July 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 #172:
D.C. Circuit Upheld EPA’s Domestic Aircraft Emission Standards
The D.C. Circuit Court of Appeals denied petitions for review challenging the U.S. Environmental Protection Agency’s (EPA’s) adoption of regulations that aligned emissions standards for domestic aircraft with “technology-following” standards promulgated by the International Civil Aviation Organization (ICAO) rather than establish “technology-forcing” standards. As a threshold matter, the court determined that it had jurisdiction because at least one of the state petitioners—Massachusetts—had standing under Supreme Court precedent in the nearly factually identical Massachusetts v. EPA. On the merits, the D.C. Circuit first held that the applicable Clean Air Act provision did not mandate a technology-forcing approach and that the EPA regulation permissibly implemented the provision by aligning domestic regulations with ICAO standards. Second, the D.C. Circuit rejected the petitioners’ arguments that the regulation was arbitrary and capricious. The petitioners contended that EPA failed to account for climate change harms, failed to consider alternatives that would reduce greenhouse gas emissions, and failed to sufficiently consider impacts on minority and low-income populations and on federalism interests as required by two executive orders. The court found that EPA reasonably determined that the best way to reduce global greenhouse gas emissions was to align domestic standards with international standards and that, given this conclusion, it was not necessary for EPA “to exhaustively examine alternatives that departed from these standards.” The court also found that the two executive orders, which provided no right to judicial review, foreclosed the argument that EPA acted arbitrarily and capriciously by failing to comply with them. California v. EPA, Nos. 21-1018, 21-1021 (D.C. Cir. June 30, 2023)
DECISIONS AND SETTLEMENTS
D.C. Circuit Vacated Aspects of EPA’s Hydrofluorocarbon Phasedown Rule
The D.C. Circuit Court of Appeals vacated two parts of EPA’s regulations implementing the phasedown of hydrofluorocarbons (HFCs) mandated by the American Innovation and Manufacturing Act but rejected other challenges to the regulations. The court concluded that the statute did not authorize EPA either to mandate that refillable cylinders be used to transport HFCs or to establish a certification and tracking system for HFC distribution that required that a QR code be affixed to each container to document a valid certification identification. (Judge Pillard dissented from this portion of the decision, finding that the measures fell within EPA’s congressionally delegated authority to “ensure” compliance with the phasedown schedule.) The court upheld other challenged aspects of the rule, holding that the statute gave EPA authority to regulate HFCs within blends and finding that it could not consider an argument that the statute violated the nondelegation doctrine because the petitioner did not raise this argument before EPA. Heating, Air Conditioning & Refrigeration Distributors International v. EPA, Nos. 22-1251, 22-1252, 22-1253 (D.C. Cir. June 20, 2023)
Federal Court Granted Remand but Denied Attorneys’ Fees in New Jersey’s Climate Case Against Fossil Fuel Defendants
The federal district court for the District of New Jersey granted the motion by the New Jersey Attorney General, the New Jersey Department of Environmental Protection, and the Acting Director of the New Jersey Division of Consumer Affairs to remand to state court their lawsuit asserting claims against fossil fuel industry defendants for allegedly misrepresenting their products’ effects on the climate. The court noted that the defendants no longer contested remand due to the U.S. Supreme Court’s denial of petitions for writ of certiorari seeking review of decisions upholding remand orders in other cases. The district court further found that remand was “clearly warranted” in this case because the Third Circuit’s decision affirming remand orders in Hoboken’s and Delaware’s cases “fatally forecloses” each of the defendants’ jurisdictional arguments (complete preemption, Grable jurisdiction, jurisdiction under the Outer Continental Shelf Lands Act, federal officer removal jurisdiction, and federal enclave jurisdiction, although the court noted that the Third Circuit had not addressed the federal enclave jurisdiction argument but that four other circuit courts of appeal had uniformly rejected it). The court denied the plaintiffs’ request for attorneys’ fees incurred as a result of removal, noting that the defendants “consistently and candidly acknowledged” that the Third Circuit’s decision foreclosed their jurisdictional arguments and that they “correctly pointed out” that they would have been precluded from seeking removal had they waited for the Supreme Court to rule on the certiorari petitions. The court found that the defendants “offered colorable reasons to believe that the Supreme Court would at least consider, if not overturn, the existing precedent” and that the plaintiffs offered “little evidence that this brief detour to federal court prejudiced them.” Platkin v. Exxon Mobil Corp., No. 22-cv-06733 (D.N.J. June 20, 2023)
Conservation Law Foundation Allowed to Add Allegations Regarding Near-Term Climate Change Harms to Remedy Standing Shortcomings in Adaptation Suit
In Conservation Law Foundation’s (CLF’s) citizen suit alleging that Gulf Oil Limited Partnership violated federal environmental laws by failing to prepare a bulk petroleum storage terminal in New Haven for the impacts of climate change, the federal district court for the District of Connecticut granted CLF’s motion to amend its complaint to remedy deficiencies identified by the court when it dismissed certain counts under the Clean Water Act and all counts under the Resource Conservation and Recovery Act for failure to plausibly allege standing. In its earlier decision, the court concluded that CLF’s allegations regarding the “longer-term impacts” of climate change were not sufficient to establish Article III standing, which requires an imminent risk of harm. Although the court found that most of CLF’s proposed new allegations still pertained to climate change’s longer-term impacts, the court ruled that other assertions in the proposed amended complaint and its attachments adequately alleged standing, “albeit just barely.” The court found that the proposed allegations plausibly suggested that a Category 1 or 2 hurricane could be expected to strike the terminal “at virtually any time” and that there was “a substantial risk that such a storm will cause the discharge of pollutants from the Terminal.” The court said these allegations, “coupled with [CLF’s] allegations that climate change is continually increasing the risk that a severe storm will cause a discharge of pollutants from the terminal,” were sufficient to plausibly suggest a substantial risk of harm to CLF’s members in the near term. The court denied CLF’s request to assert a new Clean Water Act claim alleging that Gulf Oil caused or contributed to an exceedance of water quality standards. The court found that CLF failed to show good cause to add this new count. Conservation Law Foundation, Inc. v. Gulf Oil LP, No. 3:21-cv-00932 (D. Conn. June 23, 2023)
After Denial of Petition Seeking Rulemaking to Reduce Oil and Gas Production on Public Lands, Conservation Groups Withdrew Lawsuit and Said Evaluation Underway of Legal Adequacy of Denial
On June 28, 2023, Center for Biological Diversity (CBD), WildEarth Guardians, and Friends of the Earth withdrew their lawsuit seeking to compel the U.S. Department of the Interior to respond to a January 2022 petition requesting a rulemaking to reduce the rate of oil and gas production on federal public lands to near zero by 2035. The Principal Deputy Assistant Secretary for Land and Mineral Management notified CBD on June 27 that she had decided not to initiate the rulemaking because the Department “has a robust rulemaking agenda already underway to address the climate crisis and implement reforms to our conventional energy programs, and has insufficient resources to undertake the proposed rulemaking at this time.” In a press release, the plaintiff groups said they were “now evaluating the legal adequacy of the substance of the response” to their petition. Center for Biological Diversity v. Haaland, No. 1:23-cv-01144 (D.D.C. June 28, 2023)
Federal Court Said State Department Justified FOIA Redactions in Three Documents Related to Paris Agreement
In a Freedom of Information Act (FOIA) lawsuit seeking documents related to the Paris Climate Agreement, the federal district court for the District of Columbia held that the U.S. Department of State adequately demonstrated that it had properly redacted information in three documents based on the deliberative process and attorney client privileges. The three documents were (1) an action memo from subordinate State Department employees to the Secretary of State seeking written authorization to enter the Paris Climate Agreement; (2) a background document attached to the action memo; and (3) a set of draft talking points prepared for the National Security Council by a State Department attorney. The court found that the State Department established that the redacted content was both pre-decisional and deliberative and would cause foreseeable harm to the agency’s processes by impairing future internal deliberations. The court also found that the State Department properly justified the withholding of information based on attorney-client privilege, satisfied its burden to show that disclosure of this information would result in foreseeable harm, and demonstrated that it had released reasonable segregable information. Energy Policy Advocates v. U.S. Department of State, No. 1:19-cv-03307 (D.D.C. June 27, 2023)
Parties Agreed to Dismissal of Challenge to Vegetation Management and Restoration Project for Hoosier National Forest After Court Granted Preliminary Injunction
After the federal district court for the Southern District of Indiana granted a preliminary injunction barring the U.S. Forest Service from conducting a burn and other activities related to a vegetation management and restoration project in the Hoosier National Forest, the Forest Service withdrew the supplemental information report it had prepared pursuant to the National Environmental Policy Act and said it would further evaluate its decision. The parties then stipulated to dismissal of the plaintiffs’ action except for the plaintiffs’ claim for recovery of fees and costs, which was resolved on June 27, 2023, when the court entered judgment in favor of the plaintiffs in the amount of $70,000 pursuant to an officer of judgment made by the defendants and accepted by the plaintiffs. The plaintiffs’ claims included assertions that the Forest Service failed to analyze the project’s contribution to climate change. Monroe County Board of County Commissioners v. U.S. Forest Service, No. 4:23-cv-00012 (S.D. Ind. June 27, 2023)
Plaintiff Voluntarily Dismissed Challenge to Removal of Seasonal Restrictions on Hopper Dredging in Brunswick Harbor
The federal district court for the Southern District of Georgia granted voluntary dismissal of a case challenging the U.S. Army Corps of Engineers’ removal of seasonal restrictions on hopper dredging in Brunswick Harbor. The plaintiff alleged that the Corps violated the National Environmental Policy Act (NEPA), including by failing to adequately assess the effects—including climate change impacts—of eliminating the seasonal limitation on dredging. The plaintiff filed a notice of voluntary dismissal after the Corps (1) modified a dredging contract to limit dredging to a period between December 15, 2022 and March 31, 2023; (2) issued a memorandum directing that hopper dredges not be used for maintenance dredging other than during that period until further NEPA review was conducted; and (3) issued a statement confirming its intent to conduct additional NEPA review by preparing an environmental impact statement. One Hundred Miles v. U.S. Army Corps of Engineers, No. 4:22-cv-0029 (S.D. Ga. June 9, 2023)
Plaintiffs Agreed to Dismissal of Lawsuit Challenging Texas Highway Project
On June 16, 2023, three groups challenging the NEPA review for a highway project in Austin, Texas, stipulated to the dismissal of their lawsuit with prejudice. Their allegations had included that the Texas Department of Transportation failed to analyze impacts on climate change. In an interview with an Austin television station, the board president for one of the groups said the group was considering a separate suit to challenge a project affecting a different segment of the highway and did not have the capacity to pursue multiple lawsuits. Rethink35 v. Texas Department of Transportation, No. 1:22-cv-00620 (W.D. Tex. June 16, 2023)
Louisiana Federal Court Rejected Protesters’ Claims that Critical Infrastructure Law Protecting Pipelines Was Unconstitutional
The federal district court for the Western District of Louisiana denied summary judgment to pipeline protesters who asserted that a Louisiana law that prohibited “unauthorized entry of a critical infrastructure” was facially unconstitutional and unconstitutional as applied. A 2018 amendment to the law expanded the definition of “critical infrastructure” to include pipelines. The protesters were arrested in 2018 during a protest involving the Bayou Bridge Pipeline but were never charged. As an initial matter, the court denied the district attorney’s motion for summary judgment on the issue of the plaintiffs’ standing. The court found that even though the district attorney had disavowed prosecution of the plaintiffs and the statute of limitations had run, the plaintiffs still possessed standing to the extent enforcement of the law chilled their future protest activity. The court further ruled, however, that both the facial and as-applied First Amendment challenges to the law failed. The court found that to the extent the statute reached protected expressive conduct, it was not content-based, and that the law satisfied the Supreme Court’s O’Brien test for content-neutral restrictions. In addition, the court rejected the plaintiffs’ claim that the statute was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. White Hat v. Landry, No. 6:20-cv-00983 (W.D. La. June 5, 2023)
Fish and Wildlife Service Agreed to Make New Finding on Listing Southern Hognose Snake as Endangered or Threatened
The U.S. Fish and Wildlife Service (FWS), its director, and the Secretary of the Interior entered into a stipulated settlement agreement to resolve a lawsuit in which Center for Biological Diversity challenged the FWS’s 2019 finding that listing the southern hognose snake was not warranted under the Endangered Species Act (ESA). CBD’s complaint alleged that climate change was a “primary threat” to the snake and that FWS’s failure to consider factors such as climate change-induced weather events violated the ESA’s mandate to rely on best available science. The settlement agreement said the FWS had determined that “it is prudent to re-evaluate the status of the southern hognose snake under the ESA and develop a new 12-month finding, … based on the best scientific and commercial data available and after taking into account any efforts being made by any states to protect the species … , as to whether the southern hognose snake warrants listing as an endangered or threatened species.” The FWS agreed to submit the new finding to the Office of the Federal Register by August 27, 2025. Center for Biological Diversity v. Haaland, No. 1:23-cv-00221 (D.D.C. June 1, 2023)
Ohio Court Upheld Air Permit for Natural Gas Booster Station
The Ohio Court of Appeals rejected appeals by a community group and its individual members of an Environmental Review Appeals Commission’s (ERAC’s) dismissal of challenges to a permit authorizing emission of air pollutants at a natural gas booster station. The court found that the appellants failed to satisfy notice pleading requirements when they raised two assignments of error before ERAC: (1) the permit’s emission limits and requirements did not take existing emissions into consideration and (2) the permit did not account for emissions from a neighboring compressor station and its inadequate limits would cause a public nuisance. To establish that they satisfied the notice pleading requirements for their public nuisance claim, the appellants cited portions of the record that mentioned, among other things, the adverse impacts of carbon dioxide and other greenhouse gas emissions and climate change. The Court of Appeals said the appellants’ statements were not sufficient to satisfy the pleading requirements, “as they amount only to a description of the detrimental effects of air pollution generally and within this specific community already plagued by the effects of another local facility” and did not set forth specific emission limits or permit conditions that would result in unreasonable risk of harm. Concerned Residents of Salem Township v. Stevenson, Nos. 22AP-393 et al. (Ohio Ct. App. June 27, 2023)
California Appellate Court Upheld Application of CEQA Exemption to Review of Local Zoning Law Permitting Cannabis Uses
The California Court of Appeal affirmed a trial court’s rejection of a California Environmental Quality Act (CEQA) challenge to a City of Pomona ordinance that designated areas where cannabis-related land uses would be permitted. A petitioner whose storefront property was excluded from the locations where commercial cannabis activity would be allowed challenged the City’s action, arguing that the City improperly relied on an exemption from further CEQA review for actions that are consistent with the development density established by existing general plan policies, in this case a General Plan Update for which an environmental impact report (EIR) was finalized in 2014. The City compared the proposed cannabis ordinance’s effects, including greenhouse gas emissions, to those of the General Plan Update and concluded that the cannabis ordinance would not result in new or more severe environmental effects than those identified in the 2014 EIR. The Court of Appeal noted that cannabis-related development would be subject to development standards set forth in the existing zoning district and the General Plan Update and, like other uses that could be developed, would result in greenhouse gas emissions and energy demand, particularly from indoor cultivation. The court found that substantial evidence supported the City’s finding that the ordinance would not result in significant impact on greenhouse gas emissions (or other environmental impacts) beyond that identified in the 2014 EIR. Lucas v. City of Pomona, No. B310777 (Cal. Ct. App. June 13, 2023)
California Appellate Court Upheld CEQA Review for University of California Wildfire Risk Mitigation Projects
The California Court of Appeal found that the environmental impact report prepared by the Regents of the University of California, Berkeley (Regents) for vegetation removal projects to reduce wildfire risk complied with CEQA. Among the arguments rejected by the court was a contention that the EIR did not discuss how implementing the vegetation removal plan might worsen the effects of future climate change on the project areas. The court wrote that this argument “need not detain us long” because the petitioner had acknowledged that “the EIR acknowledges the climate may change in the project areas; examines whether implementation of the plan will increase greenhouse gas emissions; and discusses whether climate change will increase wildfire risk.” Regarding the Regents’ contention that they did not have an obligation to analyze the impact of climate change on the projects, the court noted that the petitioner had argued not that the EIR was required to consider how climate change would affect the projects but that the EIR had to consider the projects’ effects under future climate change conditions. Claremont Canyon Conservancy v. Regents of the University of California, No. A165012 (Cal. Ct. App. June 9, 2023)
Maryland Department of the Environment Agreed to Reopen Industrial Stormwater General Permit for Public Comment
On June 13, 2023, a Maryland Circuit Court granted a consent motion for limited remand in cases challenging the Maryland Department of the Environment’s final Industrial Stormwater General Permit. The environmental groups challenging the permit had 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. The Baltimore Sun reported that the State agreed to reevaluate some portions of the permit and reopen the permit for public comment. The Sun article indicated that “MDE officials felt the environmental groups’ gripes with the permit weren’t warranted, but agreed to additional public comment because it ‘may benefit all parties and conserve judicial resources at this stage of the proceedings.’” In re Chesapeake Bay Foundation, Nos. C-03-CV-22-005075, C-03-CV-22-005086, C-03-CV-22-005087 (Md. Cir. Ct. June 13, 2023)
Citing Changed Legal Landscape, Montana Trial Court Stayed Order Vacating Air Permit for Gas-Fired Power Plant
A Montana District Court granted NorthWestern Energy’s motion to stay the court’s April 2023 order vacating a permit for the Laurel Generating Station, a new gas-fired power plant. In the April order, the court found that the Montana Department of Environmental Quality’s Montana Environmental Policy Act (MEPA) review should have considered impacts from lighting and the effect of the power plant’s carbon dioxide emissions within Montana’s borders. In its order granting the stay, the court noted that “much changed in the legal landscape” in the two months since the court vacated the permit, including amendments to the MEPA language on which the court relied and a Montana Supreme Court decision clarifying the remedies that are available when a court finds than an agency failed to take a hard look at environmental impacts. The court described the MEPA amendments as “eliminat[ing] the requirement that agencies look at the impacts of carbon dioxide emissions within the boundaries of the state of Montana as part of an environmental assessment.” Regarding the Supreme Court decision, the district court said the decision clarified that vacatur was an improper remedy under MEPA’s current remedial provisions. The court said the MEPA amendments were likely to be challenged as unconstitutional but concluded that it had no jurisdiction to address the constitutional issues given that a notice of appeal had already been filed. [Editor’s note: In June 2023 a court in Montana held a trial on the constitutionality of the MEPA restrictions on consideration of climate change.] The court found that three of the four factors for determining whether to grant a stay weighed in favor of the defendants. First, they made a strong showing that they were likely to succeed on the merits given the changed legal landscape. Two, they would be irreparably injured absent a stay given the cost increase that would result from a construction delay. Three, a stay pending appeal would not change the remedies available to the plaintiffs or affect their ability to properly raise the constitutional questions presented by the MEPA amendment. With respect to the fourth factor—“where the public interest lies”—the court found that there was “no objective legal answer.” The court said the stay would remain in effect during the pendency of the appeal to the Supreme Court. Montana Environmental Information Center v. Montana Department of Environmental Quality, No. DV-56-2021-0001307-OC (Mont. Dist. Ct. June 8, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
States Asked Supreme Court to Review Determination that They Lacked Standing to Challenge Social Costs of Greenhouse Gases
Missouri and 10 other states filed a petition for writ of certiorari seeking review of the dismissal, on standing grounds, of their challenge to the Biden administration’s interim social costs of greenhouse gases and President Biden’s executive order requiring the publication of the interim social costs of greenhouse gases and other related actions. The petition presented the question of whether the states’ alleged harms to their proprietary and sovereign interests (as well as a completed procedural injury) were sufficient for Article III standing. The petition argued that the states had alleged “a host of injuries that relate to the fact that the Interim Values will inevitably expand the federal regulatory burdens on the States and their citizens in virtually every major sector of American economic life” and result in harms to the states’ “proprietary interests in energy consumption by homes, industries, and farms, their energy production to neighboring states, and the tax revenue that arises from these economic activities.” The states contended that these harms were not speculative. The states also alleged that the challenged actions harmed their sovereign interests by directing how states must conduct their duties in cooperative-federalism programs. They argued that the Eighth Circuit “simply refused to provide the special solicitude owed States.” The alleged procedural injury was an “deprivation of the right to participate in notice-and-comment rulemaking.” Missouri v. Biden, No. 22-1248 (U.S. June 28, 2023)
Federal Defendants Asked Oregon Federal Court to Dismiss Juliana Plaintiffs’ Amended Complaint, Said They Would Request Interlocutory Appeal of Order Granting Leave to Amend
After the federal district court for the District of Oregon granted the Juliana youth plaintiffs’ motion to amend their complaint to attempt to remedy standing deficiencies identified by the Ninth Circuit, the defendants filed a motion to dismiss the amended complaint. The defendants argued that the amended complaint was “not different in any relevant sense” from the complaint rejected by the Ninth Circuit and that the court therefore should comply with the Ninth Circuit’s mandate and dismiss the amended complaint. In addition, the defendants argued that the plaintiffs did not allege a redressable claim, that the action was not a case or controversy over which a federal court would have jurisdiction, and that the plaintiffs’ claims based on constitutional violations and an alleged public trust failed on the merits because the Constitution does not provide a fundamental right to a “stable climate system” and no federal public trust doctrine applies. The defendants asked that, in the event the court denies the motion to dismiss, that it certify its order for interlocutory appeal. Nine days before the defendants filed their motion to dismiss, plaintiffs filed a motion to set a pretrial conference or to enter a pretrial order setting an expedited trial date no later than Spring 2024. The defendants opposed the motion, contending that the court should first resolve the motion to dismiss and alternative motion for interlocutory appeal, as well as a forthcoming motion requesting that the court certify for interlocutory appeal its order granting leave to file an amended complaint. Juliana v. United States, No. 6:15-cv-01517 (D. Or. June 22, 2023)
Multnomah County Seeks $1.55 Billion in Climate Change Damages and $50 Billion Abatement Fund in Suit Against Fossil Fuel Industry Defendants
The County of Multnomah filed a lawsuit in Oregon Circuit Court against fossil fuel companies, oil and gas industry trade associations, and the consulting company McKinsey and Company, Inc. (McKinsey), seeking to hold them liable for harms allegedly caused by anthropogenic climate change (ACC) to which the defendants substantially contributed. The County alleged that the defendants executed “a scheme to rapaciously sell fossil fuel products and deceptively promote them as harmless to the environment, while they knew that carbon pollution emitted by their products into the atmosphere would likely cause deadly extreme heat events like that which devastated Multnomah County in late June and early July 2021,” when the region over three consecutive days experienced high temperatures exceeding all previous high temperatures. The County alleged that studies linking the 2021 extreme heat event “corroborated prognoses that the Defendants had since the late 1950s internally forecasted would occur.” The County further alleged that the defendants investigated and internally discussed climate science but did not advise the public of the impacts of fossil fuel usage on the climate. The complaint also alleged that McKinsey has done substantial work for many fossil fuel companies and coordinated and participated in a campaign of deception about climate change. The County alleged that it had incurred in excess of $50 million in actual damages due to extreme heat, wildfire, and other disasters as a result of the defendants’ misconduct and that it would incur future economic damages of at least $1.5 billion. The County also alleged that it would incur substantial costs to prepare for, mitigate, adapt to, and abate the ongoing climate change nuisance. The County asserted claims of intentional and negligent creation of public nuisance, negligence, fraud and deceit, and trespass. In addition to compensatory awards of $50 million for past damages and $1.5 billion for future damages, the County requested the establishment of an abatement fund of at least $50 billion paid for by the defendants. The abatement fund is to be used “for the costs of studying and planning on a countywide scale for the renovations, replacements, retrofits and revised programs that are reasonably necessary to reduce the ongoing harms caused by the Defendants, the implementation of which will reasonably prepare the County and its residents for foreseeable negative impacts arising from the increased frequency and severity of extreme heat, wildfire, drought and other ACC-related consequences.” The County also sought attorneys’ fees, costs and expenses, and pre-judgment and post-judgment interest. County of Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or. Cir. Ct., filed June 22, 2023)
Lawsuit Alleged Failure to Consider Logging Project’s Impacts on Carbon Storage and Emissions
Oregon Wild filed a lawsuit in federal court in Oregon challenging the U.S. Forest Service’s Grasshopper Restoration Project in Mt. Hood National Forest. The complaint alleged that the project would allow commercial logging in mature, moist mixed-conifer forest that would “degrade suitable and critical habitat for the northern spotted owl, emit the greenhouse gas carbon dioxide, and eliminate current and future carbon storage.” The plaintiff asserted that the Forest Service violated NEPA by failing to take a hard look at the project’s environmental impacts and failing to prepare an environmental impact statement. Among other things, the complaint alleged that substantial scientific dispute existed regarding the project’s effects on carbon storage and emissions and climate change adaptation. Oregon Wild alleged that the Forest Service “failed to utilize available tools and information to take a site-specific hard look at the impacts of the Grasshopper Project on carbon storage and emissions, including the social cost of carbon, and further failed to update its analysis and consideration of alternatives in light of Executive Order 14072, which states the current presidential administration’s policy to conserve mature and old-growth forests on federal lands, in part for their ability to absorb and store carbon from the atmosphere.” The complaint also asserted that the Forest Service relied on an outdated biological opinion to fulfill its Endangered Species Act obligations. Oregon Wild v. U.S. Forest Service, No. 3:23-cv-00935 (D. Or. June 27, 2023)
Environmental Groups Challenged Approval of Permits to Drill New Oil Wells in San Joaquin Valley
Four environmental groups filed a lawsuit in the federal district court for the Eastern District of California challenging the U.S. Bureau of Land Management’s (BLM’s) approval of six drilling permits for new oil wells in the San Joaquin Valley. The groups asserted claims under the Clean Air Act, NEPA, the Federal Land Policy and Management Act, the Mineral Leasing Act, and the Freedom of Information Act. They contended that BLM had failed to account for climate and other impacts of continued expansion of oil and gas drilling on public lands and had approved the six permits despite having not completed a cumulative impacts analysis for its resource management plan that it agreed to conduct to resolve other lawsuits. With respect to climate change, the complaint alleged that BLM’s environmental assessment “entirely failed to quantify cumulative greenhouse gas emissions on a regional or national scale or allow for informed choices between alternatives including managed fossil fuel production decline on public land.” Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:23-cv-00938 (E.D. Cal., filed June 22, 2023)
Endangered Species Act Lawsuit Challenged Failures to Make Final Decisions for Species Threatened by Climate Change
Center for Biological Diversity filed an Endangered Species Act citizen suit in federal court in Arizona challenging the U.S. Fish and Wildlife Service’s alleged failures to issue final rules on petitions to list a number of species, to issue a timely 12-month finding on one species, and to finalize critical habitat protection for another species. Species that are the subjects of the lawsuit include the cactus ferruginous pygmy owl (which CBD alleged is threatened by droughts driven by climate change); the Peñasco least chipmunk (which allegedly is threatened by climate change events such as drought and wildfires); six species of freshwater mussels threatened by climate change; the Mt. Rainer white-tailed ptarmigan (a bird adapted to frigid climates and whose alpine habitat is shrinking due to climate change); distinct population segments (DPSs) of the foothill yellow-legged frog (for which the complaint cited climate change as one threat); the tall western penstemon (a flower threatened by climate change); and the Pacific Marten coastal DPS (a carnivore of the weasel family whose habitat has been lost and fragmented due to logging and wildfires). Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:23-cv-00287 (D. Ariz., filed June 22, 2023)
Railroad Groups Challenged California’s Air Regulation for Locomotives
Two associations representing freight and passenger railroads filed a lawsuit in the federal district court for the Eastern District of California challenging the “In-Use Locomotive Regulation” adopted by the California Air Resources Board (CARB) on April 27, 2023. The associations asserted that the regulation was preempted by the Interstate Commerce Commission Termination Act, as well as the Clean Air Act and Locomotive Inspection Act. They also asserted that the regulation violated the Dormant Commerce Clause. The complaint alleged that freight rail, “[d]espite its significance to the U.S. economy, … accounts for just 1.7% of transportation-related greenhouse gas emissions” and that “railroads have continued to explore and invest in emissions-reducing initiatives.” The associations contended that the CARB regulation’s “dictates are unworkable and counterproductive” because the mandates were “premised on unrealistic technology forecasts” regarding when zero-emissions technology would be available. The complaint alleged that the regulations would “disrupt railroads’ existing investments in safety and the environment and because the compliance burdens imposed make the industry less competitive in relation to other forms of freight and passenger transportation that produce far greater levels of criteria, toxic, and climate pollutants, such as trucks.” Association of American Railroads v. Randolph, No. 2:23-cv-01154 (E.D. Cal., filed June 16, 2023)
Groups Challenged TVA Environmental Review for New Gas-Fired Power Plant
Three environmental groups filed a lawsuit against the Tennessee Valley Authority (TVA) in the federal district court for the Middle District of Tennessee alleging that the TVA violated NEPA when it decided to replace a coal-fired power plant that it was retiring with a combined-cycle gas plant. The groups alleged that the TVA failed to evaluate “the climate-warming impacts of the Plant’s emissions, the viability of carbon-free alternatives, and the cost of mitigating emissions in compliance with the climate objectives of the United States to decarbonize the power sector.” In addition, the groups alleged that the TVA refused to calculate how the Inflation Reduction Act (IRA) would affect the costs of carbon-free alternatives. They also alleged that rolling blackouts that occurred as a result of a winter storm in December 2022 undermined the final environmental impact statement’s (final EIS’s) “assumption that gas plants would provide firm, reliable power in a way that carbon-free alternatives could not.” The NEPA violations asserted by the groups included failure to consider the plant’s climate consequences; failure to take a hard look at the impacts of a connected action (a gas pipeline to supply fuel); failure to objectively consider reasonable carbon-free energy alternatives, such as a solar and battery-storage option that the TVA dismissed based on transmission issues; and failure to rely on accurate economic assumptions to compare alternatives, including by excluding costs of carbon-capture technology and hydrogen conversion for the selected gas plant alternative, excluding social costs of greenhouse gases from its total system costs for the gas plant, and failing to consider economic incentives available under the IRA. The groups also contended that the TVA should have supplemented the final EIS to consider significant new circumstances and information regarding the unreliability of the existing fossil fuel-fired plant, the risks of extreme winter weather on gas supply and gas-fired power plants, and the resiliency of demand response, energy storage, solar, and wind, as demonstrated during the 2022 winter storm. Appalachian Voices v. Tennessee Valley Authority, No. 3:23-cv-00604 (M.D. Tenn., filed June 14, 2023)
Groups Said New Jersey Improperly Considered Renewable Energy Goals in Consistency Determination for Offshore Wind Project
Three organizations filed a notice of appeal in the New Jersey Superior Court, Appellate Division, of the New Jersey Department of Environmental Protection’s (NJDEP’s) consistency determination under the Coastal Zone Management Act (CZMA) for the Ocean Wind 1 Offshore Wind Turbine Project. One of the issues identified in the notice of appeal was that NJDEP allegedly` acted outside its statutory authority by considering factors in support of consistency, such as New Jersey’s overall wind or renewable power goals, that are “not included in the CZMA and that bear no direct or obvious relation to the CZMA coastal zone factors.” In re Challenge to the Consistency Certification of the Ocean Wind 1 Offshore Wind Turbine Project, No. __ (N.J. Super. Ct. App. Div., filed June 8, 2023)
Lawsuit Filed Challenging Coastal Use Permit for Methane Pipeline and Compressor Station in Louisiana
Healthy Gulf and Sierra Club filed a petition for judicial review in Louisiana District Court challenging the granting of a coastal use permit for a methane pipeline and compressor station system (the Evangeline Pass Project) to supply a liquefaction and export facility. The groups contended that the Louisiana Department of Natural Resources (DNR) failed to comply with the mandates of the Coastal Resources Management Act, including by failing to consider the project’s cumulative impacts on St. Bernard Parish and the Louisiana Coastal Zone, which the groups contended should have included cumulative emissions and related increases in storm severity and sea level rise and the impacts of the destruction of wetlands on storm surge and flooding protection. In addition to legal errors under the Coastal Resources Management Act, the groups alleged that DNR failed to meet its public trustee obligations under the Louisiana Constitution. Healthy Gulf v. Secretary, Louisiana Department of Natural Resources, No. __ (La. Dist. Ct., filed June 21, 2023)
Oil Refiner Filed New Suit Challenging Allocation of Credits in Oregon Climate Protection Program
An oil refiner filed a lawsuit against the Oregon Department of Environmental Quality challenging the allocation of credits under Oregon’s Climate Protection Program. The Portland Business Journal reported that the lawsuit challenged free “compliance instruments” given to Shell and that the complaint asserted equal protection, due process, and Commerce Clause claims, as well as other constitutional violations. The refiner acquired a Washington refinery from Shell in late 2021, but the distribution of credits was based on imports from a three-year period ending before the acquisition. Shell therefore received the credits. A court denied the oil refiner’s request for a preliminary injunction in an earlier suit challenging the allocation of the credits. HF Sinclair Corp. v. Oregon Department of Environmental Quality, No. __ (Or. Cir. Ct., filed June 5, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
Committee finds that Shell’s claims of climate neutrality in the “Make a difference. Drive CO2 neutral” campaign violate of the Code for Environmental Advertising
The contested advertisement contained several statements by Shell in the campaign “Make a difference. Drive CO2 neutral,” specifically on Shell’s website. The complaint alleged that Shell falsely claimed that the damage caused by CO2 emissions can be offset or neutralized through voluntary carbon credits. The complaint was based on various scientific reports, including the IPCC Synthesis Report in 2014. The Committee held that the average consumers would understand the term “neutralized” to mean that the harm caused by CO2 emissions was completely compensated by offsetting measures. This impression was reinforced when Shell issued an explanation of the campaign on its website. While the RCC acknowledged that Shell had plausibly demonstrated that it followed certain standards and guidelines, it pointed out that Shell did not guarantee the full offsetting in practice. The RCC stressed that article 3 of the Code for Environmental Advertising (MRC) set a high bar with regards to environmental claims which must be demonstrably correct. Against this background, Shell's claims were too absolute, as they guaranteed a result which was not certain. Thus, the Committee found the advertising claims to be misleading and in breach of articles 2 and 3 of the MRC. RCC Ruling on Shell “Drive CO2 neutral” 1 (Reclame Code Commissie, Netherlands).
States and intergovernmental organizations submit amicus briefs to the ITLOS on climate change advisory opinion in preparation for September hearing
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 (the "Tribunal") on the legal questions set out below. As fixed by the order, the deadline to submit briefs was June 16th, 2023. By that date, 31 states and eight intergovernmental organizations submitted written statements pursuant to article 138 paragraph 3 and article 133 paragraph 3 of the Rules of the Tribunal. Ten additional groups submitted written statements not pursuant to these articles. Rwanda and the Food and Agricultural Organization of the United Nations (FAO) submitted statements after the due date.
In an order authorized on June 30, 2023, Judge Albert Hoffman, President of the Tribunal, set September 11 as the date for the opening hearing of the case. At the hearing, oral statements may be made by State Parties to the Convention, the Commission of Small Island States on Climate Change, and other intergovernmental organizations. Parties wishing to make oral statements must indicate their intention to do so to the Registrar of the Tribunal no later than August 4. Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (International Tribunal for the Law of the Sea).
DECISIONS & SETTLEMENTS
Court rules that TotalEnergies’ claims of climate neutrality are misleading and in breach of German competition law
In 2022, Deutsche Umwelthilfe (DUH) filed legal action against TotalEnergies due to an advertising statement concerning “CO2-compensated heating oil.” TotalEnergies claimed to offset the CO2 emissions of the oil as part of its climate plan. DUH argued that this advertising claim constituted misleading commercial practices, and was thus in breach of article 5a of the Act Against Unfair Competition. First, DUH claimed that the measures implemented to achieve the alleged climate neutrality of the advertised oil were insufficiently presented. Second, DUH criticized the offsetting measures to reach CO2 neutrality, namely the purchase of emission credits for a forest protection project in the Madre de Dios region, Peru (ClimatePartner Tambopata forest protection project). This case is part of a series of DUH legal proceedings concerning climate neutrality advertising promises.
On April 5th, 2023, the Düsseldorf Regional Court fully upheld DUH's lawsuit, ruling that TotalEnergies’ claims of climate neutrality were misleading. TotalEnergies is no longer allowed to advertise its heating oil as “CO2 compensated.” Deutsche Umwelthilfe v. TotalEnergies Warm & Kraftstoff Deutschland GmbH (Regional Court of Düsseldorf, Germany).
RCC rules that Shell trucks’ climate neutrality slogans are misleading and in breach of the Code for Environment Advertising
At the core of the complaint was an advertisement by Shell displaying a Shell truck with an image of a rainforest in the background stating: “I AM CO2 NEUTRAL. ON THE WAY. ARE YOU?” The complainant alleged that Shell’s statement on CO2 neutrality was misleading, referring to Shell's inaction on reducing CO2 emissions and the nature of Shell's business. The complainant referred to the District Court of the Hague's judgment on 26 May 2021 in Milieudefensie et al. v. Royal Dutch Shell plc. to highlight Shell’s intentions. The complainant also argued that the rainforest wrongly suggested that Shell helped with the preservation of the rainforest. Shell, on the other hand, argued that it used carbon offsetting to reach carbon neutrality. Shell also argued that the “I” referred to the displayed truck, and not the company as a whole. Lastly, Shell stated that the rainforest was an example of the CO2 compensation programs. The RCC held that the slogan could be interpreted in various ways, and that it was unclear that it only referred to the truck. The RCC considered the slogan to be misleading as the cargo (fossil fuel) and the company itself were not CO2 neutral. Thus, the RCC considered the advertisement to be in breach of article 2 of the Code for Environmental Advertising. In its ruling, the RCC referred to the reasoning of the RCC’s Ruling on Shell “Drive CO2 neutral” 1. RCC Ruling on Shell “Drive CO2 neutral” 2 (Reclame Code Commissie, Netherlands).
Appeal body of RCC confirms original ruling that Shell’s “CO2 compensation” claim is no different than its “CO2 neutral claim” and therefore still in violation of the Code for Environmental Advertising (MRC)
The contested advertising concerned several statements on Shell’s website regarding the campaign “Make a difference. Compensate CO2 emissions.” The complaint was in line with the previous ruling on Shell “Drive CO2 neutral” 1 in which the RCC held that Shell’s advertising was in breach of articles 2 and 3 of the Code for Environmental Advertising (MRC). After the ruling, Shell had replaced “CO2 neutral” with “CO2 compensation.” The complainants argued that these terms were synonymous and that an average consumer would understand the compensation claims as undoing the climatic harm caused by fossil fuels. However, Shell had not provided the scientific evidence that the promised offsetting actually led to this result in practice. The Committee found that this claim was not different from the previously assessed “CO2 neutral” claim. Thus, the Committee found the claim to be misleading and in breach of articles 2 and 3 MRC. Shell appealed the ruling and argued that the Committee's interpretation of the claim put Shell in an impossible evidential position which would hinder Shell to communicate about its CO2 offset program. The appeal body of the RCC confirmed the preliminary ruling. RCC - CvB Ruling on Shell “Compensate your emissions” (Reclame Code Commissie, Netherlands).
Appeal body confirms original ruling that Arla’s advertisement claims of climate neutrality are misleading and therefore in violation of the Code for Environmental Advertising (MRC)
The contested advertising concerned the statement “climate neutral” for Arla organic dairy on the product packaging, the website, and in videos and commercials. The complainant argued that such claims implied that the milk had no effect on the climate. Because this environmental claim could not be substantiated, it allegedly violated articles 2 and 3 of the Code for Environmental Advertising (MRC). The Committee was of the view that an average consumer would interpret these claims in the sense that the production of the products had no impact on the climate in that adverse effects were completely canceled out. The Committee referred to a previous ruling on Shell “Drive CO2 neutral” 1. After giving the defendant the opportunity to provide more information in an interim decision, the Committee found that Arla had not demonstrated the absolute certainty required with regard to the full and permanent offsetting of emissions through its forest projects. Thus, the accuracy of an absolute claim such as “climate neutral” had not been demonstrated as required by article 3 MRC. The advertising was therefore in breach of article 2 MRC. Arla subsequently appealed this decision, arguing that it met all the established and highest standards for claiming climate neutrality. Specifically, Arla stated that its “climate neutral” claim was a relative and not an absolute one, as the claim related to a label and that it was entitled to use this label for its products. Therefore, Arla argued that this case differentiated from previous cases which had involved absolute claims. The appeal body confirmed the decision of the RCC in part. It found that Arla’s statements were misleading to the extent that there was no clarification that the claim specifically related to the label. Thus, the appeal body found the statements to be misleading within article 2 MRC and in conjunction with article 8.3(a),(c) of the Dutch Advertising Code. The appeal body found no violation of article 2 MRC. RCC Ruling on Arla “climate neutral milk” (Reclame Code Commissie, Netherlands).
RCC rules that Chiquita’s claims of CO2 neutrality on banana stickers are misleading and lacking in context
The contested advertising concerned a sticker on Chiquita’s bananas which included the statement “CO2 Neutral.” The complaint alleged that Chiquita’s “CO2 Neutral” claim was not true. Several statements were pointed out on Chiquita’s website which referred to CO2 emission reduction by 30 percent by the end of 2030. The Commission found the sticker on the bananas with the claim “CO2 Neutral” to be misleading pursuant to article 2 of the Code for Environmental Advertising (MRC), as it did not contain any reference to information about the interpretation of this claim. Because any context was lacking, the meaning of this claim was unclear to the average consumer. The Committee noted that the meaning of the environmental claim had had to be made clear in the advertisement. The Committee found it insufficient that the meaning of “CO2 Neutral” was clarified on a separate website. It also noted that the mere mention of a website was insufficient to make the meaning of the claim clear. Because the claims were not admissible on the basis of the foregoing, the Committee did not have to examine the question whether Chiquita was able to demonstrate the correctness of its absolute environmental claim pursuant to article 3 MRC. However, the Committee did refer to the strict standards set out in previous rulings. RCC Ruling on Chiquita “climate neutral bananas” (Reclame Code Commissie, Netherlands).
Court rules that tourist development in Hungary will be heavily influenced by climate change
In June 2021, the Municipality of the Village of Tihany submitted a request for a screening procedure regarding a planned tourist development near Lake Balaton, the largest freshwater lake in Central Europe. The project included a visitor center, an open-air visitor area, and a car parking lot. The screening documentation covered a number of issues, ranging from noise via air pollution to nature conservation. With regard to climate issues, the documentation briefly found that the implementation of the project would not be influenced by climate change. The Veszprém County Government Office issued a decision in July 2021, declaring that the planned project would have no significant impact on the environment and therefore there would be no need to perform an Environmental Impact Assessment.
Friends of the Earth Hungary filed a lawsuit against the Veszprém County Government Office in August 2021. In its file, the plaintiff claimed that the climate chapter of the screening documentation is lacking in actual content. It claimed that the planned project is obviously linked to water related tourism, and as such, will be heavily influenced by climate change. It also claimed that due to this, the decision of the defendant to not require an Environmental Impact Assessment is unlawful and breaches the Government Decree on EIA that requires the detailed presentation of climate change related information in screening documentations before decision-making.
The Defendant in its counter-argument claimed that the project would be implemented further away from the waterfront and not directly at the lake shore; therefore, any climatic change in the lake would not have an effect on the project and the project would not be sensitive to climate change.The Municipality that intervened on behalf of the Defendant agreed with the Defendant’s arguments. In November 2021, the court declared its judgment and annulled the decision of the Defendant. It ordered the Defendant to restart the screening process and reassess the need for an Environmental Impact Assessment, putting more emphasis on the climate change aspects of the project. The court found that climate protection analyses or climate risk assessments other than a brief table are not included. As such, the decision is therefore heavily unlawful with regard to clarifying the facts of the case and providing a reasoning to the decision. Friends of the Earth Hungary v. Veszprém County Government Office, Municipality of the Village of Tihany (Tribunal of Veszprém, Hungary).
Court upholds ruling that defendant must provide financial compensation for environmental damage caused by unlawful deforestation and degradation of native vegetation
On October 27, 2010, the Public Prosecutor’s Office of Mato Grosso filed a Public Civil Action (class action) against Nelson Noboru Yabuta, aiming to hold him accountable for environmental damage caused by the degradation of native vegetation. The lawsuit sought urgent injunctive relief, environmental regularization of the Luana I and II farms, and compensation for collective moral damages. The plaintiff accused Yabuta of illegally deforesting 119,584 hectares in a Permanent Preservation Area (APP), in Juara, Mato Grosso, without authorization from the environmental agency.
An initial injunction was issued, prohibiting any unlicensed activities on the farms. Subsequently, the court ruled in favor of the plaintiff, ordering Yabuta to pay 20,000 Brazilian Reals as compensation for collective moral damages resulting from the environmental harm. Both parties appealed. Yabuta argued that the Infraction Notice, which was one of the foundations of the lawsuit, had been annulled. The plaintiff contended that the court should recognize the obligations outlined in the Conduct Adjustment Agreement, a pact made between Yabuta and the state environmental agency, to strengthen its enforcement.
On February 21, 2017, the Court of Justice of Mato Grosso dismissed the appeals, upholding Yabuta’s conviction and his responsibility to compensate for collective moral damages. The court emphasized that the cancellation of the administrative infraction notice did not absolve
him of liability in other domains, as environmental crimes entail triple liability—criminal, administrative, and civil. It was proven that Yabuta had unlawfully deforested the APP and Legal Reserve of the property, disregarding the necessary authorization. His actions, driven by cattle-raising activities, posed a risk of forest desertification, thereby compromising the quality of life for the local population due to climate change and excessive greenhouse gas emissions (GHGs). Public Prosecutor’s Office of the State of Mato Grosso v. Nelson Noboru Yabuta (Mato Grosso, Brazil).
High Court issues ruling that environmental approval for coal-fired power station has expired and developer must pay costs of litigation
The environmental organization groundWork filed a motion requesting that South Africa’s High Court review and set aside the Department of Environmental Affair’s authorization to develop a 600 MW coal-fired power plant, the “Khanyisa Project,” without first considering the climate change impacts of the plant. They also challenge the Minister of Environmental Affairs’ rejection of groundWork’s application to appeal the authorization.
Petitioners argue this dismissal directly contradicts the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. This case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 24O(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. This is one of two court applications filed by groundWork in September 2017 to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area.
As the litigation unfolded, it emerged that the Khanyisa Project had breached the conditions of its environmental authorization and that its authorization had expired. The Department of Forestry, Fisheries and Environment (DFFE) agreed that the authorization was no longer valid. The Khanyisa Project's developer, ACWA, did not file answering papers and the matter proceeded on an unopposed basis.
On May 27, 2021, the High Court declared that the environmental approval for the planned 600MW Khanyisa coal-fired power station had expired. It ordered ACWA to pay the costs of the litigation. Trustees for the Time Being of GroundWork v. Minister of Environmental Affairs, ACWA Power Khanyisa Thermal Power Station RF (Pty) Ltd, Others (High Court, South Africa).
High Court issues ruling confirming that environmental authorization for coal-fired power plant has expired
The environmental organization groundWork has filed a motion requesting that South Africa’s High Court review and set aside the Department of Environmental Affair’s authorization to develop a 600 MW coal-fired power plant, the “KiPower Project,” without first considering the climate change impacts of the plant. They also challenge the Minister of Environmental Affairs’ decision to dismiss groundWork’s appeal of the authorization.
Petitioners argue this dismissal directly contradicts the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. This case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment (“EIA”)” under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 24O(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. This case is one of two court applications filed by groundWork in September 2017 to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area.
On May 3 2022, the High Court issued an order, by agreement between the parties, confirming that the environmental authorization for the planned 600MW KiPower coal-fired power station had expired. Trustees for the Time Being of the GroundWork Trust v. Minister of Environmental Affairs, KiPower (Pty) Ltd, and Others (High Court, South Africa).
NHRC states that South Korea’s climate mitigation response is insufficient to protecting human rights and that government must set additional GHG reduction targets
In 2020, forty one South Koreans, including farmers, fishermen, coastal residents, and youth filed a complaint with the National Human Rights Commission (NHRC) alleging that their human rights, including the right to life and the right to health, were violated by the climate crisis. The NHRC dismissed the petition, but later commissioned an investigation on the impact of climate change on human rights in July 2021 on its own. In January 2023, the NHRC, for the first time, issued its opinion on the climate crisis and human rights addressed to the President and the Government.
The NHRC opined that the state should recognize the protection and promotion of the human rights of all people in the context of the climate crisis as a fundamental obligation of the state and improve relevant laws and regulations to ensure that the climate crisis is approached from a human rights perspective. Specifically, the NHRC recognized that the individual fundamental rights violated by the climate crisis are virtually all human rights, including the right to life, the right to food, the right to sanitation, the right to health, the right to housing, the right to self-determination, and the right to education.
The NHRC also pointed out that the Framework Act On Carbon Neutrality And Green Growth For Coping With Climate Crisis (“Carbon Neutrality Act”) does not provide specific support measures for climate-vulnerable groups, and it urged the government to take comprehensive measures to protect climate-vulnerable groups and strengthen their adaptive capacity. According to Article 8 of the Carbon Neutrality Act, the nationally determined contribution (NDC) is to reduce GHG emissions by at least 35% of 2018 emissions by 2030. Article 3 of the Enforcement Decree of the same Act raises the NDC to 40% of 2018 emissions. However, the NHRC noted that even the enhanced NDC falls short of the reduction target set out in the IPCC's Sixth Assessment Report in 2022 (43% of 2019 emissions by 2030). In addition, the Carbon Neutrality Act does not specify GHG reduction targets beyond 2030, which could lead to intergenerational inequities in GHG reductions. The NHRC required the government to set additional GHG reduction targets.
Although the opinion of the NHRC does not bind the Government, this decision is the first opinion issued by a governmental body stating that the state bears an obligation to mitigate climate change, and that the current response is insufficient to protect the human rights of its people. Opinion of the National Human Rights Commission on the climate crisis and human rights (National Human Right Commission, South Korea).
Fair Advertising Commission upholds complaints and recommends that FIFA refrain from making unsubstantiated claims about climate neutrality in the future
In a concerted action with similar actions filed in the UK, France, Belgium and the Netherlands, Klima-Allianz, a Swiss-based coalition of 140 civil society organizations, filed a claim against FIFA claiming that FIFA’s advertising of the 2022 Football World Cup in Qatar as carbon neutral was misleading athletes, football fans and the 5 billion people expected to follow the event (which was held from November 20, 2022 until December 18, 2022 as the first ‘winter’ world cup ever). Counsel for the case are Avocat.e.s pour le climat.
The Fair Advertising Commission is a non-judicial body that examines complaints alleging violations of the Swiss Fairness Principles in Commercial Communication.
In June 2023, the Fair Advertising Commission upheld all five complaints (which were joined into one proceeding). After thorough review of the subject matter, the Commission recommended that FIFA refrain from making unsubstantiated claims in the future, particularly the claim that the 2022 FIFA World Cup in Qatar was climate or carbon-neutral. In substance, the Commission reiterated that strict standards apply when advertising carbon neutrality and that factual claims must be accurate and not misleading, which extends to environmental claims. For that matter, the Commission deferred to the International Chamber of Commerce’s Marketing and Advertising Code (Chapter D: Environmental Claims in Marketing Communications). KlimaAllianz v. FIFA (Switzerland, Fair Advertising Commission).
NEW CASES, MOTIONS, AND OTHER FILINGS
Complaint filed that Toyota’s environmental claims and net zero ambitions are contravened by current car production plans
Greenpeace Australia Pacific, with support from the Environmental Defenders Office, has filed a complaint with the Australian Competition and Consumer Commission (ACCC) requesting that the ACCC open an investigation into environmental claims made by Toyota, to determine whether these claims are misleading or deceptive. The complaint focuses on claims around the environmental performance of Toyota’s vehicles and the company’s net zero ambitions. Greenpeace alleges that Toyota’s net zero ambitions are contravened by its current car production plans, which do not include a rapid enough transition to electric vehicles, and that the company had lobbied to “halt, weaken, or delay vehicle emissions standards.” ACCC Toyota Environmental Claim (Australia Competition and Consumer Commission, Australia).
Request to open investigation against BP Senior Executives for committing a crime against humanity by knowingly causing and perpetuating climate change through the prioritization of profits from oil activities
Students for Climate Solutions New Zealand and the UK Youth Climate Coalition have submitted a request to the prosecutor of the International Criminal Court to open an investigation against BP Senior Executives. The submission argues that BP Senior Executives allegedly committed a crime against humanity by knowingly causing and perpetuating climate change while pursuing activities in the oil and gas industry. The submission alleges that since the 1950s, BP Senior Executives have been aware of the climate implications of the corporation’s oil and gas activities because of internal studies conducted into greenhouse gases. The results of these studies have allegedly been withheld from the public. The submission further argues that as of the 1990s, BP Senior Executives have admitted their role in perpetuating climate change in company documentaries where a link was made between the corporation’s activities and climate change.
In prioritizing profits from oil activities, BP Senior Executives are alleged to have engaged in the following harmful behaviors:
1. Creating doubt by sowing distrust in climate change science
2. Entrenching dependency on BP’s petroleum products on the false pretense that they are a necessary and viable solution to climate change
3. Causing delays to urgent climate policy by portraying climate change as a far-future issue 4. Fostering deception of governments and the wider public through misleading marketing of BP as a renewable energy company, using strategic communications to shift responsibilities for carbon emissions onto individuals, and promoting false solutions, such as yet-to-be-invented technology, that prolong the use of fossil fuels
5. Ensuring dominance through attempts to control and influence political processes via systematic lobbying and campaign financing.
The submission seeks damages from BP Senior Executives, pursuant to Article 8 of the Paris
Agreement, for their role in the issue of climate change. NZ Students for Climate Solutions and UK Youth Climate Coalition v. Board of BP (International Criminal Court).
Court to decide whether the environmental licensing of the Portocem Thermoelectric Plant is non-compliant with legal norms by failing to consider GHG emissions, water-related impacts, or indigenous people’s rights
On May 31st, 2023, the NGO Instituto Verdeluz, the Indigenous Council of the Anacé People of Japiman, and the Indigenous Association of the Anacé People of the Planalto Cauipe Village filed a Public Civil Action (environmental class-action) against the company Portocem Geração de Energia S.A. and the Secretary of the Environment of the State of Ceará (Secretaria do Meio Ambiente do Estado do Ceará – SEMACE). The plaintiffs seek the suspension and subsequent annulment of the environmental licensing process of the Portocem Thermoelectric Plant (UTE), powered by natural gas, which is to be installed in the Pecém Industrial and Port Complex (CIPP). They claim there is non-compliance with legal norms and several omissions in the Environmental Impact Study (EIA), including (i) the invisibilization of indigenous communities in the vicinity of the project, (ii) the disregard of impacts related to water resources, (iii) the disregard of potential socioeconomic impacts, (iv) the underestimation of damage to health, and (v) the disregard of climate impacts. They also believe that there was no adequate analysis of synergistic and cumulative impacts with other enterprises in the region, considering their insertion in an Industrial Complex. In relation to climate impacts, the plaintiffs argue that the EIA failed to list important consequences for climate stability. They mention the reports of the Intergovernmental Panel on Climate Change (IPCC) and how the use of fossil fuels is incompatible with the guiding principles of the national energy policy. They argue that Brazil and the state of Ceará have made a legal commitment to reduce greenhouse gas (GHG) emissions, which goes against the implementation of a new gas-fired thermoelectric plant. The plaintiffs also point out that the Northeast is one of the regions in Brazil most vulnerable to climate change and stress the importance of the risk analysis of the project to the water security of the region, considering that the water resources of the Northeast are under pressure from climate change. On top of the problems in the impact assessment, the plaintiffs also state flaws in the licensing process due to the lack of effective public participation. In this sense, they question the lack of prior, free, and informed consultation with the indigenous Anacé people. They believe that there was a violation of national and international norms of indigenous peoples' rights, especially Convention 169 of the International Labor Organization (ILO).
In light of these various irregularities, the plaintiffs request, in an injunction, the suspension of the installation license granted by SEMACE as well as the determination that Portocem Energia S.A. refrain from starting the implementation work. On these merits, they request that the licensing process be declared null and void and that a new environmental licensing process be conducted with the presentation of a new EIA that corrects the flaws pointed out and includes prior, free, informed and good faith consultation with the affected indigenous peoples.
A preliminary decision was handed down dismissing the injunction for lack of urgency and probability of the right. However, a decision on the merits is still pending. Instituto Verdeluz and others v. Portocem Geração de Energia S.A. and SEMACE (Ceará Federal Court, Brazil).
Lawsuit filed alleging that Turkey’s updated Nationally Determined Contribution (NDC) is in violation of human rights
Three young climate activists in Turkey brought a new case to the Council of State on May 8th 2023. Turkey submitted the country's “Updated First NDC” to the UNFCCC Secretariat on April 13th, 2023. The NDC states that “Turkey confirms to reduce its greenhouse gas (GHG) emissions by 41% through 2030 (695 Mt CO2 eq in year 2030) compared to the Business as Usual (BAU) scenario given in Turkey's first NDC (also INDC) considering 2012 as the base year (reference year). Turkey's updated first NDC is economy-wide and includes comprehensive mitigation and adaptation actions as well as consideration of means of implementation. Turkey intends to peak its emissions at the latest in the year 2038.”
Alleging that these goals are not sufficient, the Claimants applied to the Council of State and filed a lawsuit against President Recep Tayyip Erdoğan and The Ministry of Environment, Urbanization and Climate Change, requesting the annulment of NDC. The Claimants asserted that the updated Nationally Determined Contributions (NDCs) submitted by Turkey are “climate inaction rather than climate action.” Underlining the lack of a transparent process in the preparation of the NDC, they demanded the annulment and renewal of Turkey's unscientific, ineffective, and inadequate climate target.
In their campaign, declaring that holding climate change at 1.5 degrees is a human right, the Claimants state that Turkey's decision to increase greenhouse gas emissions, which is incompatible with the Paris Climate Agreement’s goal of holding climate change at 1.5 degrees, violates their human rights. The progress of the climate crisis violates the right to live, the right to intergenerational equality, the right to health, the right to live in a healthy and balanced environment, and many others which were protected by the Turkish Constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. A.S. & S.A. & E.N.B. v. Presidency of Turkey & The Ministry of Environment, Urbanization and Climate Change (Council of State, Turkey).
CEMDA appeals court decision that they have no legal standing to file lawsuit alleging that increasing legacy transmission rates that affect renewable energy projects is unconstitutional
The Mexican Center for Environmental Law (CEMDA) challenged the Mexican Electricity Commission’s resolution increasing legacy transmission rates that affect renewable energy projects. Legacy energy projects refer to those energy projects that are regulated by the legal regime that existed prior to Mexico’s 2014 energy reform. Under such regimes, energy projects receive special transmission rates, among other features. In the challenged resolution, the Mexican Electricity Commission increased the transmission rates that such projects must pay by between 500% and 800%, according to CEMDA.
The plaintiffs considered that the new transmission rates transgress Mexico’s international commitments on environmental and energy matters. They also highlighted that the increase in the rates is unjustified, disproportionate, and will hamper Mexico’s transition to clean energy sources. Finally, they considered that the obstruction of clean energy sources through the increased rates constitutes a violation of the right to a healthy environment since it will lead to an increased dependence on fossil fuels.
The First District Court in Administrative Matters Specialized in Antitrust, Broadcasting and Telecommunications granted a stay of the implementation of the price increase in October 2020 pending the final decision of the trial. In the decision to stay the new rates, the District Court considered that the new transmission rates could signify an increase in greenhouse gas emissions that jeopardize human health, thus potentially infringing upon the right to a healthy environment.
In December 2021, the Third District Court in Administrative Matters Specialized in Antitrust, Broadcasting, and Telecommunications was created by the Federal Judiciary Council, and the case was reassigned to it under the number 232/2021.
On May 15, 2023 the Judge decided that the plaintiff, as an NGO, did not have legal standing to file the lawsuit because the plaintiff did not offer evidence that would affirm that the challenged acts affect the environment. Furthermore, the Court considered that even though the civil organization has, as its purpose, the legal defense of the right to a healthy environment, this is not enough to prove its legal standing. Therefore, the case was dismissed.
On June 2, 2023, CEMDA challenged the Court’s decision. The appeal is pending resolution by the appellate Collegiate Court. CEMDA v. Rise of Legacy Transmission Rates (District Court, Mexico).
Court to decide whether South Korean plan to construct an airport through the reclamation of tidal flats is inconsistent with carbon neutrality and adverse to environmental rights
On June 30, 2022, the defendant, the Minister of Land, Infrastructure, and Transport, established a basic plan to construct an airport on a site secured through the reclamation of the Saemangeum tidal flats. The plaintiffs, 1,308 South Korean citizens who oppose the construction of the airport, filed a lawsuit to cancel the basic plan.
For the establishment of the basic plan, a feasibility analysis should prove that the airport construction project is inevitable even if it alters the natural environment. The plaintiffs argued that the pre-feasibility study report had already confirmed that the project would not be economically feasible. The plaintiff claimed that, considering the value of tidal flats as carbon sinks is becoming increasingly important, the reclamation of tidal flats for an unnecessary new airport for aircraft—the most carbon intensive emitter in transportation—is also inconsistent with the carbon neutrality policy of the government. The plaintiff further argued that the basic plan violated the constitutional duty of the state to protect its citizen from climate disasters since the constitutional environmental right imposes a responsibility on the state to protect the environment for the enjoyment of future generations. Yeon-Tae Kim et al. v. Minister of Land, Infrastructure and Transport (Seoul Administrative Court, South Korea).