases in abeyance while it considers lawsuits challenging the Biden administration’s revised greenhouse gas emissions standards for 2023 and later model year light-duty vehicles, fuel economy standards for model years 2024-2026, and reinstatement of California’s waiver. The challenges to the new fuel economy standards were filed on May 11, 2022 by Natural Resources Defense Council and on June 30 by 11 states led by Texas and by American Fuels & Petrochemical Manufacturers. The D.C. Circuit denied a request by states that had intervened to defend revocation of California’s waiver to allow the case challenging the waiver revocation to move forward. Those states argued that Clean Air Act’s provision for the California waiver violated the equal-sovereignty doctrine and that the 2019 suit presented “a golden opportunity to resolve the equal-sovereignty question that has dogged California’s special status for years.” In a separate case filed in 2019 in federal district court to challenge the NHTSA preemption rule, another set of plaintiffs—three California air quality management districts—voluntarily dismissed their action on June 23, 2022. Only the action brought by California and other states remains pending. Proceedings are currently stayed while the remaining plaintiffs and the federal defendants continue discussions regarding the status of the case. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir. June 8, 2022); Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir. June 29, 2022); California v. Chao, No. 1:19-cv-02826 (D.D.C. June 23, 2022); Natural Resources Defense Council v. National Highway Traffic Safety Administration, Nos. 22-1080, 22-1144, 22-1145 (D.C. Cir., filed May 11, 2022 and June 30, 2022)

Petitioners Challenged EPA Denial of Reconsideration of 2009 Greenhouse Gas Endangerment Finding

Two petitions were filed in the D.C. Circuit Court of Appeals seeking review of EPA’s denial of petitions for reconsideration of EPA’s 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act (2009 Endangerment Finding). EPA denied four petitions regarding the 2009 Endangerment Finding in April 2022, after initially denying them on January 19, 2021 “with a very brief discussion” and subsequently withdrawing that denial. In the April 2022 denial, EPA explained its conclusion that the petitioners “have provided inadequate, erroneous, and deficient arguments and evidence for their assertions that the underlying science supporting the 2009 Endangerment Finding is flawed, misinterpreted, or inappropriately applied by EPA.” EPA also disagreed that reconsideration was warranted due to procedural deficiencies. The D.C. Circuit proceedings were brought by the submitters of two of the reconsideration petitions. Concerned Household Electricity Consumers Council v. EPA, Nos. 22-1139, 22-1140 (D.C. Cir., filed June 28, 2022)

Midstream Companies Challenged PHMSA Rule for Gas Gathering Pipelines; Proceedings Stayed to Allow Settlement Negotiation

On May 2, 2022, GPA Midstream Association—a trade group of 60 members that gather and process natural gas into merchantable pipeline gas—filed a petition for review in the D.C. Circuit Court of Appeals challenging the Pipeline and Hazardous Materials Safety Administration (PHMSA) final rule on “Pipeline Safety: Safety of Gas Gathering Pipelines: Extension of Reporting Requirements, Regulation of Large, High-Pressure Lines, and Other Related Amendments.” On June 1, Environmental Defense Fund (EDF) filed a motion to intervene in support of the respondents, citing its “strong interest” in the case, including based on its interest in protecting its members from worsened effects of climate change that they would suffer if the rule were vacated because gathering lines are a significant source of methane emissions. On June 27, the D.C. Circuit granted a joint motion by petitioner and respondents to hold the case in abeyance while they negotiate a potential resolution that might involve “a limited period of non-enforcement of certain requirements in the final rule.” EDF did not take a position on the motion to hold the proceedings in abeyance. GPA Midstream Association v. U.S. Department of Transportation, No. 22-1070 (D.C. Cir., filed May 2, 2022)

Conservation Groups Challenged Decision Not to Designate Critical Habitat for Marsh Bird Threatened by Rising Sea Levels

Center for Biological Diversity and Healthy Gulf filed a lawsuit in the federal district court for the District of Columbia seeking to compel designation of critical habitat for the eastern black rail, “a small, elusive, and vulnerable marsh bird” whose presence has declined by 90% over the past 25 years due to habitat loss. The complaint alleged that the U.S. Fish and Wildlife Service had identified several “current primary stressors,” including wetland conversion, water withdrawals, land practices, and rising sea levels, that influenced the eastern black rail’s viability, and had noted “that these stressors, coupled with predicted sea level rise and increasing storm frequency and intensity, will have both a direct and indirect effect on the eastern black rail.” The plaintiffs alleged that the FWS’s determination that designation of critical habitat was “not prudent” was based on “the unsupported allegation that doing so would cause ‘overzealous birders’ to harm” the bird. The complaint alleged that this was not a reasoned explanation and therefore violated the Endangered Species Act and the Administrative Procedure Act. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:22-cv-01877 (D.D.C., filed June 30, 2022)

Conservation Groups Alleged Failures to Meaningfully Consider Climate Impacts of Oil and Gas Lease Sales

Two lawsuits filed in federal district court in the District of Columbia challenged oil and gas lease sales in western states. One case brought by 10 conservation groups challenged approval of 173 oil and gas lease sales across eight states. The other case, which was filed by Wilderness Society and Friends of the Earth (FOE), challenged one of those sales, a June 2022 decision to sell oil and gas leases covering almost 120,000 acres in Wyoming. Wilderness Society and FOE’s claims included that the U.S. Bureau of Land Management violated NEPA by “fail[ing] to make a reasoned decision about how to address the lease sale’s contribution to climate change.” They alleged that although BLM acknowledged that the development of the oil and gas leases would result in “huge volumes of greenhouse gases” and “billions of dollars in social and environmental costs,” the agency did not explain why it chose to incur such costs, consider the sale’s consistency with U.S. commitments to mitigate climate change, or consider the alternative of a smaller lease sale. The complaint’s allegations also related to potential groundwater impacts and asserted that protection of groundwater sources was particularly important due to pressure climate change would put on water sources. In the case brought by 10 plaintiffs, the complaint asserted climate change-based violations of NEPA and the Federal Land Policy and Management Act (FLPMA). The complaint asserted that an environmental impact statement should have been prepared. It alleged a failure to provide “meaningful analysis” of greenhouse gas emissions in the seven environmental assessments prepared for the lease sales and asserted that the conclusions in the findings of no significant impact were “unsupported and inconsistent with the agency’s acknowledgment of the climate crisis.” The complaint also asserted that BLM failed to consider cumulative impacts of the lease sales by “fail[ing] to evaluate the severity of their collective impacts in the context of the climate crisis and GHG emissions from the Leasing Program.” The complaint also asserted that BLM violated FLPMA by “fail[ing] to define or to take any action necessary to prevent the further unnecessary or undue degradation of public lands from acknowledged climate impacts and despite its acknowledged contribution to those impacts.” Dakota Resource Council v. U.S. Department of the Interior, No. 1:22-cv-1853 (D.D.C., filed June 28, 2022); Wilderness Society v. Haaland, No. 1:22-cv-01871 (D.D.C., filed June 29, 2022)

Plaintiffs Challenged Texas Department of Transportation Review of Highway Project

Three plaintiffs challenged the NEPA review for a highway widening project in Austin, Texas. In their complaint filed in the federal district court for the Western District of Texas, they alleged, among other things, that the Texas Department of Transportation failed to analyze impacts on climate change, including by failing to provide information about emissions that might result from increased traffic volumes. Rethink35 v. Texas Department of Transportation, No. 1:22-cv-00620 (W.D. Tex., filed June 26, 2022)

Lawsuit Alleged Failure to Consider New Information on Climate Change Threats in Denial of Listing Petition for Arizona Snake

Center for Biological Diversity filed a lawsuit in federal district court in Arizona alleging that the U.S. Fish and Wildlife Service violated the Endangered Species Act and the Administrative Procedure Act by denying a 2020 listing petition for the Tucson shovel-nosed snake, which lives solely in two or three counties in Arizona. The complaint alleged that the FWS’s negative 90-day on the finding “failed to acknowledge new information regarding the continued and foreseeable threats to the species from urbanization and roads, agriculture, and climate change.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 22-CV-00286 (D. Ariz., filed June 23, 2022)

Conservation Groups Challenged Approval of Applications for Permit to Drill in Permian and Powder River Basins

Center for Biological Diversity and WildEarth Guardians filed a lawsuit in the federal district court for the District of Columbia challenging approval of at least 3,535 applications for permit to drill (APDs) for oil and gas in the Permian Basin in New Mexico and in the Powder River Basin in Wyoming. The plaintiffs asserted climate change-related violations of NEPA, the Endangered Species Act, and the Federal Land Policy and Management Act. Under NEPA, the plaintiffs alleged a failure to take a hard look at cumulative greenhouse gas emissions and the resulting climate impacts and to use available tools for assessing the impacts of greenhouse gas emissions from production and combustion of mineral resources authorized by the APDs. They also alleged a failure to consider environmental justice implications of increased greenhouse gas emissions and cumulative climate impacts. Under the Endangered Species Act, the plaintiffs asserted a failure to consult and reinitiate consultation on climate-threatened species. Under FLPMA, they asserted a failure to “take action necessary to prevent unnecessary or undue degradation in the context of climate impacts.” Center for Biological Diversity v. U.S. Department of the Interior, No. 1:22-cv-01716 (D.D.C., filed June 15, 2022)

Lawsuit Challenged Oregon Regulations Intended to Protect Workers from Excessive Heat and Wildfire Smoke

Three business and trade groups filed a federal lawsuit in the District of Oregon challenging Oregon regulations related to employee exposure to wildfire smoke and temperatures exceeding 80 degrees Fahrenheit. The regulations were adopted in response to an executive order issued by Governor Kate Brown in 2020 that directed state agencies to take actions to reduce greenhouse gas emissions and mitigate climate change impacts. The order included a directive for development of a proposal to protect employees from workplace exposures to excessive heat and wildfire smoke. The plaintiffs asserted that the regulations were unconstitutionally vague and that the defendants exceeded their statutory authority. Oregon Manufacturers & Commerce v. Oregon Occupational Safety & Health Division, No. 1:22-cv-00875 (D. Or., filed June 15, 2022)

FOIA Lawsuit Sought Records on Department of Energy Travel to COP26

A Freedom of Information Act (FOIA) lawsuit filed in the federal district court for the District of Columbia sought to compel the U.S. Department of Energy to release records regarding attendance by DOE employees and contractors at the 2021 United Nations Climate Change Conference in Glasgow, United Kingdom (COP26). The plaintiff alleged that DOE wrongfully withheld non-exempt responsive records, and that release of the documents was “in the public interest because they will help the public understand how much money and other resources were spent to participate in the COP26 Conference and whether Department officials acted consistent with applicable laws and regulations in participating in the COP26 Conference.” Protect the Public’s Trust v. U.S. Department of Energy, No. 1:22-cv-01750 (D.D.C., filed June 17, 2022)

Lawsuit Said Forest Plans Amendment Would Remove Protections for Large Trees that Provide Carbon Storage

Six groups challenged the U.S. Forest Service approval of the Forest Plans Amendment to Forest Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Washington, which the complaint alleged would remove “long-standing protections for large and old trees.” The plaintiffs alleged that the agency did not prepare an environmental impact statement and classified the amendment as “insignificant” under the National Forest Management Act (NFMA) despite, among other factors indicating significance, “the value of large trees as major and increasing stores of carbon that help mitigate climate change.” The plaintiffs asserted violations of NEPA, the NFMA, the Endangered Species Act, and the Administrative Procedure Act. Greater Hells Canyon Council v. Wilkes, No. 2:22-cv-00859 (D. Or., filed June 14, 2022)

Sierra Club Alleged that Approval of Coal Mine Expansion Violated NEPA

Sierra Club filed a federal lawsuit in the District of Utah alleging that the U.S. Bureau of Land Management’s approval of the expansion of a coal mine Utah violated NEPA and the Administrative Procedure Act. The complaint alleged that the defendants failed to consider “reasonable, middle-ground” alternatives, that the environmental assessment presented “an economically skewed analysis” that ignored socioeconomic and environmental costs of mining additional coal, and that the environmental assessment did not analyze short- and long-term impacts of methane emissions. Sierra Club v. Hoffman, No. 4:22-cv-00037 (D. Utah, filed June 10, 2022)

Environmental Groups Alleged Failure to Consider Best Available Science on Climate Change in Challenge to Denial of Listing Petition for Kirtland’s Snake

Center for Biological Diversity and Hoosier Environmental Council filed a lawsuit challenging the decision of the U.S. Fish and Wildlife Service to deny their 2010 petition to list the Kirtland’s snake under the Endangered Species Act. They alleged that the snake’s population had declined due to urban and residential development, as well as agricultural development and associated harms, and that climate change also posed “a substantial threat” to the snake “as large portions of the species’ current range are predicted to become increasingly unsuited to meet the species’ ecological needs.” Their complaint alleged that best available science indicated that climate change would make most of the snake’s current range unsuitable in the foreseeable future, and that the FWS arbitrarily assumed that the snake would adapt to and survive climate change in its current range. In addition, the complaint alleged that the FWS did not adequately evaluate whether threats from climate change and other factors constituted “concentrated” threats. Center for Biological Diversity v. Williams, No. 1:22-cv-02989 (N.D. Ill., filed June 8, 2022)

CEQA Lawsuits Challenged Biofuel Refineries in California

Communities for a Better Environment and Center for Biological Diversity filed two lawsuits in California Superior Court alleging that Contra Costa County failed to comply with the California Environmental Quality Act (CEQA) in connection with the repurposing of refineries in the City of Rodeo and the City of Martinez as biofuel refineries. The organizations contended that the County’s environmental impact report improperly used prior oil and gas refinery operations as the baseline for its CEQA reviews and failed to disclose the types of feedstocks would be used. The organizations alleged that without information about types of feedstocks, where the feedstocks would come from, and how much would be processed, the analysis of environmental harms such as climate change was “speculative guesswork.” The petition also alleged that the CEQA review failed to analyze the combined impacts of the two projects, which were located 10 miles from each other. In addition, the petition alleged that the review obscured impacts—including climate change-related impacts—from biofuel crop production. Communities for a Better Environment v. County of Contra Costa, No. __ (Cal. Super. Ct., filed June 7, 2022); Communities for a Better Environment v. County of Contra Costa, No. __ (Cal. Super. Ct., filed June 7, 2022)

Insurers Asked Massachusetts Court to Find that They Had No Obligation to Defend Climate Adaptation Suit

Two insurance companies filed a lawsuit in Massachusetts Superior Court seeking declarations that primary and excess policies they issued did not obligate them to defend or indemnify Gulf Oil Limited Partnership in a lawsuit brought by Conservation Law Foundation (CLF) alleging that Gulf Oil had not adequately prepared its bulk petroleum terminal in New Haven, Connecticut for climate change impacts. The insurers alleged that the CLF lawsuit did not allege “bodily injury” or existing “property damage” caused by an “occurrence” that first manifested during the policy period of the primary policies. They alleged that the CLF suit instead alleged “a risk of potential property damage from ongoing and future weather events related to global warming and climate-change.” The insurers asserted that even if the CLF lawsuit could be read to allege property damage, coverage would be precluded on other bases, including the policies’ pollution exclusion and other exclusions. In addition, the insurers alleged that Gulf Oil breached conditions set forth in the policies and was therefore not entitled to coverage. Everest Premier Insurance Co. v. Gulf Oil LP, No. 2284CV01291 (Mass. Super. Ct. June 9, 2022)

 

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART 

FEATURED CASES

Brazilian Supreme Court Ruled that Paris Agreement Is a Human Rights Treaty

On June 5, 2020, four political parties filed a Direct Action of Unconstitutionality for Omission, before the Federal Supreme Court in Brazil to challenge the Federal Union’s alleged failure to adopt administrative measures concerning the Climate Fund. The National Climate Change Fund (Fundo Clima), created by Law 12.114/2009, is an instrument of the National Policy on Climate Change (PNMC, Law 12.187/2009) and aims to ensure that resources support projects or studies and finances activities aimed at mitigating and adapting to climate change and its effects. On June 30, 2022, the Supreme Court rejected the government’s arguments and ruled that the executive branch cannot ignore the mandate of the legislative branch. Instead, the executive branch has a constitutional duty to execute and allocate the funds of the Climate Fund to mitigate climate change, based on both the separation of powers and the constitutional right to a healthy environment. The court further found that the judiciary, in turn, must act to avoid the regression of environmental protection. The Supreme Court clarified that environmental law treaties constitute a particular type of human rights treaty, which enjoy “supranational” status. This “supralegality” of human rights treaties means that they are above “regular” laws in the legal hierarchy. Accordingly, any Brazilian law or decree that contradicts the Paris Agreement, including the nationally determined contribution, may be invalidated. Any action or omission contrary to this protection is a direct violation of the Constitution and human rights. The constitutional duty to allocate the funds effectively means that there is a duty to mitigate climate change considering the international commitments under the climate change framework. PSB et al. v. Brazil (on Climate Fund) (Brazil, Supremo Tribunal Federal)

Prague Municipal Court Found a Government Duty to Mitigate Climate Change

In 2021, a group of Czech citizens filed suit against the government of the Czech Republic for its inaction on climate change and the human rights harms this inaction is causing. Plaintiffs allege that the government, by failing to adequately address climate change, is violating Czech citizens’ rights to life, health, and environment, and other rights guaranteed by the Czech constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights. On June 15, 2022, the Prague Municipal Court upheld the lawsuit and ordered the state to urgently take the necessary measures to slow climate change. The Court ruled that the state’s failure to take sufficient GHG mitigation measures is unlawful and that the state should abstain from continuing to infringe the plaintiffs’ rights by such failure. The court derived the obligation to mitigate climate change from the Paris Agreement and the EU Climate Law (which sets the target to reduce greenhouse gas emissions by 55% by 2030 compared to 1990), as the Czech Republic does not have a climate act yet. State authorities are obliged to have a plan of precise and complete measures to achieve this goal, which is not yet set in place. While the Court concluded that the goal of the Paris Agreement (of keeping the increase in global temperatures below 2°C) is not legally binding, the national contribution of the Czech Republic cannot be avoided. Avoiding these climate goals would threaten the plaintiff’s constitutionally guaranteed rights. The defendants (Ministry of the Environment, Ministry of Industry and Trade, Ministry of Agriculture, and Ministry of Transport) will have to adopt additional measures to reach the 55% reduction in GHG by 2030 as the measures set out in the Climate Protection Policy of the Czech Republic are not sufficient to achieve the emission reduction target set by the EU. In particular, the state will have to take necessary steps to reduce GHG in the fields of energy, transport, and forestry within six months. However, the adaptation claims made by the plaintiffs were dismissed as the state prepared a new adaptation plan and is actively implementing some measures. The Ministry of the Environment appealed on points of law to the Supreme Administrative Court. Klimatická žaloba ČR v. Czech Republic (Czech Republic, Prague Municipal Court)

DECISIONS & SETTLEMENTS 

Nova Scotia Court Denied Judicial Review of a Highway Realignment Approval Due to Lack of Direct GHG Emissions

Ecology Action Centre and New Brunswick Anti-Shale Gas Alliance sought judicial review of the Nova Scotia Minister of Environment and Climate Change’s decision to approve a highway realignment project related to the Goldboro LNG Project. The applicants argued that the Minister (i) failed to provide the applicants with the written statement of the decision, including its facts and reasons, contrary to the requirements in the Environment Act, (ii) erred in making the decision, and (iii) failed to properly consider the comments from the applicants and other participants during the public consultation process. These comments concerned GHG emissions and the risks of carrying out the project in an area already significantly impacted by historical gold mining activity and contaminated by toxic gold mine tailing deposits. The Court decided that (i) the reasonableness of the Minister’s decision to approve the highway realignment project was justiciable but not a serious issue, given that the application related solely to the decision to allow the highway realignment project; (ii) the applicants’ primary concern related to GHG emissions by the Goldboro LNG Project, not the highway realignment project; (iii) applicants had a genuine interest in the matter; (iv) an application for judicial review was the only mechanism available to challenge the Minister’s decision. In weighing all of the factors cumulatively, the Court found that they did not support granting public interest standing to the applicants. The Court accepted that climate change and the environmental impacts from natural gas production are important issues, but concluded that the decision in question was about the approval of a highway realignment with secondary GHG emissions concerns. The applicants’ application for judicial review of the decision to approve the highway realignment project was dismissed. However, the Court allowed the applicants’ application for judicial review regarding whether the Minister failed to provide the applicants with the written statement of the decision contrary to the requirements set out in the Environment Act to proceed to a hearing on the merits. Ecology Action Centre v. Nova Scotia (Environment) (Canada, Nova Scotia)

British Columbia Court of Appeals Found that Permit to Operate a Rock Quarry Did Not Need to Consider Climate Change

In an appeal from the dismissal of an application for judicial review of a British Columbia Mines Inspector’s decision to issue a permit to operate a rock quarry, the applicants questioned whether the decision was unreasonable because the Mines Inspector failed to consider the climate change impacts of the proposed quarry under the Mines Act. The appellant contends that climate change is such an important issue that the Mines Inspector’s failure to consider it constituted a fettering of his discretion, resulting in an unreasonable decision. The reviewing judge held that the Mines Inspector had the discretion to consider the impacts of climate change but his failure to do so did not render his decision unreasonable. The appeal was dismissed. While the Mines Inspector’s statement of relevance was overly broad, his interpretation of the factors he is required to consider under the statutory scheme was reasonable. The broad discretion granted to the decision maker under the Mines Act imposes no mandatory requirements, and the Mines Inspector provided extensive reasons for why he assessed the factors he considered relevant to the application before him. Highlands District Community Association v. British Columbia (Attorney General) (Canada, British Columbia Court of Appeals)

Supreme Court of New South Wales Mandated Disclosure of Documents Related to a Demerger Which Would Split Dirty Assets into a Separate Company

The board of AGL Energy Limited, Australia’s biggest GHG emitter, announced in 2021 that they intended to pursue a demerger creating two separate entities, AGL Australia Limited (a retailer) and Accel Energy Limited (a generator). The proposed demerger was being pursued by way of a scheme of arrangement under the Corporations Act 2001 (Cth), which requires Court approval at two stages, along with a shareholder vote. Initially, the Court must approve the materials that AGL puts to shareholders for the vote and to convene the scheme meeting where the vote takes place. Shareholders are typically unable to access the materials prior to the “first hearing” of the application. In the present case, the plaintiff was a high value shareholder of AGL who, without having access to those materials, was concerned that those materials may not adequately address climate risks associated with the demerger. On May 5, 2022, at a hearing of the Supreme Court of New South Wales, the plaintiff sought leave to be heard in the Court’s hearing of the application, including on the basis that the proposed demerger was not in the best interests of shareholders. Leave was granted and AGL tendered the scheme materials and was required to provide the materials to the plaintiff to review. The Court made orders to publish the scheme booklet unamended; however, it ordered that the videos that AGL proposed to publish on the demerger were to be amended to disclose the risks and disadvantages of the demerger. On May 30, 2022, AGL decided to withdraw the demerger proposal altogether. In the matter of AGL Limited (Australia, New South Wales Supreme Court)

Spanish Supreme Court Rejected Greenpeace’s Appeal in Case Questioning Government’s Climate Action

On September 15, 2020, Greenpeace Spain, Oxfam Intermón, and Ecologistas en Acción filed a motion notifying the Supreme Court of their intention to sue the Spanish Government, alleging failure to take adequate action on climate change. The plaintiffs assert that Spain is in violation of Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action. According to plaintiffs, by December 2019, Spain should have approved a National Energy and Climate Plan with climate goals for 2030 and a Long Term Strategy with goals for 2050; and the draft plan was not consistent with the Paris Agreement and Intergovernmental Panel on Climate Change recommendations to keep global warming to 1.5 degrees Celsius. The complaint seeks an order compelling greater climate action. On March 7, 2022, the Supreme Court issued a ruling (not publicly available) which stated that the case was ready for deliberation. Greenpeace appealed the ruling based on formal considerations. The appeal particularly focused on a request that Greenpeace vs. Spain II (a separate challenge to the National Energy and Climate Plan) be jointly considered and judged, given the close connection between the matters in the two cases. On March 31, 2022, the Supreme Court rejected Greenpeace’s arguments and confirmed the earlier ruling. The case is pending final decision. Greenpeace v. Spain I (Spain, Supreme Court)

Canadian Court Rejected Claim that Government Actions to Phase Out Coal-Fired Power Were De Facto Expropriation of Royalty Interest in Coal

Altius Royalty Corporation, Genesee Royalty Limited Partnership, and Genesee Royalty GP Inc. alleged de facto expropriation of their royalty interest in coal from the Genesee Coal Mine caused by the Canadian federal government’s regulations prohibiting coal-fired electricity generation by 2030 and the agreement between the owners of Genesee Power Plant and the government of Alberta, also a defendant, for the provision of transition payments to the owners of such plant in exchange for ceasing coal-fired emissions from the plant by December 31, 2030. The plaintiffs have a royalty interest in coal produced from the Genesee Coal Mine in Alberta, which is dedicated to fueling the Genesee Power Plant. The plant generates coal-fired electricity for the City of Edmonton and elsewhere. The plaintiffs paid, collectively, $460 million for the royalty interest in the coal at the mine. The action was initially dismissed. In reviewing the decision to grant summary dismissal of the plaintiffs’ claim for de facto expropriation, the Alberta Court of Appeals determined whether the defendants had met the requirements for a finding of a de facto taking requiring compensation at common law: (i) an acquisition of a beneficial interest in the property or flowing from it and (ii) removal of all reasonable uses of the property. The Court found that the requirements had not been met, as there was no evidence that the defendants would, in some way, recover a freehold interest in the coal and that the defendants have an interest in keeping the coal in the ground (in its natural state). The Court found that the defendants’ interest was reducing Canada’s production of greenhouse gas emissions, as manifested in the Paris Agreement and the 2012 Regulations, as amended by the 2018 Regulations. The Court agreed with the finding that the defendants had proven on a balance of probabilities that there was no merit to the plaintiffs’ claim. Altius Royalty Corporation et al. v. Her Majesty the Queen in Right of Alberta et al. (Canada, Court of Queen’s Court of Alberta) 

NEW CASES, MOTIONS, AND OTHER FILINGS

Brazilian NGO Questioned Carbon-Intensive Investments of National Development Bank

On June 21, 2022, Conectas Direitos Humanos filed a claim against BNDES (Brazil’s Development Bank) and BNDESPar, the bank’s investment arm responsible for managing its shareholdings in various Brazilian companies held by the bank. According to Conectas, this is the world’s first civil climate action against a national development bank. Although BNDESPar, which is publicly owned, follows an Environmental and Social Policy for Operating in Capital Markets, which bans support for companies with a track record of environmental crimes and modern-day slavery, this policy does not include climate criteria. The company also does not report the carbon emissions associated with its investment portfolio and still maintains equity positions in sectors that are among the most carbon-intensive in the Brazilian economy. Conectas contends that the lack of rules or protocols for assessing the impacts of its investments on the climate crisis is in violation of Brazil’s commitments under the Paris Agreement and the country’s own PNMC (National Policy on Climate Change), among other provisions. Based on two technical opinions, Conectas asks the court to give BNDESPar and its controller, BNDES, 90 days to adopt transparency measures and present a plan with rules and mechanisms to commit their investments and divestments to the reduction of greenhouse gas emissions by the companies they finance. In practice, these actions will affect the just transition and guarantee the country’s readjustment in the world economy towards sustainable development, which would be the institutional mission of BNDES itself. The plan should align with commitments to reducing GHG emissions by 2030 in the sectors currently financed by the company, in accordance with the international commitments assumed by Brazil. In addition to presenting concrete goals, the plan should be prepared together with civil society, public bodies, and academics, and it should provide for environmental and social compensation whenever the targets are not achieved. The case also calls for the creation by BNDESPar of a Climate Situation Room to assess compliance with the targets established in the plan to reduce greenhouse gas emissions, while publishing the progress or setbacks in the sectors that have investments from BNDESPar. One of the requests made in the case is for the Room to be accessed by representatives of civil society, traditional peoples and communities, the Public Prosecutor’s Office, the Public Defender’s Office, academics, and members of the Judiciary. On June 22, 2022, a subpoena was issued to the parties required to appear on the requested urgent injunctions. Conectas Direitos Humanos v. BNDES and BNDESPAR  (Brazil, 9th Federal Civil Court of the Federal District)

Dutch NGO Sued KLM for Misleading Advertising

On May 24, 2022, campaigners for Fossielvrij NL issued a letter of summons to Dutch aviation company KLM at a shareholder meeting of AirFrance-KLM. The letter states that KLM will be sued in violation of European consumer law if it does not cease misleading advertisement claims under its “Fly Responsibly” campaign to the effect that CO2 compensation measures and alternative fuels can make flying sustainable. The Fly Responsibly ads present the airline as “creating a more sustainable future” and on track to reduce its emissions to net zero by 2050. Environmental organizations FossielVrij NL, Reclame Fossielvrij, and ClientEarth claim that there is no such thing as “flying responsibly” at present, and that KLM seeks company growth and increased flight sales, while it should be reducing emissions by reducing the number of flights “to keep a just, liveable world within reach.” Specifically, the organizations claim that customers are offered to carbon offsets—labeled “CO2ZERO”—by funding reforestation projects or KLM’s purchase of biofuels, but that such labels are misleading and that such products do not make a meaningful contribution to reducing KLM’s footprint. Moreover, KLM’s marketing undermines the urgent action needed to minimize climate catastrophe. The case builds on an April 8, 2022 decision of the national Advertisement Code Commission, the Dutch media watchdog dealing with complaints about misleading advertisement under the Advertisement Code. The commission ruled that elements of the Fly Responsibly campaign violated the code’s provisions on misleading advertising, especially those elements referring to “climate neutrality” or “CO2ZERO.” This includes slogans like “Be a hero, fly CO2ZERO” or “CO2 neutral: KLM compensates for the CO2 emissions of your KLM Holidays flight.” The Commission noted, inter alia, that while the reforestation program in which KLM invests meets certain recognized theoretical standards (e.g., Gold Standard certification), there exist doubts in practice and among experts that emission reduction certificates purchased by KLM result in the full and permanent compensation “down to zero” of personal flight footprints in practice, as suggested by the campaign. The absolute environmental claims of “CO2 neutrality” and “CO2ZERO” must be accompanied by sound, independent, verifiable, and generally recognized evidence that in practice there is also guaranteed full compensation.

On July 6, 2022, FossielVrij NL filed a claim in the Amsterdam District Court against KLM. FossielVrij NL v. KLM (Netherlands, Amsterdam District Court) 

Canadian NGOs Question Approval of Offshore Exploitation Project on Climate Grounds

In May 2022, Sierra Club Canada Foundation and Équiterre filed an application for judicial review of the federal Minister of Environment and Climate Change’s decision approving, with conditions, the environmental assessment for the Bay du Nord Development Project, and authorizing the Project to proceed, under the Canadian Environmental Assessment Act, 2012. Equinor is proposing to develop the Project in the Flemish Pass offshore Newfoundland, with expected reserves of 300 million barrels of oil. The Minister determined that the Project was not likely to cause significant adverse environmental effects. The applicants submit that the environmental assessment report did not satisfy the requirements under the Act or the guidelines for the assessment of the Project. Among other things, the applicants allege that the report did not acknowledge all the GHG emissions associated with the Project, including downstream GHG emissions which could account for 90% of the Project’s total emissions, and the effects related to additional production for the Project. As a result, the Minister lacked jurisdiction to make the decision as he relied on a report that did not meet the requirements under the Act. The applicants are requesting that the Federal Court of Canada (i) find that the Minister’s decision is beyond the jurisdiction of the Minister and therefore invalid, (ii) issue an order that the Minister’s decision is unreasonable and therefore invalid, and (iii) issue an order quashing his decision. Sierra Club Canada Foundation et al. v. Minister of Environment and Climate Change Canada et al. (Canada, Federal Court)

Canadian NGOs Challenged British Columbia’s Environment and Climate Change Strategy

Sierra Club of BC challenged the Minister of Environment and Climate Change Strategy’s (government of British Columbia) 2021 Climate Change Accountability Report (the “2021 Report”) on the grounds that it did not meet the requirements under the Climate Change Accountability Act. The Act requires the government of British Columbia to publish annual reports on, among other things, its plan to continue progress toward reaching its climate targets set out in the Act. Sierra Club of BC argues that the Minister’s 2021 Report does not meet the requirements of the Climate Change Accountability Act as it does not include a plan to continue progress toward the 2025, 2040, and 2050 GHG emissions reduction targets referred to in the Act, or a plan to continue progress toward the GHG emissions reduction target set for the oil and gas sector. Sierra Club of BC has asked the British Columbia Supreme Court to quash and set aside the 2021 Report because of an error of law, as it allegedly does not meet the requirements under the Climate Change Accountability Act, and toremit the 2021 Report to the Minister for reconsideration. Sierra Club of British Columbia Foundation v. Minister of Environment and Climate Change Strategy (Canada, Supreme Court of British Columbia)

New Claim Against the Turkish Government on Failure to Protect Carbon Sink

The Marmara Lake in the city of Manisa, Turkey, was announced as a wetland of national importance in 2017, and it has been under the protection of Regulation on Conservation of Wetlands. The lake is an alluvial barrier lake and an important carbon sink. To supply water to the city of Izmir, the government designated the water resources to the Gördes Dam, which resulted as a loss of resource for Marmara Lake and to it drying up within the last 10 years, losing almost 98%  of its surface area. Although the lake is almost dried up, the Manisa Directorate of Provincial Agriculture and Forestry has requested rent from the Claimant, a cooperative union of fishermen active in the Marmara Lake, for the fishery license and issued an order of payment. The Claimant, alleging that the reason for the drought is the wrong policies and inaction of the administration and stating that their income has decreased, and some members even left the fishery, requested the annulment of the order of payment. After the drought, many families that fished had to migrate. The Claimant asserts that the administration failed its duty to protect the Marmara Lake and other wetlands as carbon sinks with inadequate policies and insufficient environmental impact assessments for projects, which resulted in it drying up. The Claimant further asserts that considering the obligation to mitigate climate change under the United Nations Framework Convention on Climate Change and the Paris Agreement, which are immediately enforceable under the Turkish Constitution, the government has failed to fulfill its international obligations. As a result, annulment of the payment order issued by the administration is requested. S.S. Gölmarmara ve Çevresi Su Ürünleri Kooperatifi v. Republic of Türkiye Ministry of Agriculture and Forestry, Manisa Directorate of Provincial Agriculture and Forestry (Turkey, Administrative Court of Manisa)

Two Climate Cases at the European Court of Human Rights Will Be Heard by the Grand Chamber

On June 7, 2022, the Chamber of the European Court of Human Rights (ECtHR) relinquished jurisdiction in favor of the Grand Chamber in Carême v. France, a case concerning whether exposure to climate risk caused by insufficient government action is a violation of the European Convention on Human Rights (ECHR). On June 30, 2022, the Chamber of the European Court of Human Rights relinquished jurisdiction in favor of the Grand Chamber in Duarte Agostinho and Others v. Portugal and 32 Other States, which also concerns whether insufficient action on climate change violates the ECHR. The cases are now going to be examined by the ECtHR’s Grand Chamber of 17 judges on account of the fact that they raise a serious question affecting the interpretation of the Convention (Art 30 ECHR). Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Other States (European Court of Human Rights)